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What Would Happen To Me if I File a Consumer Class Action?

What is a class action? A class action is a lawsuit brought in the names of a few people on behalf of many people who have sustained similar harm or losses claimed to have been caused by misconduct by the defendant who is sued in the case.

What is a class representative? A person in whose name a class action is filed is called a class representative, and that is what you are. The heading, also called the caption, of all court documents in the case lists your name, and says you are suing “individually and on behalf of everyone similarly situated.” This means you are working for all other people with the same problem you have with regard to the subject matter of the lawsuit. It is an important responsibility, because the outcome of your claim affects all the other plaintiffs.

Class certification. When a lawsuit is filed as a class action, it does not actually become one until and unless the presiding judge certifies it as one. The activity in the case leading up to the judge’s decision as to whether to certify is called the class certification process. A lawsuit must pass five tests to be certified as a class action, and these tests are:

  • Numerosity. This means the number of people with claims is large enough to make it impractical to name them all as individual plaintiffs. There is no specific number for this, but usually it takes 50 or more.
  • Commonality. This usually means that all the people are basing their claims on the same alleged misconduct by the defendant, and that they all sustained the same type of harm, although the degree of harm can vary. It always means that there is a legal issue, a factual issue or both that is common to everyone in the class.
  • Typicality. This means your claim is typical of those of all the class members, in the sense that you are all asking for the same kind of damages, from the same defendant, based on the same alleged misconduct by the defendant.
  • Adequacy. This has two parts.
  • Class representative’s adequacy. You must know your responsibilities as a class representative and be willing and able to perform them and not have a conflict of interest with other class members. Your responsibilities are discussed in the next section.

Class attorneys’ adequacy. Your lawyers, who are also lawyers for everyone in the class, must have the experience and resources needed to handle the case, and they must be willing and able to adequately represent the class without a conflict of interest.

  • Predominance. This means that issues common to the class members are more important their individual issues.

Responsibilities of a class representative.

  • Understand the case. The most important thing is that you have to understand the case. You will probably be called upon to make decisions that affect the claims of the other class members, and nobody wants to be bound by uninformed decisions. You need to have a basic understanding of your claim and the claims of the class members. It is your lawyers’ job to give you the information you need to make intelligent decisions, and it is your job to ask the lawyers questions if you don’t understand what’s going on.
  • Know your lawyers. You entered into a contract with lawyers to represent you and the class in the case. Your lawyers have an obligation to inform you promptly as to important developments in the case, and you have an obligation to the class to watch what your lawyers are doing.
  • Be fair to the class. Your decisions need to be fair to the class. If you were bringing this case alone, you would only need to make the decisions for yourself, but in a class action, you must make decisions that are fair to everyone in the class. Just like a good parent makes decisions that are good for the whole family, you need to think of the class when you make decisions. This includes deciding whether to accept a settlement offer if one is made. If the defendants make an offer to settle your claim alone, you need to think about your responsibilities to the class.
  • Depositions in general. A deposition is where the lawyers in a case – any case, not just in a class action – get to ask questions before trial of a person who might be a witness at trial. These are oral questions and answers, recorded by a court reporter, and the answers are given under oath. Depositions are usually done at a lawyer’s office, and lawyers from both sides are present. Depositions have four general purposes: (1) to find out what the person has to say, (2) to size up the witness’ credibility, (3) to discredit the person’s testimony if possible and (4) to have a record of what was said at the time of the deposition in case the person testifies differently at trial.
  • Your deposition. You should expect to have your deposition taken in the case. The deposition itself will probably take between two and six hours, and there will be additional time needed to get to and from the site agreed upon for it. Your lawyers will make any necessary travel arrangements for you, and they will do what they can to minimize your inconvenience. Your lawyers will also meet with you in advance of your deposition to prepare you for it, and at least one of your lawyers will be present at the deposition to protect your interests.

Pros and cons of being a class representative. Some of the pros and cons of serving as a class representative are listed below.

  • Pros
    • This is an opportunity to help a lot of people whose claims might not be big enough to justify individual lawsuits by joining them with your claim so that you all have a fair chance of getting even.
    • Class actions serve the public interest by holding a defendant accountable for misconduct that caused a relatively small amount of harm to a lot of people.

If the case is successful, the judge might give you an incentive award, which is money above and beyond your damage claim, to reward you for the time spent, and the responsibility you took on, in representing the class members. There is no guarantee, but it’s something to think about.

  • Cons
    • You have to do more work than the people in the class who are not class representatives, because you are working for everyone.
    • Your decision-making authority is more limited than it would be if the case were just for you. Any major decision you make, including whether to settle or not, and if so for how much, is not final, because it is subject to being approved or disapproved by the court.

Clark, Perdue & List

Please contact us if you have further questions or would like more information about consumer class actions.


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