Class Action

CLASS ACTION

A lawsuit that allows a large number of people with a common interest in a matter to sue or be sued as a group.

The class action suit began in the equity courts of seventeenth-century England as a bill of peace. English courts would allow a bill of peace to be heard if the number of litigants was so large that joining their claims in a lawsuit was not possible or practical; the members of the group possessed a joint interest in the question to be adjudicated; and the parties named in the suit could adequately represent the interests of persons who were absent from the action but whose rights would be affected by the outcome. If a court allowed a bill of peace to proceed, the judgment that resulted would bind all members of the group.

Justice joseph story, who served on the U.S. Supreme Court from 1811 to 1845, advocated the development of the bill of peace in the United States. He wrote that in equity courts, "all persons materially interested, either as plaintiffs or defendants in the subject matter of a bill ought to be made parties to the suit, however numerous they may be," so that the court could "make a complete decree between the parties [and] prevent future litigation by taking away the necessity of a multiplicity of suits" (West v. Randall, 29 F. Cas. 718, 2 [C.C.R.I. Mason] 181 [1820] [No. 17, 424]). The bill of peace, and later the class action, provided a convenient and efficient vehicle for resolving legal disputes affecting a number of parties with similar claims. Common issues that could have similar outcomes did not have to be tried piecemeal in separate actions, thus saving the courts and the litigants time and money.

Initially, a class action could be brought only in equity cases, disputes in which the parties did not necessarily seek monetary damages but instead might desire some other type of relief. The adoption of Rule 23 of the Federal Rules of Civil Procedure in 1938 broadened the scope of the class action suit, providing that cases in law seeking money damages as well as cases in equity could be brought as class actions. In 1966, the scope of the class action was again clarified and expanded when Rule 23 was amended to provide that unnamed parties to a class action were bound by the final judgment in the action so long as their interests were adequately represented.

Rule 23 of the Federal Rules of Civil Procedure defines three kinds of class actions. The first type may be brought where separate lawsuits might adversely affect other members of the class or the defendant in either of two ways—if the piecemeal litigation resulting from separate suits might impose inconsistent standards of conduct on the defendant, or if multiple suits might "impair or impede" the class members from protecting their various interests. In the second type of class action, a class seeks an injunction or some type of relief compelling the defendant either to cease a certain activity or to perform some other type of action. In the third category of class action lawsuit, there are questions of law or fact common to the entire class that predominate over questions peculiar to each individual plaintiff, and a class action suit is a more efficient means to resolve the controversy. Under the third type of class action, individual members of the class may "opt out" of the litigation if they do not want to be bound by the results of the suit. Courts have held that due process requires that absent class members be given adequate notice, adequate representation, and adequate opportunity to opt out, before they can be bound by a final judgment in the suit (Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 105 S. Ct. 2965, 86 L. Ed. 2d 628 [1985]).

Class action suits have led to social reform in the United States. They have helped to remedy discrimination based on race and gender; been used to address inequities in education, housing, and voting rights laws; and helped to ensure due process. For example, brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court decision striking down segregated schools, was brought as a class action lawsuit. The landmark decision Goldberg v. Kelly, 397 U.S. 254, 90 S. Ct. 1011, 25 L. Ed. 2d 287 (1970), in which the supreme court of the united states held that recipients of public assistance must be given notice and the opportunity for a hearing prior to termination of benefits, was also litigated as a class action suit.

Should Class Actions Be Restricted?

Class action lawsuits have become a controversial topic in the 1990s. Once seen as a way of empowering individuals with small claims to have their day in court, class actions are viewed by many lawyers, legislators, and government officials as a vehicle for plaintiffs' lawyers to make millions of dollars on issues of dubious merit. Other critics charge that class actions have been used by defendants in mass tort cases, such as asbestos litigation, to frustrate the large and legitimate claims of individual victims.

Defenders of class actions argue that this type of lawsuit has a legitimate social purpose. A lawyer who prosecutes a class action can be viewed as a "private attorney general" who aggressively enforces various regulatory laws or who alerts the public to fraud, health, and safety problems. In a time when government is seeking to reduce government regulation, class action lawsuits provide an opportunity for the private sector to take up the oversight function.

Defenders note that the class action format has most often been used to aggregate small claims that were not worth litigating separately. A class action is an effective means for holding defendants accountable for widespread harm that would otherwise go unchecked. There is public value in allowing this type of class action to go forward, even if the amount payable to each member of the class is small. The deterrent effect of a class action can be substantial, forcing the defendant to change its product or procedures.

Supporters of class actions contend that trivial cases are rare and that neither high settlement rates nor small individual recoveries demonstrate frivolous litigation. Moreover, criticism of multimillion-dollar attorney fees ignores the risk that class action attorneys take in starting such lawsuits. Not every class action will be successful and the costs of litigation can be substantial. Without a financial incentive, attorneys will not take on and plaintiffs will not find redress for certain types of injury. Defenders also point out that personal injury attorneys receive large portions of the awarded damages through contingent fee agreements. Class action attorneys should not be treated differently.

Defenders of large claim class actions believe that mass tort cases benefit from using a class action structure. When victims of mass torts seek substantial compensation for injuries caused by a defective product, such as asbestos, breast implants, and birth control devices, it makes sense to aggregate the claims. It is more economical for attorneys and the courts to manage hundreds or even thousands of similar claims as a group rather than on a case-by-case basis. The courts would be tied up for years if each case had to be handled individually, and the duplication of evidence and expert witnesses would generate needless expense. A class action, on the other hand, can resolve the central issues and develop rational compensation schedules for the victims. Settlement also becomes a more attractive option for defendants when the victims are members of a class.

Critics of class actions remain unconvinced about the social and legal value of group lawsuits. In small claims class actions, critics question the value of supporting litigation in which individual class members have very small stakes. For example, does it make sense to permit a lawyer to initiate a class action where a utility company overcharged two million customers two cents per month? Such filings demonstrate to the critics the lawyer-driven nature of most small claims class actions. The individual claimants, because they have so little at stake, do not exercise any control over the litigation or elect to opt out of the class and pursue individual claims. With the plaintiffs' lawyer in total control, the dynamics of the lawsuit change. The lawyer has the largest economic stake in the outcome, leading to settlements that guarantee high attorney fees and minimal payouts to the class members.

Critics also dispute the value of the private attorney general role. Most class action attorneys, they contend, are seeking lucrative financial awards rather than social justice. Moreover, class actions may interfere with the regulatory and oversight functions of the appropriate government agency. The agency may conclude that the injuries attributed to the defendant are insignificant and do not warrant prosecution. A class action substitutes the judgment of the private attorney for that of the public's elected officials.

As to the deterrence value of class actions, the critics maintain that state and federal law enforcement organizations have the ability to investigate and punish cases involving widespread small-scale fraud and offer an alternative means of addressing wrongful conduct. Private enforcement through a class action reduces the accountability of the law enforcement effort and delegates to the plaintiffs' attorney control over enforcement priorities.

As to large claim class actions, critics believe that the victims may not be fairly served. They contend that large claim cases raise concerns about the capacity of the class action format to provide individualized justice, the ability of class attorneys to effectively represent the various needs of class members, and the impact on future class members who do not, at the time of litigation, have a ripe claim (their injury is not yet apparent).

Critics argue that in these large claim cases, defendants have sought class action status as a way of limiting liability. In some cases, the parties propose a settlement before a complaint has ever been filed, suggesting the possibility of collusion between the attorneys for the two sides. Finally, defendants in mass tort class actions have an incentive to search for and negotiate with the plaintiffs' attorney for the lowest settlement amount.

Critics of class actions propose that legislation and court rules be changed to give more power to the courts to examine class action applications. Courts should carefully review the applications and deny class status to small claims cases with little social value in the adjudicating the claims. Another alternative is to sharply reduce attorney fees, which would reduce the incentive for frivolous actions.

further readings

Conte, Alba, and Herbert B. Newberg. 2002. Newberg on Class Actions. 4th ed. St. Paul, Minn.: Thomson/West.

Coyle, Marcia. 2003. "Bill Targets Class Action Lawyer Fees: Sparked by Ire Over Tobacco Money. The National Law Journal 25 (May 19): 1.

Feldman, Joel S., and Keith M. Fleischman. 2002. Non-Federal Question Class Actions 2002: Prosecution & Defense Strategies. New York: Practicing Law Institute.

Schwartz, Robert Alexander. 2003. "Can Arbitration Do More for Consumers? The TILA Class Action Reconsidered." New York University Law Review 78 (May): 809–44.

In addition, the class action suit has been used in several widely publicized mass tort cases. In these actions, many plaintiffs, often hundreds or even thousands, have alleged injuries suffered as the result of the actions of a single defendant, usually the manufacturer of some product believed to have caused damage. In the mid-1970s, thousands of women brought suit against the manufacturer of the Dalkon Shield, an intrauterine contraceptive device linked to numerous health problems, including sterility. A class action suit was also employed in lawsuits against the manufacturer of the herbicide Agent Orange, a highly toxic defoliant that was used during the vietnam war and has been linked to cancer and birth defects in Vietnam era veterans and their families. In mid-1995, two major class action suits on behalf of millions of smokers were instituted against several tobacco companies. The plaintiffs hoped to prove that they had become addicted to nicotine and suffered illnesses as a result, and that the defendant tobacco companies concealed their knowledge of the addictive nature of nicotine and the harmful effects of smoking.

Some large companies, anticipating liability for potentially huge damages as a result of class action suits, file for bankruptcy in order to protect their assets. The pharmaceutical company A. H. Robins, the manufacturer of the Dalkon Shield, filed for bankruptcy in 1985 when it was faced with the prospect of paying millions of dollars as a result of class action suits filed against it. In 1995, Dow Corning Corporation, the subject of hundreds of claims resulting from allegedly defective silicone gel breast implants, filed for Chapter 11 bankruptcy protection. Other companies, fearing the financial consequences of possible class action suits arising from certain types of products, have ceased research and development in certain areas altogether. The Upjohn Company, for instance, ceased contraceptive research in 1986.

The Supreme Court addressed concerns about the use of Rule 23 in mass tort actions in Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). This case involved persons who had been exposed to asbestos and who either had diseases attributed to this exposure or who had the potential of developing these diseases. The federal courts became worried that they would be inundated by thousands of individual cases. Therefore, in 1991 all asbestos cases that had been filed but not tried were consolidated and transferred to a single judge in Pennsylvania.

During settlement discussions the defendants refused to negotiate unless the final agreement bound victims who would file claims in the future. The plaintiffs eventually agreed and the parties came to a settlement. They then went into court and obtained a certification of class action. However, objections were raised by many class members and the Supreme Court was required to make a final determination.

The Supreme Court ruled the class action was improper. The Court was troubled by attorneys of current victims, who stood to receive payment from the defendants, binding future victims to a settlement that greatly restricted their ability to receive compensation. Rule 23 requires class representatives to protect the interests of all class members, yet it seemed unlikely that future victims were fully protected. Another concern was that the proposed class did not have sufficient unity so that the future claimants could "fairly be bound by class representatives' decisions. "The current plaintiffs, who had asbestos injuries and wanted immediate compensation, had agreed to terms that future claimants might find unacceptable. These included the lack of inflation adjustment, the limitation on the number of payable claims each year, and the prohibitions against asking for damages based on emotional distress and loss of consortium.

The Court found that the proposed class was not "sufficiently cohesive." Although all members of the class shared experience of asbestos exposure, this did not meet the predominance requirement under Rule 23 (b)(3). In fact, there were many individual issues and many categories of persons who were exposed and injured or exposed but not yet injured. The supposed class was too "sprawling" to meet the Rule 23 requirement.

In 2002, the Supreme Court reviewed the rights of persons who seek to intervene in a class action settlement for the purpose of objecting to the settlement. In Devlin v. Scardelletti, 536 U.S. 1, 122 S.Ct. 2005, 153 L.Ed.2d 27 (2002), the Court held that persons affected by a settlement may appeal even if they are not a class representative or a court-approved intervener. The decision is likely to increase such appeals.

further readings

Hensler, Deborah, Nicholas M. Pace, Bonita Dombey-Moore, Beth Giddens, et al. 2000. Class Action Dilemmas: Pursuing Public Goals for Private Gain. Santa Monica, Calif.: Rand.

Olson, Walter K. 2003. The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law. New York: St. Martin's Press.

Viscusi, Kip W., ed. 2002. Regulation Through Litigation. Washington, D.C.: Brookings Institution.

cross-references

Civil Procedure; Product Liability.