Before filing a case on behalf of multiple people who have been
injured, either physically or monetarily, an initial decision must be made of
whether to bring each person’s claims individually, or as a group. If you
believe bringing the claims as a group would be more beneficial for purposes of
economy of scale, greater bargaining power collectively, and efficiency, the
next issue that needs to be decided is whether to pursue the case as a class
action or a mass action. These two types of procedural mechanisms for bringing
a group of claims together are appropriate under different circumstances, and
each have their own pros and cons.
Sometimes the decision of which type of action to pursue is easy,
while other times there is some strategy and weighing of options involved, as
well as legal considerations of whether the proposed class meets the criteria
for certification. Here are some considerations to keep in mind when making
this decision with your clients:
How Many Plaintiffs Can Be
Practically Joined And Can They Represent Others Or Just Themselves?
One of the most obvious differences between a class and mass
action are the number of plaintiffs named in the lawsuit. Class actions have
only one or a few named plaintiffs, who act as representatives of the entire
class, because, as Trial Rule 23 says, the class is so large joinder of all the
members would be impracticable. That means technically there are only a few
named parties to the lawsuit, and those class members not listed as class
representatives have very limited input and responsibilities with regard to the
lawsuit.
Those absent class members normally don’t have to answer
discovery, go to depositions or court hearings, and don’t have to prove their
claims individually (at least not their liability claims). Instead, although
there are some chances along the way for them to opt out or contest any
settlement, for example, even class
counsel only has to communicate with class members during certain limited times
during the lawsuit. The other side of the coin of this representation, however,
is that if the class is certified the results of the lawsuit are res judicata for all class members --
whether named or not. That is why to get certified as a class the court must
determine that the class is adequately represented by both the class
representatives and the attorneys for the class.
On the other hand, mass actions typically have many allegedly
injured parties too, but instead of choosing one or two people to represent
everyone, each person is individually listed as a plaintiff in the lawsuit.
Since the Class Action Fairness Act (CAFA) was signed into law in 2005,
whenever such a mass action lists over 100 plaintiffs though, it is typically
deemed to be a class action removable to federal court by defendants. 28 U.S.C.
1332(d)(11). Further, when many lawsuits, even across districts, deal with the
same issues they are often brought together with federal multi district
litigation, governed by the procedural rules found at 28 U.S.C. 1407 and 2112.
Unlike with class actions, each plaintiff in a mass action has
responsibilities for doing all the activities that any regular plaintiff must
do, like discovery, etc. Further, although there are some procedural mechanisms
that can be put in place to try to prove some elements of the case across the
board for all claimants, at the end of the day each person’s case ultimately is
decided individually.
How Similar Are The Plaintiffs
Claims In Regard To Both Commonality And Typicality?
The other major difference between a class action and mass action
is whether the claims are similar enough, either factually and/or legally, to
be able to prosecute them as a whole. Class actions can only be brought if they
meet all the requirements of Federal Rule of Civil Procedure 23 (or a similar
state rule, such as Indiana Rule of Trial Procedure 23), whereas mass actions
are a default when all such requirements cannot be met.
There are many procedural rules set in place for determining when
a class action is appropriate, but ultimately the idea behind each of them is
to make sure that the person who is the class representative can adequately
represent the interests of his or her fellow class members. This was touched
upon above, but it also is important for the other two major requirements for a
class to be certified -- commonality and typicality. The idea is that a class
representative could not adequately represent another absent person if they do
not pose questions of law and fact common to the class, and if the named
parties claims or defenses are not typical of the class.
Mass Torts Sometimes Are
Not The Right Fit For Class Actions
A common example of claims that are sometimes not appropriate as
class actions are mass torts, where multiple people are injured such as in a
large accident. Mass torts can include such things as injuries from
pharmaceutical drugs, large scale accidents and even products liability claims.
In fact, the comment to FRCP 23(b)(3) explicitly cautions against the use of
the class action device in mass tort cases. The reasons for this include that
these cases involve personal injuries and sometimes even death, meaning that
each claim is not easily described as “typical,” because there is a need for
individual evidence of exposure, injury and damages for each plaintiff, not
just class representatives.
Here in Indiana we are unfortunately too familiar right now with
such a large accident, the stage collapse at the Sugarland concert at the
Indiana State Fair. In that case the victims have brought a mass action, not a
class action, against various defendants alleging fault for the accident. It
would not have been appropriate to try to bring a class action because there
was no commonality regarding the injuries, and therefore each plaintiff’s case
ultimately must be decided on its own. On the other hand, the State Fair stage
collapse case is perfect for a mass action as the liability claims (what caused
the stage to collapse and who is responsible) will require the same proof for
all the injured parties.
There are both factual and legal differences between individual
claims in mass actions. These differences make it impossible to fulfill the
elements of typicality and adequacy which are required for Rule 23(a). Further,
these same differences make it difficult to demonstrate that the putative class
has the requisite “cohesiveness” which is required in Rule 23(b)(2) and makes
it difficult to demonstrate that the putative class as common issues which
“predominate” which is required for Rule 23(b) claims.
Another reason not mentioned in procedural rules themselves, but
which often is an important factor in why class actions do not practically work
for mass torts is that when someone suffers a personal injury they and the
courts have major concerns about autonomy, and being properly represented as a
class member. Each plaintiff has significant interest in individually
controlling the prosecution of separate actions, and a substantial stake in
making individual decisions on whether and when to settle. This came into stark
focus when, for example, in the nationwide asbestos settlement classes proposed
in Amchem Products, Inc. v. Windsor,
521 U.S. 591 (1997) and Ortiz v. Fibreboard Corp., 527 U.S. 815
(1999) the individual absent class members had concerns so great about the
proposed class action settlements that they pursued their objections all the
way to the United States Supreme Court on multiple occasions.
While there are many legal and practical differences between
class actions and mass actions, they often have the same general goal in mind
-- get relief for the injured parties as quickly, efficiently, and in as
cost-effective manner as possible. Certain factual situations lend themselves
better than others to one procedural mechanism or the other, so the first step
is to examine the facts of the case and decide which has a better chance of
achieving the goals of your clients before going forward.
If you believe that you have a class or mass action case, please contact Mario Massillamany at Starr Austen & Miller at 574-722-6676.
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