Class Action Characteristics and Procedure

Almost any issue can form the basis for a class action lawsuit. Product liability, personal injury, employment discrimination, disasters, and environmental pollution all have been subjects of class action litigation.

Initiation of a Class Action

The decision to pursue a class action, rather than an individual case, originates in different ways. An individual may initiate litigation, then learn that others are similarly situated, and so seek to have the issues determined on behalf of the entire class. Other class action suits are commenced by plaintiffs' attorneys, who attempt to solicit members to participate in litigation after a disaster, for example. In the event of a fatal plane crash, an attorney may contact the family of one victim and persuade a family member to serve as a representative of all victims' families in a class action suit against the airline. The Supreme Court has held, however, that this type of solicitation is unethical if the case is pursued for the attorney's personal gain. Solicitation is allowed, however, if the attorney can show that the litigation takes the form of political expression. For example, an attorney could solicit members of a particular ethnic group who allegedly suffered discrimination by the same defendant.

Class Certification

Once the decision is made to pursue a class action, the named representative files a motion to have the court certify the class. The party seeking the class designation has the burden of showing that the prerequisites for certification are met. The request for certification itself often generates tremendous opposition by defendants. Generally, the decision to certify cannot be appealed, although there are some cases in Texas that have suggested that an order denying the motion for certification may be appealed. Once the class is certified, the defendant usually has little choice but to proceed in defending the case. Also, the certification of the class carries tremendous importance in pre-trial settlement negotiations because a certified plaintiff class will have greater leverage in negotiating with a defendant than each individual would have alone. Many business defendants do not want the adverse publicity often attached to being the subject of a class action lawsuit. Thus, most defendants vigorously oppose class certification. This is especially true if the defense feels it may lose the case once the court examines the ultimate issues subject to controversy. There are times, however, when a defendant may wish to encourage certification of the class. If, for example, the defense felt it would prevail on the merits of the case, it would seek to have the class defined as broadly as possible so the judgment in its favor would be binding on a maximum number of potential plaintiffs.

Because the law provides that a class representative may sue or be sued on behalf of a group, class actions may involve a plaintiff class, a defendant class, or both. In most plaintiff class actions, the group seeks certification in order to recover money damages for injuries or to obtain some other relief on behalf of the class members, such as halting pollution or discrimination practices. In defendant class actions, the plaintiff seeks to impose liability on the named defendant as well as on absent defendant members of the class. For example, tenants may sue a named landlord to seek relief from a practice of all similarly situated landlords. These cases are rare, and courts typically are stricter in applying the prerequisites for certification in cases involving defendant classes. Courts pay particular attention to whether the named defendant representative can adequately represent the interests of the absent defendant class members. Requests for defendant class certification are granted infrequently.