Class Actions

A class action is a procedural mechanism by which one or more plaintiffs can prosecute a lawsuit on behalf of a large group of people so long as those people are similarly situated in the eyes of the law. Class actions can be filed in either state or federal court. In federal court, class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Class certification is when a judge decides whether or not it is appropriate for a proposed class action to actually proceed as a class action case. To certify class, both Rule 23(a) and (b) must be satisfied.

Rule 23(a) has four elements, each of which must be satisfied to certify a class:

1. A class so numerous that joinder is impractical; otherwise known as “numerosity”;

2. Common questions of fact or law; otherwise known as “commonality”;

3. The plaintiffs must be typical of the group of people they seek to represent; otherwise known as “typicality”; and

4. That the representatives will fairly and adequately protect the interests of the class; otherwise known as “adequacy.”

Rule 23(b) has three components, only one of which needs to be satisfied to certify a class in addition to elements of Rule 23(a).

1. Separate adjudications will create a risk of decisions that are inconsistent with or dispositive of other class members’ claims;

2. Declaratory or injunctive relief is appropriate based on the defendant’s acts with respect to the class generally, or

3. Common questions predominate and a class action is superior to individual actions.

Class actions in California state court are governed by Code of Civil Procedure § 382 and have similar requirements to Federal Rule 23.

Like most legal questions, the answer is “it depends.” If a case concerns only state law claims and impacts only citizens of that state, it will likely be in state court. If, on the other hand, the case concerns citizens of several different states, federal law is at issue, and/or the case is of a sufficient size both in terms of number of class members and amount of money at stake, it may end up in federal court.

In 2005, Congress passed the Class Action Fairness Act (“CAFA”) making it easier for cases to end up in federal court. CAFA allows for jurisdiction in federal court “where the aggregate number of members of all proposed plaintiff classes is 100 or more persons” and “if: (1) the aggregate amount in controversy exceeds $5,000,000, and (2) any class member is a citizen of a state different from any defendant.” Serrano v. 180 Connect, Inc. (9th Cir. 2007) 478 F.3d 1018, 1020-1021.

Whether a case is filed (or remains) in state or federal court is dependent on the law and the strategic advantages each side believes it may have in those forums. Our experienced class action attorneys have litigated class actions to resolution in both federal and state court and can help you understand which forum is best for your particular case.

This many types [extends arms out to indicate a lot]. While the federal rules divide class actions into three types based on Rule 23(b) (see above description of that rule), class actions can take almost as many forms as individual litigation can. The difference is the wrong or set of wrongs being complained of must impact a large group of people (generally at least 40) in such a way that it is preferable for all their individual claims to be brought together rather than separately. Our firm specializes in employment class actions, privacy class actions, artist class actions, and consumer protection class actions. These broad categories contain multiple subsets of types of class action cases. If you believe you have a claim in those areas of the law which may be subject to class treatment, you can contact our experienced class action litigation attorneys for help.

Yes you can. If you have an opportunity to opt out of a class action and you choose not to, you’re then bound by the judgment or settlement that results assuming you were a member of the class. If you choose to opt out, then you will not be bound but you also will not collect any compensation as part of that judgment or settlement. If a Defendant successfully has a class action dismissed or rejected by the court, this will not bind you personally if you were not a named plaintiff in the lawsuit.

Again, it depends. Some class actions are “opt-in” and some are “opt-out.” If a class action is “opt-in” you have to affirmatively assent to becoming part of the class or else you’re not part of it and you won’t take anything from the lawsuit even though you might otherwise qualify for a payment. If a class action is “opt-out”—which is more common—you don’t have to do anything to be part of a class action if you qualify as a class member under the terms of a settlement or judgment. Whether a class action is opt-in or opt-out depends on the nature of the legal claim presented.

That depends on the type of claim you have and the value of your claim. If you have a claim that arises from a potential defendant’s wrongful conduct that impacts a large group of people in a similar way that it impact you, then a class action may be your best way to ensure that defendant is brought to justice and you get fairly compensated. If, on the other hand, you have a claim that only impacted you or you and a small number of others, then bringing your own case may be your best recourse.

One benefit of bringing a claim as a class action is that claims that may otherwise not be valuable enough for an attorney to take when multiplied by the number of class members become valuable enough for an attorney to take on. By spreading the legal costs across hundreds or thousands of putative class members, it makes pursing what would otherwise be a relatively low-value economic claim economically viable for class members and their representatives.

Another benefit of filing a case as a class action is strength in numbers. When large corporate defendants see that their actions have impacted hundreds, thousands, or even millions of their employees, consumers, shareholders, or other impacted individuals they may see the error of their ways and attempt to compensate those impacted. On the other hand, if only a small number of people complain or seek compensation, the bad actors lack the economic incentive to obey the law.

Generally (and in our practice), class action lawsuits are prosecuted on a contingency basis, meaning that the lawyer is paid as a percentage of the amount awarded to the class. That is the plaintiffs and class members pay nothing unless they received compensation as a result of the lawsuit and in that case, the attorney’s fees come out as a percentage of that recovery. This is generally what happens if a class action settles—a Judge will have to approve the percentage of the settlement allocated to the attorney.

In certain circumstances, attorneys are entitled to the payment of their fees by defendant if the class prevails on certain claims. That is, if the class action case were litigated to judgment, by prevailing at trial for instance, the defendant may have to pay the attorney’s fees.

In any case, class action plaintiffs generally are not responsible for paying any legal fees up front and that is how our class action attorneys operate.

Some employers or consumer facing companies require their employees or consumers to sign (or otherwise assent to via electronic means) form arbitration agreements which prohibit filing a class action lawsuit. As a general matter, such agreements may be enforced and prohibit injured workers or consumers from joining together to vindicate their rights in court. However, the enforceability of such an agreement is dependent on a number of factors so the mere fact that you believe you may have signed such a document does not necessarily eliminate your option of filing a class action lawsuit. Our attorneys have successfully challenged mandatory arbitration provisions in both the employment and consumer context. If you believe you have a potential class action claim and think you may have signed an arbitration agreement waiving your rights to file a class action lawsuit, you should contact qualified class action counsel like the attorneys at Phillips, Erlewine, Given & Carlin LLP.

Unlike filing your own individual lawsuit, class action representatives owe a duty to the class to do what is best for all of them. A class representative:

1. represents the interests of all members of his or her class in litigation;

2. has claims which are typical of those of the class, and thus involve common issues of law or of fact. As a class representative, your claims against the defendants are typical of the class claims against them;

3. always considers the interests of the class just as he or she would consider her own interests;

4. participates actively in the lawsuit, such as by testifying at deposition and trial, answering written interrogatories, and by keeping generally aware of the status and progress of the lawsuit;

5. recognizes and accepts that any resolution of a class action lawsuit, such as by settlement or dismissal, is subject to court approval, and must be designed in the best interests of the class as a whole;

6. will not settle their individual claims without including the class;

7. accepts the possibility that, in the event the case is lost, the court may assess a portion of certain of defendants' costs of litigation against the class representatives;

8. should be interested, on a continuous basis, in the progress of the lawsuit, and must make every effort to provide her lawyers and the court with all relevant facts of which she is aware; and

9. volunteers to represent many other people with similar claims and damages, because he or she believes that it is important that all benefit from the lawsuit equally, because he or she believes that a class lawsuit will save time, money, and effort, and thus will benefit all parties, and the court, and because he or she believes that the class action is an important tool to assure compliance with the law.

California’s Private Attorney General Act is a statutory law in California which allows for workers impacted by an employer’s labor code violation (like a failure to properly pay employees or provide breaks for instance), in the words of the statute an “aggrieved employee,” to file a lawsuit on behalf of the State of California and all other aggrieved employees who worked for that employer within the statutory period for civil penalties. Importantly, the penalties recoverable in a PAGA case go 75% to the state and 25% to the aggrieved employees. PAGA also provides for attorney’s fees to be paid by the employer if the employee prevails.

While PAGA lawsuits are not class action lawsuits—they are subject to different procedural requirements and do not require a Court to certify a class—they share some similarities in that a PAGA representative plaintiff is representing the interests of not just themselves, but of a group of otherwise unrepresented individuals (in a PAGA case, fellow employees).

If you or someone you know believes they have not been paid all you are owed, paid in a timely manner, or provided meal and rest breaks by your employer, please contact our experienced employment class action and PAGA action attorneys to learn more about your rights.