Class certification

A class action,^[a] also known as a class action lawsuit, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member or members of that group. The class action originated in the United States and is still predominantly an American phenomenon, but Canada, as well as several European countries with civil law, have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.

Description

In a typical class action, a plaintiff sues a defendant or a number of defendants on behalf of a group, or class, of absent parties.^[2] This differs from a traditional lawsuit, where one party sues another party, and all of the parties are present in court. Although standards differ between states and countries, class actions are most common where the allegations usually involve at least 40 people who the same defendant has injured in the same way.^[2] Instead of each damaged person bringing one's own lawsuit, the class action allows all the claims of all class members—whether they know they have been damaged or not—to be resolved in a single proceeding through the efforts of the representative plaintiff(s) and appointed class counsel.^[2]

History

England and the United Kingdom

The antecedent of the class action was what modern observers call "group litigation," which appears to have been quite common in medieval England from about 1200 onward.^[3]^: 38 These lawsuits involved groups of people either suing or being sued in actions at common law. These groups were usually based on existing societal structures like villages, towns, parishes, and guilds. Unlike modern courts, the medieval English courts did not question the right of the actual plaintiffs to sue on behalf of a group or a few representatives to defend an entire group.^[3]^: 38–40

From 1400 to 1700, group litigation gradually switched from being the norm in England to the exception.^[3]^: 100 The development of the concept of the corporation led to the wealthy supporters of the corporate form becoming suspicious of all unincorporated legal entities, which in turn led to the modern concept of the unincorporated or voluntary association.^[3]^: 124–25 The tumultuous history of the Wars of the Roses and then the Star Chamber resulted in periods during which the common law courts were frequently paralyzed, and out of the confusion the Court of Chancery emerged with exclusive jurisdiction over group litigation.^[3]^: 125–32

By 1850, Parliament had enacted several statutes on a case-by-case basis to deal with issues regularly faced by certain types of organizations, like joint-stock companies, and with the impetus for most types of group litigation removed, it went into a steep decline in English jurisprudence from which it never recovered.^[3]^: 210–12 It was further weakened by the fact that equity pleading, in general, was falling into disfavor, which culminated in the Judicature Acts of 1874 and 1875.^[3]^: 210–12 Group litigation was essentially dead in the United Kingdom after 1850.

United States

Class actions survived in the United States thanks to the influence of Supreme Court Associate Justice Joseph Story, who imported it into US law through summary discussions in his two equity treatises as well as his opinion in West v. Randall (1820).^[3]^: 219–20 However, Story did not necessarily endorse class actions, because he "could not conceive of a modern function or a coherent theory for representative litigation."^[3]^: 219–20

The oldest predecessor to the class-action rule in the United States was in the Federal Equity Rules, specifically Equity Rule 48, promulgated in 1842.

Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties.^[4]

This allowed for representative suits in situations where there were too many individual parties (which now forms the first requirement for class-action litigation – numerosity).^[5] However, this rule did not allow such suits to bind similarly situated absent parties, which rendered the rule ineffective.^[3]^: 221 Within ten years, the Supreme Court interpreted Rule 48 in such a way so that it could apply to absent parties under certain circumstances, but only by ignoring the plain meaning of the rule.^[3]^{: 221–222} In the rules published in 1912, Equity Rule 48 was replaced with Equity Rule 38 as part of a major restructuring of the Equity Rules, and when federal courts merged their legal and equitable procedural systems in 1938, Equity Rule 38 became Rule 23 of the Federal Rules of Civil Procedure.

Modern developments

A major revision of the FRCP in 1966 radically transformed Rule 23, made the opt-out class action the standard option, and gave birth to the modern class action. Entire treatises have been written since to summarize the huge mass of law that sprang up from the 1966 revision of Rule 23.^[3]^: 229 Just as medieval group litigation bound all members of the group regardless of whether they all actually appeared in court, the modern class action binds all members of the class, except for those who choose to opt out (if the rules permit them to do so).

The Advisory Committee that drafted the new Rule 23 in the mid-1960s was influenced by two major developments. First was the suggestion of Harry Kalven Jr. and Maurice Rosenfield in 1941 that class-action litigation by individual shareholders on behalf of all shareholders of a company could effectively supplement direct government regulation of securities markets and other similar markets.^[3]^: 232 The second development was the rise of the civil rights movement, environmentalism and consumerism.^[3]^{: 240–244} The groups behind these movements, as well as many others in the 1960s, 1970s and 1980s, all turned to class actions as a means for achieving their goals. For example, a 1978 environmental law treatise reprinted the entire text of Rule 23 and mentioned "class actions" 14 times in its index.^[3]^{: 244–245}

Businesses targeted by class actions for inflicting massive aggregate harm have sought ways to avoid class actions altogether. In the 1990s, the US Supreme Court issued several decisions that strengthened the "federal policy favoring arbitration".^[6] In response, lawyers have added provisions to consumer contracts of adhesion called "collective action waivers", which prohibit those signing the contracts from bringing class-action suits. In 2011, the US Supreme Court ruled in a 5–4 decision in AT&T Mobility v. Concepcion that the Federal Arbitration Act of 1925 preempts state laws that prohibit contracts from disallowing class-action lawsuits, which will make it more difficult for consumers to file class-action lawsuits. The dissent pointed to a saving clause in the federal act which allowed states to determine how a contract or its clauses may be revoked.^[7]

In two major 21st-century cases, the Supreme Court ruled 5–4 against certification of class actions due to differences in each individual members' circumstances: first in Wal-Mart v. Dukes (2011) and later in Comcast Corp. v. Behrend (2013).^[8]

Companies may insert the phrase "may elect to resolve any claim by individual arbitration" into their consumer and employment contracts to use arbitration and prevent class-action lawsuits.^[9]

Rejecting arguments that they violated employees' rights to collective bargaining, and that modestly-valued consumer claims would be more efficiently litigated within the parameters of one lawsuit, the U.S. Supreme Court, in Epic Systems Corp. v. Lewis (2018), enabled the use of class action waivers. Citing its deference to freedom to contract principles, the Epic Systems opinion opened the door dramatically to the use of these waivers as a condition of employment, consumer purchases and the like. Some commentators in opposition to the ruling see it as a "death knell" to many employment and consumer class actions, and have increasingly pushed for legislation to circumvent it in hopes of reviving otherwise-underrepresented parties' ability to litigate on a group basis. Supporters (mostly pro-business) of the high court's ruling argue its holding is consistent with private contract principles. Many of those supporters had long-since argued that class action procedures were generally inconsistent with due process mandates and unnecessarily promoted litigation of otherwise small claims—thus heralding the ruling's anti-litigation effect.

In 2017, the US Supreme Court issued its opinion in Bristol-Meyer Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), holding that over five hundred plaintiffs from other states cannot bring a consolidated mass action against the pharmaceutical giant in the State of California. This opinion may arguably render nationwide mass action and class action impossible in any single state besides the defendant's home state.

In 2020, the 11th Circuit Court of Appeals found incentive awards are impermissible. Incentive awards are a relatively modest payment made to class representatives as part of a class settlement. The ruling was a response to an objector who claimed Rule 23 required that the fee petition be filed before the time frame for class member objections to be filed; and payments to the class representative violates doctrine from two US Supreme Court cases from the 1800s.^[10]^[11]

Statistics

As of 2010, there was no publicly maintained list of nonsecurities class-action settlements,^[12] although a securities class-action database exists in the Stanford Law School Securities Class Action Clearinghouse and several for-profit companies maintain lists of the securities settlements. One study of federal settlements required the researcher to manually search databases of lawsuits for the relevant records, although state class actions were not included due to the difficulty in gathering the information.^[12] Another source of data is US Bureau of Justice Statistics Civil Justice Survey of State Courts, which offers statistics for the year 2005.^[13]

Advantages

Proponents of class actions state that they offer a number of advantages^[14] because they aggregate many individualized claims into one representational lawsuit.

First, aggregation can increase the efficiency of the legal process, and lower the costs of litigation.^[15] In cases with common questions of law and fact, aggregation of claims into a class action may avoid the necessity of repeating "days of the same witnesses, exhibits and issues from trial to trial". Jenkins v. Raymark Indus. Inc., 782 F.2d 468, 473 (5th Cir. 1986) (granting certification of a class action involving asbestos).

Second, a class action may overcome "the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights". Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 388, 344 (7th Cir. 1997)). "A class action solves this problem by aggregating the relatively paltry potential recoveries into something worth someone's (usually an attorney's) labor." Amchem Prods., Inc., 521 U.S. at 617 (quoting Mace, 109 F.3d at 344). In other words, a class action ensures that a defendant who engages in widespread harm – but does so minimally against each individual plaintiff – must compensate those individuals for their injuries. For example, thousands of shareholders of a public company may have losses too small to justify separate lawsuits, but a class action can be brought efficiently on behalf of all shareholders. Perhaps even more important than compensation is that class treatment of claims may be the only way to impose the costs of wrongdoing on the wrongdoer, thus deterring future wrongdoing.

Third, class-action cases may be brought to purposely change behavior of a class of which the defendant is a member. Landeros v. Flood (1976) was a landmark case decided by the California Supreme Court that aimed at purposefully changing the behavior of doctors, encouraging them to report suspected child abuse. Otherwise, they would face the threat of civil action for damages in tort proximately flowing from the failure to report the suspected injuries. Previously, many physicians had remained reluctant to report cases of apparent child abuse, despite existing law that required it.

Fourth, in "limited fund" cases, a class action ensures that all plaintiffs receive relief and that early-filing plaintiffs do not raid the fund (i.e., the defendant) of all its assets before other plaintiffs may be compensated. See Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999). A class action in such a situation centralizes all claims into one venue where a court can equitably divide the assets amongst all the plaintiffs if they win the case.

Finally, a class action avoids the situation where different court rulings could create "incompatible standards" of conduct for the defendant to follow. See Fed. R. Civ. P. 23(b)(1)(A). For example, a court might certify a case for class treatment where a number of individual bond-holders sue to determine whether they may convert their bonds to common stock. Refusing to litigate the case in one trial could result in different outcomes and inconsistent standards of conduct for the defendant corporation. Thus, courts will generally allow a class action in such a situation. See, e.g., Van Gemert v. Boeing Co., 259 F. Supp. 125 (S.D.N.Y. 1966).

Whether a class action is superior to individual litigation depends on the case and is determined by the judge's ruling on a motion for class certification. The Advisory Committee Note to Rule 23, for example, states that mass torts are ordinarily "not appropriate" for class treatment. Class treatment may not improve the efficiency of a mass tort because the claims frequently involve individualized issues of law and fact that will have to be re-tried on an individual basis. See Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996) (rejecting nationwide class action against tobacco companies). Mass torts also involve high individual damage awards; thus, the absence of class treatment will not impede the ability of individual claimants to seek justice. Other cases, however, may be more conducive to class treatment.^{[citation needed]}

The preamble to the Class Action Fairness Act of 2005, passed by the United States Congress, found:

Class-action lawsuits are an important and valuable part of the legal system when they permit the fair and efficient resolution of legitimate claims of numerous parties by allowing the claims to be aggregated into a single action against a defendant that has allegedly caused harm.

Criticisms

There are several criticisms of class actions.^[16]^[17]^[18] The preamble to the Class Action Fairness Act stated that some abusive class actions harmed class members with legitimate claims and defendants that have acted responsibly, adversely affected interstate commerce, and undermined public respect for the country's judicial system.

Class members often receive little or no benefit from class actions.^[19] Examples cited for this include large fees for the attorneys, while leaving class members with coupons or other awards of little or no value; unjustified awards are made to certain plaintiffs at the expense of other class members; and confusing notices are published that prevent class members from being able to fully understand and effectively exercise their rights.^[19]

For example, in the United States, class lawsuits sometimes bind all class members with a low settlement. These "coupon settlements" (which usually allow the plaintiffs to receive a small benefit such as a small check or a coupon for future services or products with the defendant company) are a way for a defendant to forestall major liability by precluding many people from litigating their claims separately, to recover reasonable compensation for the damages. However, existing law requires judicial approval of all class-action settlements, and in most cases, class members are given a chance to opt out of class settlement, though class members, despite opt-out notices, may be unaware of their right to opt-out because they did not receive the notice, did not read it or did not understand it.

The Class Action Fairness Act of 2005 addresses these concerns. An independent expert may scrutinize coupon settlements before judicial approval in order to ensure that the settlement will be of value to the class members (28 U.S.C.A. 1712(d)). Further, if the action provides for settlement in coupons, "the portion of any attorney's fee award to class counsel that is attributable to the award of the coupons shall be based on the value to class members of the coupons that are redeemed". 28 U.S.C.A. 1712(a).

A common critique is that class actions are a form of judicially sanctioned extortion.^[20] The extortion thesis was first articulated by law professor Milton Handler, who published a famous law review article in 1971 calling the class action a form of "legalized blackmail".^[20] It has garnered the support of a significant minority of the justices of the U.S. Supreme Court, along with prominent judges like Henry Friendly and Richard Posner.^[20] However, empirical studies have generally found the extortion thesis to be "overstated".^[20]

Ethics

Class action cases present significant ethical challenges. Defendants can hold reverse auctions and any of several parties can engage in collusive settlement discussions. Subclasses may have interests that diverge greatly from the class but may be treated the same. Proposed settlements could offer some groups (such as former customers) much greater benefits than others. In one paper presented at an ABA conference on class actions in 2007, authors commented that "competing cases can also provide opportunities for collusive settlement discussions and reverse auctions by defendants anxious to resolve their new exposure at the most economic cost".^[21]

Defendant class action

Although normally plaintiffs are the class, defendant class actions are also possible. For example, in 2005, the Roman Catholic Archdiocese of Portland in Oregon was sued as part of the Catholic priest sex-abuse scandal. All parishioners of the Archdiocese's churches were cited as a defendant class. This was done to include their assets (local churches) in any settlement.^[22] Where both the plaintiffs and the defendants have been organized into court-approved classes, the action is called a bilateral class action.

Mass actions

In a class action, the plaintiff seeks court approval to litigate on behalf of a group of similarly situated persons. Not every plaintiff looks for or could obtain such approval. As a procedural alternative, plaintiff's counsel may attempt to sign up every similarly situated person that counsel can find as a client. Plaintiff's counsel can then join the claims of all of these persons in one complaint, a so-called "mass action", hoping to have the same efficiencies and economic leverage as if a class had been certified.

Because mass actions operate outside the detailed procedures laid out for class actions, they can pose special difficulties for both plaintiffs, defendants, and the court. For example, settlement of class actions follows a predictable path of negotiation with class counsel and representatives, court scrutiny, and notice. There may not be a way to uniformly settle all of the many claims brought via a mass action. Some states permit plaintiff's counsel to settle for all the mass action plaintiffs according to a majority vote, for example. Other states, such as New Jersey, require each plaintiff to approve the settlement of that plaintiff's own individual claims.

Class action legislation

Argentina

Class actions were recognized in "Halabi" leading case (Supreme Court, 2009).

Australia and New Zealand

Class actions became part of the Australian legal landscape only when the Federal Parliament amended the Federal Court of Australia Act in 1992 to introduce "representative proceedings",^[23] the equivalent of the American "class actions".^[24]

Likewise, class actions appeared slowly in the New Zealand legal system. However, a group can bring litigation through the action of a representative under the High Court Rules which provide that one or a multitude of persons may sue on behalf of, or for the benefit of, all persons "with the same interest in the subject matter of a proceeding". The presence and expansion of litigation funders have been playing a significant role in the emergence of class actions in New Zealand. For example, the "Fair Play on Fees" proceedings in relation to penalty fees charged by banks were funded by Litigation Lending Services (LLS), a company specializing in the funding and management of litigation in Australia and New Zealand. It was the biggest class-action suit in New Zealand history.^[25]^[26]

Austria

The Austrian Code of Civil Procedure (Zivilprozessordnung – ZPO) does not provide for a special proceeding for complex class-action litigation. However, Austrian consumer organizations (Verein für Konsumenteninformation (VKI) and the Federal Chamber of Labour / Bundesarbeitskammer) have brought claims on behalf of hundreds or even thousands of consumers. In these cases, the individual consumers assigned their claims to one entity, who has then brought an ordinary (two-party) lawsuit over the assigned claims. The monetary benefits were redistributed among the class. This technique, labeled as "class action Austrian style," allows for a significant reduction of overall costs. The Austrian Supreme Court, in a judgment, confirmed the legal admissibility of these lawsuits under the condition that all claims are essentially based on the same grounds.

The Austrian Parliament unanimously requested the Austrian Federal Minister for Justice to examine the possibility of new legislation providing for a cost-effective and appropriate way to deal with mass claims. Together with the Austrian Ministry for Social Security, Generations and Consumer Protection, the Justice Ministry opened the discussion with a conference held in Vienna in June 2005. With the aid of a group of experts from many fields, the Justice Ministry began drafting the new law in September 2005. With the individual positions varying greatly, a political consensus could not be reached.^[27]

Canada

Provincial laws in Canada allow class actions. All provinces permit plaintiff classes and some permit defendant classes. Quebec was the first province to enact class proceedings legislation, in 1978. Ontario was next, with the Class Proceedings Act, 1992. As of 2008, 9 of 10 provinces had enacted comprehensive class actions legislation. In Prince Edward Island, where no comprehensive legislation exists, following the decision of the Supreme Court of Canada in Western Canadian Shopping Centres Inc. v. Dutton, 2 S.C.R. 534, class actions may be advanced under a local rule of court. The Federal Court of Canada permits class actions under Part V.1 of the Federal Courts Rules.

Legislation in Saskatchewan, Manitoba, Ontario, and Nova Scotia expressly or by judicial opinion has been read to allow for what are informally known as national "opt-out" class actions, whereby residents of other provinces may be included in the class definition and potentially be bound by the court's judgment on common issues unless they opt-out in a prescribed manner and time. Court rulings have determined that this permits a court in one province to include residents of other provinces in the class action on an "opt-out" basis.

Judicial opinions have indicated that provincial legislative national opt-out powers should not be exercised to interfere with the ability of another province to certify a parallel class action for residents of other provinces. The first court to certify will generally exclude residents of provinces whose courts have certified a parallel class action. However, in the Vioxx litigation, two provincial courts certified overlapping class actions whereby Canadian residents were class members in two class actions in two provinces.^[28] Both decisions are under appeal.

Other legislation may provide for representative actions on behalf of a large number of plaintiffs, independent of class action procedures. For instance, under Ontario's Condominium Act, a condominium's governing corporation may launch a lawsuit on behalf of the owners for damage to the condominium's common elements, even though the corporation does not own the common elements.

The largest class action suit in Canada was settled in 2005 after Nora Bernard initiated efforts that led to an estimated 79,000 survivors of Canada's residential school system suing the Canadian government. The settlement amounted to upwards of $5 billion.^[29]

Chile

Chile approved class actions in 2004.^[30] The Chilean model is technically an opt-out issue class action, followed by a compensatory stage which can be collective or individual. This means that the class action is designed to declare the defendant generally liable with erga omnes effects if and only if the defendant is found liable, and the declaratory judgment can be used then to pursue damages in the same procedure or in individual ones in different jurisdictions. If the latter is the case, the liability cannot be discussed, but only the damages.^[31] There under the Chilean procedural rules, one particular case works as an opt-out class action for damages. This is the case when defendants can identify and compensate consumers directly, i.e. because it is their banking institution. In such cases, the judge can skip the compensatory stage and order redress directly. Since 2005 more than 100 cases have been filed, mostly by Servicio Nacional del Consumidor , the Chilean consumer protection agency. Salient cases have been Condecus v. BancoEstado^[32] and SERNAC v. La Polar.^[33]

France

Under French law, an association can represent the collective interests of consumers; however, each claimant must be individually named in the lawsuit. On January 4, 2005, President Chirac urged changes that would provide greater consumer protection. A draft bill was proposed in April 2006 but did not pass.

Following the change of majority in France in 2012, the new government proposed introducing class actions into French law. The project of "loi Hamon" of May 2013 aimed to limit the class action to consumer and competition disputes. The law was passed on March 1, 2014.^[34]

Germany

Class actions are generally not permitted in Germany, as German law does not recognize the concept of a targeted class being affected by certain actions. This requires each plaintiff to individually prove that they were affected by an action, and present their individual damages, and prove the causality between both parties.

Joint litigation (Streitgenossenschaft) is a legal act that may permit plaintiffs that are in the same legal community with respect to the dispute, or are entitled by the same factual or legal reason. These are not typically regarded as class action suits, as each individual plaintiff is entitled to compensation for their individual, incurred damages and not as a result of being a member of a class.

The combination of court cases (Prozessverbindung) is another method that permits a judge to combine multiple separate court cases into a single trial with a single verdict. According to § 147 ZPO, this is only permissible if all cases are regarding the same factual and legal event and basis.

Mediation Procedure

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