What is a class action in the USA?
A class action is a collective claim in which the court awards permission to an individual or individuals to bring the claims of others similarly situated (the class members) in a single case. Rule 23 of the Federal Rules of Civil Procedure prescribes the model for most class actions. Under Rule 23(a), one or more members of a class may sue or be sued as representative parties on behalf of all members if:
- the class is so numerous that joinder of all members is impracticable;
- there are questions of law or fact common to the class;
- the claims or defences of the representative parties are typical of the claims or defences of the class; and
- the representative parties will fairly and adequately protect the interests of the class.
The claims of the class members must be so similar to those of the class representative that a trial of the representative’s claim can appropriately decide the outcome for all class members. A class action must define the class, the claims, the issues, and appoint class counsel (Rule 23(c))[1].
Class actions operate on an opt-out regime, whereby an action is pursued on behalf of a defined class of unnamed claimants, who are deemed included in the action and are bound by the outcome unless they “opt out”. There is clearly a presumption in the USA that everybody will enjoy litigation!
Due to the “opt out” regime in the United States, there is less importance placed upon identifying each and every potential claimant prior to the filing of a class action as parties are included by default. Depending on the type of action and class, notice requirements fall in place following the certification of a class action including the giving of notice that the court will exclude from the class any member who requests exclusion and the binding effect of a class judgment on class members[2]. However, it may sometimes be difficult to identify the individual members of a class in order to personally notify them due to the sheer number of members.
What sort of cases would be appropriate for Class Actions in the USA?
Class actions are often brought in “David v Goliath” circumstances where an individual does not have the resources to challenge a multinational company i.e. where a bank has charged excessive fees on a certain category of customer accounts. The class may be defined as including all customers who fell victim to the bank’s excessive fees. This could include hundreds, if not thousands of customers, rather than one individual. The downside of the “opt out” regime is that there may be individuals who are not aware they have been overcharged yet are directly affected by the outcome of the action unless they opt out. It is for this reason that individual class members should receive notice of the class action if they can be identified using reasonable effort[3].
Class actions can lead to large scale pay-outs. In 2005, investors in the multinational media company, AOL Time Warner, received a settlement of US2.5 billion when suing the company for fraud under federal securities law. They claimed the company disguised its poor performance between 1998 – 2002 by forging multiple transactions which they estimated to inflate the company’s value by US1.7 billion.
In 2014, the Citigroup Banking and Financial Services Corporation agreed to pay US7 billion to settle a class action brought by investors who acquired shares between February 2007 and April 2008. The Claim was bought against Citigroup and some of its senior executives who misrepresented the company’s exposure to collateralised debt obligations (“CDOs”) which were a high risk investment and therefore, a major factor in the 2007 – 2009 US property crash.
How do people know they are included in group litigation in the USA?
If a class claims individualised fiscal awards, the class members are entitled to notice that the class has been defined and certified by the court. A notice campaign must then be approved by the court. However, if the class claims equitable or a collective award, notice is not required but may be provided. [4]
The purpose of a notice is to inform class members of the existence of the class action and their right to “opt out” of the class. Members must also be informed if they do not opt out, any judgment will be applicable to them and they will not be permitted to bring an individual claim at a later stage.
Depending on the nature of the claims and type of class, notice can be provided by mail, email, publication in newspapers and magazines, advertisements on television, radio and internet websites and by any other method likely to come to the attention of class members. Solicitors may also provide information regarding a class action they are investigating on their firm website.
Why don’t we have class actions in the United Kingdom?
Class actions are not permitted in the United Kingdom per se although we do have collective forms of litigation available such as “Group Litigation Orders”.
A Group Litigation Order (“GLO”) is an order under Civil Procedure Rule (CPR) 19.11 to provide for the case management of claims which give rise to common or related issues of fact or law (the “GLO issues”)[5].
A GLO allows individuals who have claims (whether issued or not) giving rise to common or related issues of fact or law, to join forces. This has many advantages such as splitting the costs between the group litigants, increasing the availability of similar evidence and the sharing of knowledge and litigation risk. It is important to note that parties do not have an absolute right to proceed under a GLO and the Court must grant permission to the Applicants to litigate in this manner. Under CPR 19.11, the Court may make a GLO where there are, or are likely to be, a number of claims giving rise to the GLO issues.
An application for a GLO may be made at any time before or after any relevant claims have been issued and may be made either by a claimant or a defendant[6]. If a successful application is made to the court in accordance with CPR Part 23, the Court can manage all claims covered by the order in a coordinated way. Under CPR 19.11, a GLO will establish a group register in which the relevant claims will be entered, specify the GLO issues that will identify the claims to be managed as a group, and specify which court will manage those claims[7]. All judgments, orders and directions of the court will be binding on all claims within the GLO unless ordered otherwise[8].
Most recently in the United Kingdom, the VW Emissions Action Group, made up of many thousands of motorists affected by the Volkswagen emissions scandal, has filed an application with the High Court for a GLO order against car manufacturers Volkswagen, Audi, Skoda and SEAT. It is alleged that the manufacturers deceived customers as to the “green nature” of the cars in question by installing devices which duped emissions tests. Volkswagen have already had to pay US14.1 billion towards settlement in relation to a class action brought in the United States.
If UK litigators wish to conduct GLO litigation, there is no straightforward process for finding others who may have claims which give rise to common or related issues of fact or law. Further, Claimants in the UK, must “opt in”- i.e. agree to be party to the litigation and make an application to be included. This is in stark contrast to class actions in the US whereby those falling under the definition of the “class” are presumed to be included in the proceedings and must “opt out” if they do not want to be bound by the rulings of the court.
How do lawyers in the UK find other claims (issued or otherwise) which are sufficiently similar to apply for a GLO?
There is no definitive procedure in place whereby solicitors and claimants are adequately able to locate others who may have claims which give rise to common or related issues of fact or law.
Solicitors may advertise their involvement in group claims through postings on their firm’s website in the hope that additional claimants may come forward. Such publicity must meet the standards set by the solicitors’ code of conduct such as the rule prohibiting the solicitation of clients.
Another option is to search the court database for cases currently filed but yet to be determined. You may search cases by party name and division. This may enable a party to identify a claim or multiple claims that are already afoot and bear notable similarities to their own. This can be a difficult task as the database provides limited information as to the subject matter of proceedings and may produce hundreds, if not thousands of individual cases currently before the courts.
In the event that a GLO is awarded by the court, there is further opportunity to identify other claims (whether issued or not) which give rise to common or related issues of fact or law and invite them to join the GLO. When a GLO is approved, the court will commonly order the parties to publicise the existence of the GLO so that all relevant claims can be managed within it. This usually takes the form of advertisements approved by the court if the parties are unable to agree.
Once a GLO is ordered, a copy of the order should also be supplied to the Law Society[9]. Solicitors acting for GLO claimants are encouraged to contact the Law Society Multi Party Actions Information Service to identify other potential claims giving rise to the same issues.
A list of GLO’s is also maintained on the justice website, which includes details of the lead solicitors and case issues defined by the GLO.
Summary
The advantages of class actions and GLO’s are numerous however both systems suffer comparable difficulties in identifying those individuals whom have similar potential claims against a defendant. In the USA, difficulties arise due to the sheer number of potential claimants included within a class. In the United Kingdom, the difficulties arise as we lack a registration process or other such mechanism by which people adequately describe or enter their existing claims. Considering the advantages of a GLO, perhaps more thought should be given to sharing of such relevant information.
Lauren Priest
[1] Rule 23, Federal Rules of Civil Procedure.
[2] Rule 23(2)(B), Federal Rules of Civil Procedure.
[3] Rule 23 (2), Federal Rules of Civil Procedure.
[4] Ibid.
[6] Practice Direction 19B – Group Litigation, 3.1.
[8] CPR 19.12.
[9] Practice Direction 19B – Group Litigation, 11,
