Unlike "class actions",
in which the plaintiff seeks court approval to litigate on behalf of a group of
identically situated persons, mass
tort actions involve similarly situated
people whose claims are brought in one "mass tort " complaint
seeking the efficiencies and economic leverage that class action's provide.
What Are Class Actions
A class action is a civil
lawsuit brought by one person on behalf of a larger group of people who have
suffered a similar harm or have a similar claim. Class actions can be brought in federal or
state courts and are used when too many people have been affected by the
subject of the claim for each to file separate lawsuits frequently involving
injuries resulting from hazardous products and drugs like tobacco, asbestos,
Agent Orange, breast implants, and contraceptives.
Class actions are also used
in securities (e.g., fraudulent
financial statements or releasing false information about stocks and other
forms of market manipulation) and employment (e.g., wage/hour laws violations and mass dismissals) cases or to
stop illegal or harmful practices like oil spills, manufacturing pollution, or Constitutional
protection violations.
Mechanics of Class Action Proceedings
A lawsuit becomes a class
action when a plaintiff, called the "Lead Plaintiff", files a lawsuit
claiming that a harm has been suffered and requesting that the case be
certified as a class action.
To have the case certified,
the Lead Plaintiff must demonstrate that:
• a legal claim exists against
the defendant(s);
• a significantly large group
of people have been injured in a similar way and their respective claims involve
similar issues of fact and law as that of the Lead Plaintiff; and
•the Lead Plaintiff is
typical of the class members, has a reasonable plan and ability to adequately
represent the class, and has no conflict with other class members.
If certified as a class
action, the court will order that the class of affected people be notified
including through direct mailings. Class
membership is usually automatic and, unless they choose to "opt out",
everyone affected by the wrongdoing will be part of the case.
Unless they have evidence to
offer, class members generally are not involved in the case nor the settlement negotiations.
Instead, the Lead Plaintiff consults
with the class action attorneys to develop the case's strategy (including and accepting
settlement offers) and other class members only may choose to accept or opt out
of the settlement.
Because few class actions
proceed to trial, and often settle following class certification, a large
portion of the proceeding involves forging a settlement.
The court decides how to
divide any recovery and the attorneys are given costs and fees, often
calculated as a percentage of the entire recovery. The Lead Plaintiff receives an amount partly
determined by his participation, and the rest of the recovery is then divided
among the class members.
Mass Tort Actions
Unlike "class actions",
in which the plaintiff seeks court approval to litigate on behalf of a group of
identically situated persons, many disputes involve similarly situated people whose
claims are brought in one "mass action" complaint seeking the same
efficiencies and economic leverage as if a class had been certified.
Because they operate outside class
action's detailed procedures, mass torts actions can pose special difficulties.
For example, unlike a class action settlement,
which follows a predictable path of negotiation with class counsel and
representatives, court scrutiny, and notice, a uniform method for settling all mass
tort claims may not exist.
Some states permit
plaintiff's counsel to settle all mass tort plaintiffs claims according to a
majority vote while others require each plaintiff to approve the settlement of
that plaintiff's respective claims.
