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Class Action Litigation
This page is intended to provide basic information about class actions. Click on one of the links below to jump to that section:
What is a Class Action?
A class action is a type of lawsuit that allows a large number of peoples’ or entities’ claims to be combined and heard as part of a single lawsuit. The class action is a procedural device created to provide an efficient and economical way for courts to resolve many similar claims. A class action is intended to be a “representative” lawsuit. In other words, a ruling or jury determination as to the particular people who file the class action (called the “class representatives”) will apply to and bind all of the people in the class (called the “class members”) because of the similarity of their legal and factual claims. 
Who Can Bring a Class Action?
Almost anyone who claims economic or personal injury can file a class action. People who file a class action are called “class representatives.”
What are Class Members and How is it Determined Who Will Be a Class Member?
“Class representatives” sue on behalf of themselves and “class members.” Class members consist of all people who the class representatives contend were similarly harmed. Class representatives and their attorneys initially define the class and its class members by including a “class definition” in the complaint, the paper filed to begin all lawsuits. Ultimately, the court determines who the class members are by approving the class definition in its class certification decision.
Were Class Actions Always Permitted?
Class actions did not always exist. In 1966, the Federal Rules Advisory Committee recommended adoption of the modern class action rule in the federal court system. In doing so, the Advisory Committee made clear that the new class action rule was not suitable for mass torts suits involving many people who claim to have been hurt by products in separate and diverse incidents.
Do All States and Countries Recognize Class Actions?
Most states recognize class actions, as does the federal court system. Even today, a number of states like Mississippi and Virginia do not allow class actions to be filed in their states. Internationally, very few countries permit class actions.
What Does it Mean to “Certify a Class Action?”
A court’s “certification of a class action” is the formal judicial decision that the lawsuit satisfies the requirements for, and will proceed to trial as, a class action. In certifying the most common type of class action – called a (b)(3) class in reference to a federal rule provision – the court determines that common issues predominate over individual questions, the class action is superior to individual lawsuits and the class action is manageable despite the number of claimants and issues.
How does a Class Action Proceed in Court?
Class actions generally follow the same course whether filed in state or federal court:
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Commencement: Class actions start like other lawsuits by the filing of a complaint. The complaint seeks certification of a class, outlines the factual and legal bases for the class action and defines the class for which certification is sought.
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Discovery: In most class actions, there is a period of “class action discovery.” Discovery involves the exchange of information about the lawsuit through written or oral questions, document production and experts. Typically, class action discovery is “bifurcated” so that the initial period of discovery is limited to whether the case should be “certified” as a class action. Discovery about the merits of the class action is delayed until after the court decides if a class action should be certified.
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Briefing and Decision: After class action discovery is completed, the parties’ legal positions are presented to the court in “briefs” and oral argument. Testimony is rarely taken during the class certification hearing. The briefs and argument address whether the requirements for class certification have been satisfied. Based upon the facts and law, the court grants or denies class certification. If certification is granted, the court also specifies the scope of the class and its members.
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Appellate Review: In the federal courts and increasingly in state courts, it is possible to obtain appellate review of a decision to certify a class even before the case proceeds to trial. This opportunity for appellate review is a recent development to prevent the potential abuse of class actions.
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Notice: If the court determines to certify the class action and no appeal is taken, the court in most instances requires that the class be notified of the class action certification. The court specifies the forms of notice that must be provided to the class and generally permits class members to “opt out” of the class action by a deadline set by the court. Depending on the size of the class, the court may require individual notice to each class member by mailing, publication in newspapers and magazines, television and radio broadcasts or internet postings. People who opt out are no longer class members and retain their right to bring an individual lawsuit. People who fail to opt out are class members and bound by the ultimate outcome of the class action case.
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Trial Plan and Trial: After notice is given to the class, the court determines how the class action will be tried by developing a “trial plan” with the input of the parties. Very few class actions have ever been actually tried. Most, because of the threat posed by the claims of a large class of people, are settled.
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Appeal: After a class action trial, the parties may appeal the final judgment. Typically, a bond is required as security for the recovery to prevent collection of the final judgment pending the appeal.
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