Archive for September 3rd, 2008

As someone who reads a lot of news articles about class action lawsuits, I see a lot of technical misstatements by the media in reporting on the mechanics of class action procedure.  To most casual readers, these errors may not be that important to the overall story about a particular lawsuit, so the distinctions that I will discuss below may seem a bit hyper-technical.  But, if you’re still reading this entry, you’re probably at least a little curious, so here goes…

One common mistake addressed in a previous entry is the identification of some cases as “class actions” when they are in fact mass tort cases or other types of representative actions.

Recently, I have come across quite a few articles and TV reports that describe a class action lawsuit or settlement and then discuss how affected people can “join” in the case.  That statement can be technically correct in describing certain employment actions, such as those filed under the Fair Labor Standards Act, that expressly require affected persons to affirmatively opt in to the suit.  It might also be correct in describing group lawsuits in many other parts of the world that have an “opt in” collective action procedure.  However, in reference to most consumer class actions filed in the US, the word “join” is a misnomer.  This is because a class certified under Rule 23, Federal Rules of Civil Procedure (and the similar rules of many states) automatically includes all members of the defined class unless they “opt out”.  So, to discuss how a person might “join” a class action is actually more than a technical error, it’s actually the polar opposite of what really happens in a class action.  What’s more, the right to opt out may not exist at all if the claim is not one for damages under Rule 23(b)(3).

So what do journalists mean when they talk about “joining” a class action?  It depends on the context, but there are a couple of possibilities.  First, they might be referring to the steps necessary to file a claim for benefits under a class action settlement.  In that situation, a person might be a class member but not be entitled to any settlement benefits unless he “joins” by filing a claim form.  Second and less likely, the word “join” could be in reference to a plaintiffs’ firm soliciting potential class representatives for a yet-to-be filed class action lawsuit or soliciting additional representatives or witnesses in an existing class action.  In that case, the word “join” would denote a much more active role than just taking part in the benefits of a potential windfall.

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