Class Actions: How Do You Find Them?
So you’ve seen the articles of mutli-million dollar class action settlements. You take a look at the stack of personal injury files on your floor and, in your mind, you quickly estimate the $13,000 of attorneys’ fees that they *might* generate. You glance back at the article and think “how do i get me one of those???”
There are a couple of ways. But first ask yourself, “do I really want to ‘find’ a class action?”
- A Good Class Action Is A Very Rare Thing
Any suit can be filed as a “class action.” But an alleged class and a certified class are two very, very different things. Class actions are notoriously difficult to certify, much less win. The four-pronged test of “commonality/typicality/ numerosity/adequacy” provides a seasoned defense lawyer with a plethora of opportunities for leaving you with an individual claim.
So what’s the key to finding a good class action? In two words: case selection. Plaintiff’s attorneys know how rare it is to have any single case without any problems of proof or damages. If a client brings to you a case that looks quite good but may have one or two “problems,” it’s highly likely that case will never be certified as a class action. “Problems” are generally case-specific, and case-specific problems create questions of individuality. Individuality defeats commonality, which in turn defeats class certification.
So you really need to find a nearly perfect case in order for it to be susceptible of class certification.
2. Personal Injury Damages Are Almost Never Classable
Remember that stack of personal injury files on your floor? It’s highly unlikely you’ll ever find a class action in there. Cases in which your client has suffered physical or emotional injury are almost never classable because, again, they involve an individual question specific to your client’s case. This is so even in a catastrophic incident like a building collapse or a train derailment. Each victim of the same wrong has wildly varying injuries and damages–damages that are not provable in a single trial without the single trial breaking down into a series of mini-trials.
Now, there may be other tangential issues within those personal injury files which could lead to a class action. We’ll discuss those below.
So are you still interested in finding your first class action? Ok. Let’s discuss how to do that
- Learn What Claims Are Readily Classable
You now know that a claim involving physical or emotional injuries is almost never a candidate for class certification. But what kinds of claims are?
Consumer Contracts: Boilerplate contracts foisted upon consumers by corporations are very good candidates for class certification. When a specific company policy or procedure breaches a provision within that contract, it may well be that all of that company’s customers possess identical breach of contract claims. But be wary of “Fraud in the Inducement of Contract” claims! Anytime you invoke fraud you also invoke reliance. Reliance is usually an individual question specific to each person. Individuality can be deadly to a class action.
Insurance Policies: Insurance policies are, of course, just a specific breed of consumer contracts. But, as we all know, insurance companies can bend over backwards to interpret their liability under such policies as narrowly as possible. If your client is in a fight with an insurance company, or has been denied policy benefits, over a twisted interpretation of policy language, you may be witnessing the tip of a class action iceberg.
Statutory Claims: Civil claims based in statute generally apply to all people (or a specific group of people) equally. When corporate policies or procedures violate some statutory right belonging to one person, such policies or procedures could well be giving rise to a potential class action on behalf of all of the corporation’s customers that possess that statutory right.
Statutory class actions include claims under the SCRA (Servicemembers Civil Relief Act), TILA (Truth in Lending Act), and RCRA (Resource Conservation and Recovery Act), just to name a few.
So there’s your primer on how to find that first class action, or at least how to start looking for it!
Graham Newman, an attorney with Chappell Smith and Arden, P.A., focuses his practice on non-traditional litigation in areas such as class actions and statutory claims.