Class Actions Class Action Lawsuits: How to Qualify, Start and Join a Case

  1. The following article explains what a class action lawsuit is, how you can qualify or start a class action, join a class action or opt out of a class action lawsuit. It will answer the most frequently asked questions you might have about lawsuits by a large number of people against one or few defendants for a similar issue.

    What is a Class Action Lawsuit?

    A class action is a civil lawsuit where a group or "class" is affected in the same manner or form. One or more representatives of the group ("class representatives") file suit on behalf the class and a judge will initially decide whether or not the claims of the representatives arise from uniform facts or law common to all class members. For example, people injured by smoking cigarettes sued tobacco manufacturers as a "class" of people who were harmed due to the information about the dangers of smoking that were withheld by the tobacco manufacturers.

    Class action suits can be both offensive and defensive in nature, although frequently the group of affected people consists of injured plaintiffs. Such an example of a plaintiff class action case might be the shareholders of a corporation that has been riddled with fraud and a group of people harmed by the same manufacturing defect. While a person may have suffered damages, the amount of damages suffered alone might not be great enough to justify the expense involved of bringing a lawsuit. As a result, the wrongdoer would never be punished because the cost of justice is too great. But if enough people have been harmed in the same manner, the combined damages of all of their harm might be sufficient to justify the cost of the lawsuit. The process in which a class is "certified" may be found in Rule 23 of the Federal Rules of Civil Procedure.

    Types of Class Action Lawsuits

    Virtually all class actions involve money damages. Some cases concern issues where a fund of money made available to victims is inadequate to fully compensate all of the class members. Other cases involve “injunctive relief” whereby the victims are seeking that the court enforce or prevent the defendant from performing a certain act. For example, a court might enjoin a local police activity that could be considered unconstitutional. At other times, a “declaratory judgment” is sought where the class representatives seek the court's decision in clarifying the exact rights and obligations of each party.

    What are the Requirements to Bring a Class Action Lawsuit

    Rule 23 of the Federal Rules of Civil Procedure ("FRCP") is the section of law that typically is applicable to class actions in the federal courts. Most states have adopted similar rules and procedures so that the few "class members" can adequately represent in court the large number of those afflicted. The following are the set of criteria for a class action suit:
    • Numerosity

      The number of people affected must be so large that it is far more practical to have one action by a few representatives govern the entire incident rather than have each person try the action individually. There is no exact number although there are factors that would make it more or less likely that your suit could potentially be a class action.
    • Commonality

      This requirement questions whether a significant number of people may be afflicted by a similar set of facts or legal questions. There must be a "commonality" of claims or questions of law within the class of people afflicted so that it is efficient and possible to adjudicate the entire matter at one time. If everyone brought the same claim about an air bag defect in a specific model car the courts would be inundated with adjudication of the same case with the same set of facts. By combining these cases into one case, the court can decide upon the same set of facts or legal questions at one time.
    • Typicality

      The "class representatives" who actually file and try the case (and are the plaintiffs named in the case) must have the same issues to adjudicate although they need not be exactly identical. For example, everyone who has the same model car and has the same car manual would each be equally aware of how the airbag system works and what actions in the car should and should not be done with regard to the proper working of the airbag system.
    • Adequacy

      The class representatives must be able to fairly and adequately represent the interests of the entire class and not just their own interests. The court must believe that the representatives will not just be zealous prosecutors of their own claims and harms but will also seek adequate remedy for others in the class who may have slight differences in how much or to what extent these members have been harmed.

    If these criteria are met, then a court can hear a case on money damages (e.g. damage to compensate one from the deterioration of health due to smoking), make a case concerning a declaratory judgment (the court will define the rights and obligations of each party of the case concerning a specific issue) or issue an injunction to enjoin one party and compel them to do or not to do something (e.g. to restrain a local police department from continuing acts that might be deemed unconstitutional.)

    How to Join a Class Action Lawsuit

    The first step before a court certifies class actions involves an investigation and conclusion that there are too many class members to each be named an individual party in a lawsuit. The case has common facts or legal elements within which it makes sense for the court to efficiently adjudicate the matter in one hearing. Typically class members are given "notice" and considered part of the action unless they choose not to participate and "opt out" of the action. This notice is sent in cases concerning money damages and there will usually be information and instructions about what to do in order to participate or opt out of the action. Individuals who opt out may hire their own lawyers and pursue a private action or seek to "intervene" and participate in the class action individually. If a member does not opt out of the action, the member may then be bound by the court's decision. Notice may not be required when a class action involves injunctive or declaratory relief.

    Opting Out of a Class Action Lawsuit

    When should one choose to opt out of a class and pursue an individual remedy? This question is impossible to answer for everyone and the answer depends upon the variables that exist in an individual’s unique set of circumstances. Frequently, there may be a large number of people affected but the damages actually paid out in class action suits might be minute. For example, if a monitor manufacturer was charged with using used parts in equipment sold as new and as a result each class member would be paid $7.50 compensation, it would seem that the cost of litigation might prove impractical to try the case on an individual basis. However, if an individual has a unique set of circumstances that might vary from the class, perhaps a reseller whose trade name has now been forever tarnished, it may prove worthwhile to opt out of the class action and file suit individually.
    Lawsuits, Disputes:
    Class Actions

    Michael Wechsler

    Michael Wechsler
    Michael M. Wechsler is an experienced attorney, founder of, A. Research Scholar at Columbia Business School and of-counsel to Kaplan, Williams & Graffeo, LLC. He was also an SVP and chief Internet strategist at and legal consultant at Kroll Ontrack, a leading service e-discovery and computer forensics service provider.


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