March 17, 2021

How do class action lawsuits get started?

Technically, filing a class action is often accomplished by checking the appropriate box in the simple complaint filing sheet provided by your state’s civil court. In addition to the filing sheet the plaintiff must also file the complaint, which contains the allegations of the lawsuit. The plaintiff must then serve the complaint on the defendant. But the real procedural step in these cases is certification of the class.

The requirements for certification vary from state to state, but most states generally follow the same broad requirements. For the judge to certify the class, the representative plaintiff must prove:

  • The representative has suffered the same harm or injuries as members of the proposed class.
  • The class can be defined clearly enough to determine who is and is not a member
  • The number of class members makes joining all of them to the lawsuit impractical (40 or more is almost always enough, 21 or less is almost always not enough).
  • A common set of facts or legal interest underlies all of the members’ alleged injuries.
  • The representative plaintiff’s claims are so similar to those of the class members that litigating the representative plaintiff’s case will adequately decide the absent class members cases.
  • A class action is the best and most efficient way of resolving the claims, either for the plaintiffs or for the defendants.

Getting a class certified is not simply a matter of checking the right boxes. The judge is allowed to exercise a fair amount of discretion, and the arguments for and against certification can be quite complex and protracted.

If the class is not certified, the case is dismissed. If the class is certified, the case can move on to pretrial procedures. A certified class does not mean the judge thinks the defendant is at fault for the class’s collective harms, or that a jury is likely to find the defendant liable, but it does mean the case has been vetted to some extent, and the defendant is now facing a legitimate lawsuit.

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