A number of courts have held that Rule 23(a)(4)’s adequacy requirement mandates two inquiries:

(1) whether there are irreconcilable conflicts of interest between the class representative and the absent class members, and
(2) willingness and ability of the representative to take an active role in and control the litigation and to protect the interests of absentees.

The law on what constitutes a conflict of interest is well-developed. But what does "willingness and ability" mean? The Eighth Circuit recently shed some light on the question in the course of deciding an appeal in a civil-rights lawsuit, Rattray v. Woodbury County.

In 2006, Maureen Rattray was arrested for misdemeanor driving under the influence. While processing her after arrest, Woodbury County officials subjected her to strip and cavity searches. Rattray sued, and, eight months after filing her original complaint, she requested leave to amend her complaint to add class allegations because discovery had revealed Woodbury County had a policy of subjecting arrestees to strip searches. Six months later, Rattray filed a motion for class certification.

Woodbury County opposed the motion. As one might expect, it argued that individualized issues predominated over common issues. But it also argued that she was an inadequate class representative. Specifically, it

challenged Rattray’s assertion that she did not move for class certification earlier because she did not learn of the blanket strip search policy until discovery. Paragraph 40 of Rattray’s initial complaint, according to the County, showed that Rattray was aware of the policy when she filed the complaint. While not questioning the capabilities of Rattray’s counsel, the County argued that the delay in moving for class certification suggested that Rattray did not meet Rule 23(a)(4)’s requirement that the class representative would "fairly and adequately protect the interests of the class."

The district court accepted the County’s argument, noting that the six-month delay between the filing of the amended complaint and the motion to certify indicated that Rattray lacked the necessary zeal to represent a class, and her counsel lacked the necessary experience.

Rattray appealed, arguing that the "many depositions" and "hundreds of pages of documents" her discovery efforts had unearthed indicated that she was willing and able to pursue a class action. But the Eighth Circuit was unconvinced. As it put it:

Rattray’s failure to move to certify with alacrity undermines confidence in the zeal with which she would represent the interests of absent class members. A failure of the putative class representative to assure the court that it will vigorously pursue the interests of class members is a sufficient basis to deny certification.

So what can we learn from this case? In some cases, adequacy requires timely action. If a plaintiff drags her heels in prosecuting a class action, that may serve as evidence that she is not an adequate class representative.