CLASS & MASS LITIGATION
INTRODUCTION
Class and mass action litigation are procedural tools and techniques used to resolve a large number of similar claims. There is no limit to the size of the claims that may be addressed by either type of litigation, but class actions in particular have been recognized as a valuable method of addressing claims that because of their relatively small value would otherwise be almost impossible to litigate economically on an individual basis.
CLASS ACTION LITIGATION
"The class action is one of the few legal remedies the small claimant has against those who command the status quo." - Justice William O. Douglas
Class action litigation allows one or more class representatives to represent the class, a defined group of people with similar claims. The greatest advantage of class action litigation is its ability to resolve the claims of the entire class by examining only the claims of the class representatives. This protects the non-class representative class members from discovery, significantly limits their involvement necessary to recover on their claims, and protects class members who are not aware of their claims. Another significant advantage of class litigation is that in many jurisdictions, the filing of a class action may protect the statute of limitations (the time period in which a claim must be filed or is lost) for the entire class. Not all claims are appropriate for class certification, however.
While there are several types of class actions, one of the most typical alleges that the issues common to all the class members "predominate" over any issues that may differ among them. The dispute by the defendant over whether or not the common issues truly do predominate over individual issues frequently becomes the focus of the fight to certify the class. Defendants often may not even dispute their liability to the class members, yet they try to insist that the claims be brought individually, knowing that to do so would be economically unfeasible for most claimants. In this typical scenario, the defendants believe, to their shameful discredit, that by defeating the certification of the class they will avoid facing their liability to the class members altogether.
Class action litigation is initiated by the filing of a class action complaint or petition naming one or more persons seeking to be appointed as class representatives to pursue the claims of the proposed class. The first stage of the case is discovery by both sides aimed at determining whether the case is appropriate for class action litigation. Usually, the class representatives will have to answer interrogatories, produce documents and be deposed during this time. Following this discovery period, the court holds a hearing, which often takes the form of a short trial to the judge, to determine whether the proposed class should be certified.
If the court does certify the proposed class, the defendant, in most jurisdictions, will try to appeal the class certification decision. This appeal is one of the serious drawbacks to class action litigation, as it will often take nine months to two years to resolve, during which the case typically cannot be prosecuted. After the successful class certification decision is final, the class is notified of the litigation and the parties prepare for trial. At trial, the class representatives present their claims and all the common issues are determined on behalf of the entire class. Where possible, any individual issues, such as an individual determination of damages, are also determined through the use of expert testimony.
Every case presents unique class certification issues. Where class action litigation is available it is a powerful tool for addressing a large number of similar claims. It does have drawbacks, however, including the potential for very high expenses and extended delay because of appellate review. Nonetheless, its advantages often make it the only economically viable avenue to pursue some claims.
MASS ACTION LITIGATION
Unlike class action litigation, in which the claims of a large number of persons are resolved with only the class representatives as named plaintiffs in a lawsuit, mass action litigation involves one or more lawsuits by a group of persons, all of whom are named as plaintiffs. Mass action litigation provides benefits of shared and reduced costs for commonly applicable discovery and experts and an exceptional knowledge of the claims by the lawyers and the courts. A significant disadvantage is that every plaintiff is subject to discovery. Another disadvantage is that the filing of mass action litigation does not protect the statute of limitations for persons who are not named as plaintiffs. But, in contrast to class action litigation, which may be very protracted, mass action litigation can often be resolved in a much shorter time period.
Both class and mass action litigation may be used in some cases. A weighing of the advantages and disadvantages of each is a significant decision at the outset of the case. Together, these two procedural methods provide a means to present claims that would often go without recourse if considered on an individual basis.
