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Column: Practical and legal differences of class and mass actions

May 23, 2012
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Indiana Lawyer Focus

By Scott Starr and Mario Massillamany

Massillamany Masssillamany
Starr Starr

Before filing a case on behalf of multiple people who have been injured, either physically or monetarily, an initial decision must be made of whether to bring each person’s claims individually or as a group. If you believe bringing the claims as a group would be more beneficial for purposes of economy of scale, greater bargaining power collectively and efficiency, the next issue is whether to pursue the case as a class action or a mass action. These types of procedural mechanisms for bringing a group of claims together are appropriate under different circumstances, and each has its own pros and cons.

Sometimes the decision of which type of action to pursue is easy, while other times there is some strategy and weighing of options involved, as well as legal considerations of whether the proposed class meets the criteria for certification. Here are some considerations to keep in mind when making this decision with your clients.

How many plaintiffs can be practically joined, and can they represent others or just themselves?

One of the most obvious differences between a class and mass action are the number of plaintiffs named in the lawsuit. Class actions have only one or a few named plaintiffs, who act as representatives of the entire class, because, as Trial Rule 23 says, the class is so large joinder of all the members would be impracticable. That means technically there are only a few named parties to the lawsuit, and those class members not listed as class representatives have very limited input and responsibilities with regard to the lawsuit.

Those absent class members normally don’t have to answer discovery, go to depositions or court hearings, and don’t have to prove their claims individually (at least not their liability claims). Instead, although there are some chances along the way for them to opt out or contest any settlement, for example, even class counsel only has to communicate with class members during certain limited times during the lawsuit. The other side of the coin of this representation, however, is that if the class is certified, the results of the lawsuit are res judicata for all class members – whether named or not. That is why to get certified as a class the court must determine that the class is adequately represented by both the class representatives and the attorneys for the class.

On the other hand, mass actions typically have many allegedly injured parties, too, but instead of choosing one or two people to represent everyone, each person is individually listed as a plaintiff. Since the Class Action Fairness Act was signed into law in 2005, whenever such a mass action lists more than 100 plaintiffs, it is typically deemed to be a class action removable to federal court by defendants. 28 U.S.C. 1332(d)(11). Further, when many lawsuits, even across districts, deal with the same issues, they often are brought together with federal multidistrict litigation governed by the procedural rules found at 28 U.S.C. 1407 and 2112.

Unlike with class actions, each plaintiff in a mass action has responsibilities for doing all the activities that any regular plaintiff must do, like discovery, etc. Further, although there are some procedural mechanisms that can be put in place to try to prove some elements of the case across the board for all claimants, at the end of the day each person’s case ultimately is decided individually.

How similar are the plaintiffs’ claims in regard to both commonality and typicality?

The other major difference between a class action and mass action is whether the claims are similar enough, either factually and/or legally, to be able to prosecute them as a whole. Class actions only can be brought if they meet all the requirements of Federal Rule of Civil Procedure 23 (or a similar state rule, such as Indiana Rule of Trial Procedure 23), whereas mass actions are a default when all such requirements cannot be met.

There are many procedural rules set in place for determining when a class action is appropriate, but ultimately the idea behind each of them is to make sure that the person who is the class representative can adequately represent the interests of his or her fellow class members. This was touched upon above, but it also is important for the other two major requirements for a class to be certified – commonality and typicality. The idea is that a class representative could not adequately represent another absent person if they do not pose questions of law and fact common to the class, and if the named parties’ claims or defenses are not typical of the class.

Mass torts sometimes are not the right fit for class actions.

A common example of claims that are sometimes not appropriate as class actions are mass torts, where multiple people are injured in a large accident. Mass torts can include such things as injuries from pharmaceutical drugs, large-scale accidents and even product liability claims. In fact, the comment to FRCP 23(b)(3) explicitly cautions against the use of the class-action device in mass tort cases. The reasons for this include that these cases involve personal injuries and sometimes even death, meaning that each claim is not easily described as “typical” because there is a need for individual evidence of exposure, injury and damages for each plaintiff, not just class representatives.

Here in Indiana we are unfortunately too familiar with such a large accident – the stage collapse at the Sugarland concert at the Indiana State Fair. In that case, the victims have brought a mass action, not a class action, against various defendants alleging fault for the accident. It would not have been appropriate to try to bring a class action because there was no commonality regarding the injuries, and therefore each plaintiff’s case ultimately must be decided on its own. On the other hand, the State Fair stage collapse case is perfect for a mass action as the liability claims (what caused the stage to collapse and who is responsible) will require the same proof for all the injured parties.

There are factual and legal differences between individual claims in mass actions. These differences make it impossible to fulfill the elements of typicality and adequacy which are required for Rule 23(a). Further, these same differences make it difficult to demonstrate that the putative class has the requisite “cohesiveness” which is required in Rule 23(b)(2) and makes it difficult to demonstrate that the putative class has common issues which “predominate,” which is required for Rule 23(b) claims.

Another reason not mentioned in procedural rules themselves, but which often is an important factor in why class actions do not practically work for mass torts, is that when someone suffers a personal injury, they and the courts have major concerns about autonomy and being properly represented as a class member. Each plaintiff has significant interest in individually controlling the prosecution of separate actions and a substantial stake in making individual decisions on whether and when to settle. This came into stark focus in the nationwide asbestos settlement classes proposed in Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), when the individual absent class members had concerns so great about the proposed class-action settlements that they pursued their objections all the way to the United States Supreme Court on multiple occasions.

While there are many legal and practical differences between class actions and mass actions, they often have the same general goal in mind – get relief for the injured parties as quickly, efficiently and in as cost-effective manner as possible. Certain factual situations lend themselves better than others to one procedural mechanism, so the first step is to examine the facts of the case and decide which has a better chance of achieving the goals of your clients before going forward.•

__________

Scott Starr is a partner at Starr Austen & Miller and Mario Massillamany is an associate at Starr Austen & Miller. Both concentrate their practices in the areas of securities and class-action litigation.  Massillamany and Starr currently are involved in numerous class-action lawsuits throughout the country including the multidistrict litigation against Dupont and the Indiana State Fair mass-action lawsuit.  The opinions expressed are those of the authors.

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  1. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  2. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

  3. Low energy. Next!

  4. Had William Pryor made such provocative statements as a candidate for the Indiana bar he could have been blackballed as I have documented elsewhere on this ezine. That would have solved this huuuge problem for the Left and abortion industry the good old boy (and even girl) Indiana way. Note that Diane Sykes could have made a huuge difference, but she chose to look away like most all jurists who should certainly recognize a blatantly unconstitutional system when filed on their docket. See footnotes 1 & 2 here: http://caselaw.findlaw.com/us-7th-circuit/1592921.html Sykes and Kanne could have applied a well established exception to Rooker Feldman, but instead seemingly decided that was not available to conservative whistleblowers, it would seem. Just a loss and two nice footnotes to numb the pain. A few short years later Sykes ruled the very opposite on the RF question, just as she had ruled the very opposite on RF a few short years before. Indy and the abortion industry wanted me on the ground ... they got it. Thank God Alabama is not so corrupted! MAGA!!!

  5. OK, take notice. Those wondering just how corrupt the Indiana system is can see the picture in this post. Attorney Donald James did not criticize any judges, he merely, it would seem, caused some clients to file against him and then ignored his own defense. James thus disrespected the system via ignoring all and was also ordered to reimburse the commission $525.88 for the costs of prosecuting the first case against him. Yes, nearly $526 for all the costs, the state having proved it all. Ouch, right? Now consider whistleblower and constitutionalist and citizen journalist Paul Ogden who criticized a judge, defended himself in such a professional fashion as to have half the case against him thrown out by the ISC and was then handed a career ending $10,000 bill as "half the costs" of the state crucifying him. http://www.theindianalawyer.com/ogden-quitting-law-citing-high-disciplinary-fine/PARAMS/article/35323 THE TAKEAWAY MESSAGE for any who have ears to hear ... resist Star Chamber and pay with your career ... welcome to the Indiana system of (cough) justice.

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