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Class Action Basics: What You Need To Know To Protect And Preserve Your RightsKyle A. Shamberg

I often receive phone calls from people who have read or heard about a class action our firm is pursuing and are curious about whether the case applies to them and what they need to do to get involved. I find that while most of these people – usually consumers who have purchased a defective or falsely advertised product, or have had their personal information compromised in a data breach – are familiar with the concept of what a class action lawsuit is (Erin Brokovich anyone?) they have a number of questions about how they actually work. Am I member of the class? Do I need to provide documents or other evidence? How can I recover if there’s a settlement or judgment in the case? For those of you who have these same questions, here’s a brief crash course in class actions that can help you understand the basics.

What is a class action?

Every civil lawsuit has a plaintiff (the person claiming they were wronged) and a defendant (who is claimed to have wronged them). Many times there are multiple plaintiffs or defendants in a single suit. But what if there are so many plaintiffs that bringing them all into the same lawsuit as plaintiffs becomes impractical or even impossible?

Or take another example. Let’s say a company sells a defective product to 1,000,000 consumers, and the product breaks down in the same way for all of them. There are two alternatives if these consumers want to litigate: either have them bring 1,000,000 individual lawsuits – also an impractical idea that would create a tremendous burden on the court system – or allow them to join together in a class action, with a few select plaintiffs representing the interests of the other consumers who have experienced the same problem.

This is how a class action works. One or more plaintiffs, known as “class representatives,” bring a lawsuit alleging harm not only for themselves but on behalf of all the other individuals who have suffered the same harm, known as “class members.” This prevents a multiplicity of lawsuits for the same activity and avoids having to name hundreds, thousands, or even millions of plaintiffs in the suit.

What is the difference between a class representative and a class member?

A class representative is, for the most part, just like any other plaintiff in any other lawsuit. The representative is named in the suit and is involved in its day-to-day prosecution. Generally, this involves reviewing and approving filings with the Court (pleadings, motions, etc.), providing evidence by answering written questions and responding to requests for documents, giving testimony at a deposition and/or trial, and approving any proposed settlement on behalf of the class.

The difference is that a class representative is not just looking out for his or her own interest but for the interests of all of the class members who are not directly involved in the case. Because class members are not typically testifying or offering evidence, the class representative is tasked with being their voice and getting the best result for the class as a whole. For this reason, while the court may grant a small incentive fee to the class representative as compensation for the time he or she has invested in the lawsuit, in the case of a settlement the class representative may not agree to terms that are any more or less favorable than the terms that apply to all of the other members of the class.

The class representative must, of course, also be a class member. But while class members’ roles are usually (but not always, see below) limited to awaiting a resolution of the lawsuit to find out what, if any, relief they will receive, the class representative must remain diligent in ensuring that the members get the best relief possible as quickly as possible.

How do I know if I’m a class member?

When a class action lawsuit is filed, the document that initiates the suit, the complaint, will include a definition of the class (for example: “all residents of the United States who purchased product X from January 1, 2013 to the present”). A well-crafted class definition will make it very clear whether or not someone is a member of the class. While it is important to note that the class definition may change during the course of a lawsuit in response to certain legal rulings or newly discovered facts, at any given point in time an individual’s membership in the class can be determined from objective criteria. If it cannot, the court will require that the definition be amended to make the question of membership more clear. Nevertheless, the best way to know for sure if you are a class member is to speak to one of the attorneys handling the case.

Do I need to pay anything to be involved in the suit?


Absolutely not. Though I can only speak for our firm, neither class representatives nor class members ever have to pay any legal fees or other out-of-pocket costs to pursue their claims or be entitled to relief. Frankly, if you speak to a class action attorney who does require this sort of payment, you should probably look elsewhere.

So if I’m a class member am I just playing the waiting game?

In a sense, yes, but there are a number of things you can do to help the suit and preserve your right to recover in the case of a judgment or settlement. The most important thing is not to get rid of anything that could be relevant. What is relevant, of course, depends on the particular case. But any receipts, records, communications with the defendant, bills, etc. that relate to the problem the lawsuit is trying to correct may become critical to your right to recover. In the event of a settlement, there will be a process through which class members can submit claims for compensation, and oftentimes this process will require some documentation of an individual’s membership in the class (the most obvious example being a receipt or proof of purchase in a product case). You may also be asked by the attorneys to provide this evidence in order to strengthen the case while it is ongoing. Hold on to everything!

If there is a settlement, you will likely receive notice via the process described above. In most cases notice will come through the mail (or possibly email). Other times, however, is may not be as simple to identify the individual class members. In these instances, notice might be accomplished through advertisements in newspapers, magazines, on the internet, or even in the subway. The best way, then, to make sure you receive notice is to contact the attorneys handling the case and give them your contact information. In fact, identifying yourself as a class member will not only help make sure you are aware of any settlement but may help the case itself by revealing that there’s yet one more person who has been harmed by the defendant’s conduct. Who knows, you may even decide you want to serve as a class representative to help protect people just like yourself!

How can I learn more?

This is most certainly not an exhaustive list, and you should always consult with an attorney to make sure you fully understand your legal rights. If you have further questions about how class actions work, don’t hesitate to contact us.