You may not be a consumer advocate, and class action practice may be way outside your usual repertoire. So why read this article? Because all your clients also are consumers who have rights, and class actions are critical to enforce those rights. How often has a client approached you with questions arising from their credit card, student or car loans, mortgage, debt collections, or other consumer-related problems when you realize that the common practice being complained of must be affecting hundreds if not thousands of other similarly situated consumers? And have you ever been asked by friends, family members, or clients what to do about a consumer class action settlement notice they just received? How do you respond? Simply put, it is imperative that all attorneys understand the role that class actions play in protecting the consumers they represent—even if they are not consumer advocates or class-action practitioners themselves.
The Importance of Class Actions
In consumer protection cases, class actions for small-damage claims are essential to address the injustices that are so commonly experienced by consumers and so rarely vindicated. Class actions allow advocates to achieve the compensatory and deterrent goals of consumer protection litigation. Damages are often too small to litigate as an individual case, but those claims can be combined into a class action to make relief for consumers and punishment of unlawful conduct possible. As Judge Richard Posner once aptly observed,
The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30. But a class action has to be unwieldy indeed before it can be pronounced an inferior alternative—no matter how massive the fraud or other wrongdoing that will go unpunished if class treatment is denied—to no litigation at all.
Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004).
The aim of many consumer class actions is deterring misconduct by defendants. This is especially true in cases where individual recoveries are small, but the aggregate claim involves substantial sums. Class actions level the playing field, enabling consumers to be compensated for injuries while potentially achieving significant injunctive relief, institutional change, or disgorgement of illegal profits. Denying class certifications in such instances would allow wrongdoers to be unjustly enriched and to continue to benefit from their ill-gotten gains. Class actions serve to provide consumers with a voice when one person alone would not be listened to.
When Will Solo Practitioners Encounter Consumer Class Actions?
There are certain circumstances in which every solo practitioner may need to be aware of consumer class actions in order to properly advise a client. A fundamental understanding of the role class actions play in consumer protection will aid in providing reliable advice to those clients, even when a solo practitioner’s daily practice does not involve class actions.
Certain clients may present individual issues that would be best resolved as a class action. An attorney approached with such a possibility should, as an initial matter, determine whether the class member’s specific consumer problems present common issues that lend themselves to a common resolution. Then, if a case is deemed suitable for class action treatment, an attorney must find a class representative that will maximize, both on a personal level and through the individual facts, the likelihood of a case’s success.
A putative class initially must demonstrate, pursuant to the requirements of Federal Rule of Civil Procedure 23 (Rule 23) and comparable state rules, numerosity, commonality, typicality, and adequacy of representation. There are also additional requirements under Rule 23 that must be satisfied depending on the type of remedy sought. (For more information about class action standards and requirements, as well as the rest of the topics discussed in this article, see National Consumer Law Center, Consumer Class Actions (10th Ed., 2020), updated at https://www.nclc.org/library.)
Claims that give rise to a definable class where common questions of law and fact predominate over individual issues (such as when violations are in standard form contracts or based on standard collection letters) are well-suited for certification in a suit for damages. Fewer differences in factual scenarios will limit the opportunities for challenges by defendants and increase the chances of success.
Therefore, disputes in which questions of individual reliance, intent, or knowledge are relevant, such as fraud cases, are difficult to certify because the critical element of the claim has to be decided on a class-member-by-class-member basis. On the other hand, causes of action that do not require such individualized proof often provide viable alternative claims that class action litigants can bring. In the context of consumer protection, these sorts of cases often arise under state Unfair or Deceptive Acts or Practices statutes, civil Racketeer Influenced and Corrupt Organizations Act claims, the Fair Credit Reporting Act, the Fair Debt Collection Practices Act, and the Truth in Lending Act, among others. Class actions under these statutes usually seek statutory damages, but at times they include actual damages, too.
Finding a Class Representative
Even if an issue and set of facts lend themselves to class treatment, the next challenge is finding a class representative who will maximize the chances of success of the class as a whole. Sometimes this is the very person who brought the issue to you in the first place. But other times you might need to search for a better alternative or additional options. Either way, before deciding to represent any plaintiff in a class action, a practitioner always should carefully interview, evaluate, and educate the individual being considered to be a class plaintiff.
An ideal candidate for class representative should:
- Understand the role of a class representative as a fiduciary for the class. The named plaintiff must possess the personal characteristics and integrity necessary to act in that capacity.
- Not have interests antagonistic to those of the class. A representative may have an additional claim against the defendant and remain an adequate representative if such individual claims do not interfere with the named plaintiff’s representation of the class. Alternatively, the representative must be willing to set aside personal interests in order to act in the best interest of the class.
- Understand the nature of a class action and the named plaintiff’s responsibilities. Reliable class representatives are essential because they must be available throughout the case to respond to discovery, give depositions, and testify at trial.
- Be able to withstand pressure. Typical defense tactics include an exhaustive deposition of the named plaintiff about the claims in the case and the plaintiff’s duties as a class representative.
- Be willing to educate themselves about the case. The named plaintiffs must be willing to read all the documents sent for review by class counsel (or to otherwise learn the information as his or her level of literacy allows).
The egregiousness of the facts underlying the named plaintiff’s claims will often impact a court’s willingness to certify the class and to grant the requested relief. Finding a named plaintiff with perfect facts may be difficult—or impossible. However, finding a plaintiff with strong and sympathetic facts will greatly increase the chances of successfully certifying a class.
Class Action Realities
Consumer class actions come with their own requirements, and these standards can be daunting for any practitioner. Limitations placed on Rule 23 have made class actions more complex and difficult to certify. Similarly, trends over the past several years have increased costs for plaintiff classes. Litigating a consumer class action is time consuming. As the size of the class increases, so will the challenges of obtaining and organizing the information needed for each step of the process (including certification, trial, proof of damages, etc.).
Barriers to class actions include:
- enforcement of arbitration provisions with embedded class action waivers in contracts;
- bans of class actions in particular state statutes;
- stricter standards for complying with the requirements of Rule 23 and heightened judicial scrutiny at the certification stage;
- jurisdictional and standing requirements in the class action context; and
- skyrocketing litigation costs for discovery, expert witnesses, and effective class notice.
Who Should Litigate the Case?
Time, resources, and the applicable rules often will prevent solo practitioners from litigating a class action by themselves. The “adequacy of representation” requirement of Rule 23 presents the seemingly paradoxical requirement that an attorney cannot represent plaintiffs in a class action until he or she has experience litigating a class action. This means, of course, that if inexperienced practitioners wish to bring the case, they must find co-counsel.
If a client wishes to pursue a claims through a class action, a practitioner can reach out to other qualified attorneys and advocacy organizations that would be willing to co-counsel or take over the case, depending on the wishes and resources of the referring attorney. A practitioner can forward these cases to attorneys who have brought similar class actions in the past, ideally (but not necessarily) against one or more of the same defendants.
Notice of a Class Action Settlement
The other class action circumstance that a practitioner typically may encounter is clients seeking advice because they have received notice that they are part of a proposed consumer class settlement. Most of the time, the person who has received a notice of a class settlement simply wants to know what it means.
Because most class members first become aware of the settlement when they receive mailed (or, more often now, electronic) notice, they usually have limited time to respond, so the consulted attorney must be cognizant of the relevant deadlines. The attorney should first carefully check the notice and review the settlement agreement and other relevant materials regarding the case. Doing so will enable the attorney to promptly provide advice regarding the claims being settled, the relief being granted, and to what extent, if any, additional claims are being released as a part of the settlement.
Taking into account the client’s individual priorities and the overall fairness of the settlement, should the client remain in the class, opt out of the class, or object to the settlement? Each option should be carefully weighed to determine which is in the client’s best interests.
- Remain in the class. Usually, a proposed consumer class action settlement does not require the class members receiving the notice to do anything further to participate in the settlement. If they are satisfied with the result and do not opt out, they automatically will be included in the settlement distribution, if any, and bound by the settlement’s terms. In some cases, however, the consumer is required by the settlement to act affirmatively by submitting a claim form or other necessary information to confirm participation. Failure to carefully comply with the strict requirements of the claim process may result in the double whammy of being bound by the terms of the settlement agreement while forfeiting all its benefits.
- Opt out. Class members should be interviewed with care to determine if they have individual claims with the potential for additional recovery. An attorney should advise a client to opt out of a settlement if the individual has incurred actual and provable damages that go substantially beyond the scope of the settlement—and is willing and prepared to pursue individual litigation to obtain them. Another situation in which it is almost always better to advise a class member to opt out of the settlement is if the release is so broad that it could damage the significant rights of that class member in the future.
Opting out of a consumer class action settlement means that the class member will not benefit from any of the settlement agreement’s terms. However, it also means that the class member will not be bound by the settlement release or prevented from pursuing individual claims for which the applicable statute of limitations were tolled during the pendency of the original class action suit.
- Object to the settlement. Finally, where individual litigation is not feasible for the client but the proposed class settlement appears to be insufficient, the class member should be advised of the right to object. For example, the class member may wish to object where a nationwide class action has superseded a statewide class action and the class members might do better as part of the statewide class action. To object, however, the class member must remain as part of the settlement class and not opt out.
A class member’s objection should follow the procedures set forth by local rules and standing orders, the class notice, and the settlement agreement (which may go beyond the local court requirements). Of particular importance, an attorney must determine the applicable deadlines in order to avoid dismissal on a technical flaw. The substance of the objection is more important than the number of objections. A single well-reasoned objection may be sufficient for the court to reject a settlement.
Although thinking about class actions may not be an everyday occurrence for a solo practitioner, maintaining an awareness of the strategic procedure will help you to more comprehensively advise your clients. Understanding the implications of a successful class claim, recognizing the role of class actions in effective consumer advocacy, and accessing the resources that make class actions practical, even when individual relief may not be, will enable you to provide appropriate counsel regarding the benefits that only consumer class actions can deliver.
Published in GPSolo, Volume 37, Number 3, May/June 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association or the Solo, Small Firm and General Practice Division.