Andrew Shamis, Esq.
April 25, 2024
December 26, 2023

Class Action Lawsuit Guide (for Plaintiffs)

In a class action lawsuit, class members, referred to as the class representative(s), are allowed to represent the interests of the entire group of plaintiffs who share a common grievance against the same defendant. When numerous plaintiffs have similar claims against a defendant, it makes sense to consolidate those claims into a single case.  In a class action, smaller value violations by a defendant add up to make a big case.  Some key aspects of class action lawsuits are:

  • Numerosity: There needs to be enough potential class members to make it impractical for each person to sue individually. The class typically numbers at least 40 members.
  • Commonality: The class members share common legal or factual questions about their claims against the defendant. Their situations and injuries are similar.
  • Typicality: The claims of the class representative(s) are typical of the entire class. This ensures the interests of all class members are fairly represented.
  • Adequacy: The class representative(s) can fairly and adequately protect class interests. They don't have conflicts of interest with other class members.
  • Predominance: Common questions of law and fact predominate over individual issues that affect only individual members. This makes a class action beneficial overall.
  • Superiority: A class action is the best available method for reasonably and efficiently adjudicating the case for both the plaintiffs and the courts.

The main advantage of class actions is that they enable many people with modest individual claims to file a lawsuit they otherwise would not have been able to afford and have damages that may not be worth litigating on their own. The procedure streamlines proceedings for both parties and the court system by combining numerous similar claims into a single lawsuit. 

Benefits of Filing a Class Action Lawsuit

The primary purpose of class action lawsuits is to provide a mechanism for addressing widespread harms or grievances efficiently and equitably. Class action lawsuits serve several essential functions:

Efficiency: Simplifying the Legal Process

Class action lawsuits provide an effective way to streamline multiple similar claims into a single court proceeding. For example, imagine if hundreds or even thousands of consumers purchased a defective product that caused minor injuries. Instead of the court system being flooded with individual cases, which could clog the legal pipeline and take years to resolve, a class action groups these claims together. This not only saves judicial resources but also provides uniformity in judgment (and relief!). 

A real-world example of this is the case against VW for emissions violationsy, where multiple lawsuits were rolled into one massive class action to address the emissions fraud. The legal process was made more efficient and consistent by consolidating these claims.

Access to Justice

There are many instances where the damages suffered by an individual might be relatively small, making it economically unfeasible for them to seek legal action alone. For example, suppose a company overcharges its customers by $10 each. In that case, an individual might dismiss the idea of going to court over such a small amount. However, the cumulative damage can be substantial when thousands or even millions of customers are affected. 

Through a class action lawsuit, these individuals can collectively seek compensation. A notable example is the case against Apple, where the company allegedly slowed down older iPhone models. While the loss for each user might have been minor, as a collective, they were able to seek and secure a settlement worth hundreds of millions of dollars.

Equalizing Power

Many corporations have enormous resources at their disposal, including extensive legal teams. This can make it seem impossible for an individual seeking to challenge these corporations. Class action lawsuits can balance the scales. Individuals can pool their resources by grouping together, giving them a fighting chance against major corporations. One classic example is the lawsuit against Pacific Gas and Electric Company in Hinkley, California, famously depicted in the movie "Erin Brockovich." Residents of Hinkley were able to challenge the multi-billion-dollar company over water contamination, leading to a massive settlement.

Broad Remedies: Paving the Way for Industry-Wide Changes

One of the most far-reaching benefits of class action lawsuits is their potential to provoke broader industry changes. Successful class actions don't just affect the defendant; they often set precedents that other companies in the industry take note of. The lawsuit against the tobacco industry in the 1990s is an example. The litigation led to significant financial settlements and resulted in a sea of change in how tobacco products were marketed, labeled, and understood by the public. This case demonstrated how a class action could lead to reforms that protect future generations and reshape entire industries.

Understanding Class Action Lawsuits

A class action lawsuit is a legal procedure that permits one or several plaintiffs to file and prosecute a lawsuit on behalf of a larger group, or "class," of individuals who share similar legal claims. The primary criteria for certifying a class action is that there are common questions of law or fact that make a class-wide proceeding easier than individual lawsuits.

The Role of Lead Plaintiffs and Class Counsel

The lead plaintiffs (often referred to as the class representatives) are the named individuals in the lawsuit. They represent the interests of the class members and typically have claims that are typical or representative of the claims of the class. Their role is to work with the attorneys, assist in the litigation process, and sometimes provide testimony or evidence relevant to the case.

Class counsel, on the other hand, are the attorneys representing the class. They bear the responsibility of litigating the case and advocating for the best interests of the class members. They work with the lead plaintiffs to conduct the lawsuit.

Class Certification Process and Requirements

During the class action case, the court must certify or approve the case as a class action. The class certification process begins when the plaintiff(s) file a motion to have the case treated as a class action (motion for class certification). During this process:

  1. The court evaluates whether the proposed class meets the criteria mentioned above (numerosity, commonality, typicality, and adequacy of representation).
  2. The court will also consider other factors, such as whether the defendant has acted or refused to act on grounds generally applicable to the class or whether there are questions of law or fact common to the class that predominate over questions affecting individual members.
  3. If the court certifies the class, the lawsuit can proceed as a class action. If not, the plaintiffs might still pursue their individual claims, but they cannot represent the broader class.

Class Action Fairness and Jurisdiction

The Class Action Fairness Act (CAFA) of 2005 was enacted to address concerns regarding class action lawsuits. It aimed to ensure fairness in these suits, particularly in how they are prosecuted and how settlements are distributed. CAFA did this by expanding federal jurisdiction over many large class actions and mass actions, allowing them to be heard in federal court rather than state court. This move was designed to prevent "forum shopping," where attorneys might choose state courts that are more favorable to their claims.

Jurisdiction is important as it determines which court will hear the case. Under CAFA, federal courts have jurisdiction over class actions where the amount in dispute exceeds $5 million, and any member of the plaintiff class is a citizen of a state different from any defendant.

Types of Class Actions

Class actions are versatile legal tools used to address a variety of grievances. While the core principle stays the same—to represent a larger group's interests through a few individuals—class actions can manifest in different domains based on the nature of the wrongdoing. Here's a deeper dive into some common types.

Securities (stock) Class Actions

Securities class actions often arise when shareholders sue a company for providing false or misleading information related to its financial health or business operations. These can pertain to issues like financial statement fraud, insider trading, or misrepresentations in a company's public filings. For example, the Enron scandal led to a massive securities class action as shareholders suffered significant losses due to the company's deceptive accounting practices.

Employment Class Actions

These class actions relate to disputes between employers and their employees. Common grounds include wage and hour violations, workplace discrimination, wrongful termination, and breaches of employment contracts. 

Consumer Class Actions

Consumer class actions address the grievances of consumers against companies. These can relate to product defects, false advertising, orr other forms of consumer fraud. The lawsuit mentioned earlier against Apple over its admission to slowing down older iPhones is a prime example, where consumers alleged deceptive practices.

Breach of Contract Class Actions

When multiple individuals or entities believe that another party has breached a standardized contract they all entered into, they may file a class action. These often relate to service agreements, insurance policies, or membership contracts. An example might be a group of homeowners suing an insurance company for systematically denying claims after a natural disaster.

Environmental Class Actions

Environmental class actions target entities believed to be responsible for environmental harm that affects large groups of people. Such cases might involve pollution, habitat destruction, or health risks posed by contaminants. A landmark case in this category was the litigation against British Petroleum (B.P.) following the Deepwater Horizon oil spill in 2010.

Civil Rights Class Actions

These class actions aim to address violations of individuals' civil rights, often based on discrimination, unlawful practices by governmental entities, or systemic biases. Brown v. Board of Education, which challenged racial segregation in public schools, remains one of the most impactful civil rights class actions in U.S. history.

Steps in a Class Action Lawsuit

Class action lawsuits can be intricate, given the many stages and unique features involved in such cases. Below is a detailed breakdown of the steps involved:

Find a Class Action Attorney

When facing a situation that requires a class action lawsuit, you need the right attorney and law firm to represent you. They can make the difference between a successful claim and a lost cause. The following are some detailed steps to consider during this selection process.

  1. Research: Begin by searching the internet for top-rated class action litigation attorneys. Online legal directories, websites, and reviews can provide information about potential candidates. Local and national bar association directories are valuable resources, listing attorneys based on their specialization. Personal referrals can also be helpful. Perhaps someone in your network has had a positive experience with a class action attorney and can provide a recommendation.
  2. Experience: Make sure the attorney or firm you are considering has a strong track record of handling cases that are similar to yours while also achieving exceptional results. Look into their past verdicts, settlements, and client testimonials.
  3. Consultation: Once you have shortlisted a few attorneys, schedule a free initial consultation with each. This preliminary meeting serves as an opportunity to present the specifics of your case and evaluate the attorney's knowledge firsthand. Ask questions about their experience, approach, and insights into your case. Their responses can provide a clearer understanding of their abilities and dedication to your case.
  4. Fee Structure: Class action lawsuits can be lengthy and financially taxing. Therefore, understanding the attorney's fee structure beforehand is wise. Many class action attorneys work on a contingency fee basis, meaning they only receive payment if the lawsuit is successful. This arrangement can be beneficial for plaintiffs as it often reduces upfront costs. 
  5. Communication: Transparent and timely communication is the key to a successful attorney-client relationship. Choose an attorney who sets clear expectations and timelines and is proactive in keeping you updated about the case's progress. Regular updates and the ability to reach your attorney when you have questions or concerns can alleviate much of the stress in litigation.

Step-by-Step Process of Filing a Complaint and Seeking Class Certification

Class action lawsuits have several stages that make sure the claim is valid and can be pursued on behalf of the represented group. Here's a deeper dive into these steps.

1. Drafting the Complaint

The start of any lawsuit is its initial complaint. This document details the grievances the plaintiffs hold against the defendant. It will outline the specific legal claims, the facts supporting those claims, and the relief sought. Additionally, it establishes the grounds for why the case should be treated as a class action, detailing how the defendant's actions have affected a group of people in a similar manner.

2. Filing the Complaint

Once the complaint is drafted, it moves from the attorney's desk to the courtroom. The complaint is filed in a court that holds the appropriate jurisdiction over the case, which could be at the state or federal level, depending on the nature and scale of the grievances. This filing serves as the official initiation of the lawsuit, notifying the defendant of the claims against them.

3. Motion for Class Certification

After the initiation of the lawsuit, the representing attorney for the plaintiffs submits a motion for class certification. This motion is essentially a formal request, asking the court to recognize the lawsuit as a class action. It argues that the lawsuit meets the specific criteria required for class actions and that it's not just an isolated incident but a widespread issue affecting many.

4. Class Certification Hearing

Upon receiving the motion for class certification, the court will schedule a hearing about the proposed class. This is where the court evaluates if the proposed class indeed meets the required criteria for class actions. As mentioned above, these criteria include:

  • Numerosity: A sufficient number of affected claimants exist to make individual lawsuits impractical.
  • Commonality: Common questions of law or fact exist among the class members.
  • Typicality: The claims or defenses of the class representatives are typical of those for the entire class.
  • Adequacy of Representation: The class representatives can adequately protect the interests of the entire class.

5. Certification Granted/Denied

Following the class certification hearing, the court, after hearing insights and arguments from both sides, will decide whether to grant or deny class certification. If the court believes the lawsuit satisfies the above criteria, certification will be granted, allowing the case to proceed as a class action. If not, the case could potentially continue, but only on behalf of the individual plaintiffs.

Notice and Opt-In/Opt-Out Process for Potential Class Members

Class action lawsuits are unique in the sense that they seek to represent a large number of individuals who might have been adversely affected by a defendant's actions. An essential component of this process is ensuring that potential class members are informed about the lawsuit and given the option to participate or abstain. 

Once a court has certified the class, the step that follows is notifying potential class members about the ongoing lawsuit. This notice is not just a formality but a legal requirement, ensuring that those affected are made aware of the action and their rights within it. Typically, this notification is disseminated through mail, email, or even published ads, depending on the scale and nature of the class. It includes details like:

  • The grounds and nature of the lawsuit.
  • A definition and characteristics of who falls under the class.
  • Information on the legal rights of potential class members, including the right to participate, exclude oneself, or object to the lawsuit's proceedings.

Opt-Out Process

"The Opt-Out model which is prevalent in the U.S., assumes the automatic inclusion of potential class members. They are inherently a part of the class unless they take deliberate steps to remove or "opt out" of such representation. This means most clients should make a claim if possible because otherwise their opportunity to participate will forever be lost.  

Response Period

Regardless of the model in use, potential class members are usually afforded a window of time to make their decision, known as the response period. This period allows people to evaluate their position, seek legal counsel if needed, and subsequently decide whether to opt-in, opt-out, or remain passive participants. Once this period passes, the decision, whether active or passive, is typically binding for the duration of the class action.

Trial or Settlement of the Class Action

Before any formal trial proceedings, both parties – the plaintiffs and the defendant – enter the discovery phase. This stage shapes the trajectory of the lawsuit:

  • Information Exchange: Discovery allows both sides to request and exchange information. This can include documents, electronic data, internal communications, and other relevant evidence.
  • Gathering Evidence: Each party will collect evidence to support their arguments. This could involve collecting testimonies, expert reports, or other materials that could shed light on the claims or defenses.
  • Conducting Depositions: Depositions are formal, recorded interviews taken under oath. Both parties have the right to depose individuals, which might include the plaintiffs, company representatives, or expert witnesses. These depositions can provide insights, confirm facts, or even highlight inconsistencies in testimonies.


While many class action lawsuits find resolution before reaching this stage, some do go to trial:

  • Presentation of Case: In the trial phase, both sides present their respective cases, relying heavily on the evidence gathered during discovery. Arguments are articulated, witnesses are examined and cross-examined, and experts might be called upon to testify.
  • Judicial Deliberation: The merits of the case are examined before a judge or, in some instances, a jury. The role of the court here is to consider the presented facts, determine liability, and, if the defendant is found liable, decide on the appropriate remedies or compensation.


A large majority of class action lawsuits end in settlements:

  • Negotiation Dynamics: Settlement discussions can be started at virtually any stage of the lawsuit, even before a class is formally certified or after a trial has commenced. These negotiations can be informal or can occur in structured mediation sessions.
  • Reaching an Agreement: Once both parties reach a consensus on the terms, a formal settlement agreement is drafted. This outlines the compensation for the class members and any other agreed-upon terms.
  • Court Approval: The court plays an overseer role, ensuring the proposed settlement is fair, reasonable, and in the best interests of the class members. After thorough scrutiny and sometimes a fairness hearing, the court will either approve or deny the proposed settlement.

Procedure for Distribution of Damages to Class Members

Following a favorable verdict or an approved settlement in a class action lawsuit, the damages awarded are not typically distributed immediately. Instead, they're pooled into what's known as a "Settlement Fund." This fund acts as a reservoir for the awarded monies, ensuring organized, transparent, and traceable distribution to the affected class members.

Claim Process

Before receiving their rightful share, class members may be required to undergo a claims process. This process is used to:

  • Confirm their eligibility as a member of the affected class.
  • Determine the extent or specifics of their individual claim, especially in cases where damages might vary among class members.

Class members might be asked to provide documentation, testimonials, or other evidence supporting their claim. This ensures that funds are allocated in a manner consistent with the harms experienced.


After the claims are reviewed, validated, and approved, the next step is the actual distribution of the funds.

In cases with uniform damages—where each class member has experienced similar harm—the distribution might be straightforward, with each member receiving an equal share.

Conversely, in more complex lawsuits, where the degree of harm or loss might vary among class members, the distribution will be proportional. This means that those who suffered more would be entitled to a larger piece of the settlement pie.

Residual Funds

Despite best efforts, there might be scenarios where not all the funds from the settlement are claimed. Reasons could range from class members being untraceable to some opting not to claim their share. In such instances, the residual funds don't just go unused.

A popular approach is the "cy pres" doctrine (from the French phrase "cy près comme possible," meaning "as near as possible"). Under this, the leftover funds are given to charities or organizations that align with the spirit of the lawsuit, ensuring that the money still goes towards a cause that indirectly benefits the class or addresses the harm initially caused.

In some cases, residual funds might be reinvested into further actions or measures that benefit the class members or address the grievance at the heart of the lawsuit.

Compensation and Ethical Considerations

Class action lawsuits, while primarily aimed at ensuring justice for aggrieved parties, bring along with them financial and ethical considerations. From dividing the settlement proceeds to ensuring that the legal representatives are compensated fairly yet ethically, there is a lot to unpack.

Breakdown of Division of Settlement Proceeds Among Lead Plaintiffs and Class Members

Representing a class in a lawsuit requires a lot of time, effort, and even personal risk. Therefore, to acknowledge this, lead plaintiffs or class representatives are often provided with an "incentive award." This award is slightly larger than what an average class member might receive, recognizing the additional burdens and responsibilities shouldered by these representatives. It compensates for their active involvement in the lawsuit, from assisting in the discovery process to potentially testifying in court.

Class Members' Distribution

Once the lead plaintiffs' incentives are taken care of, the focus shifts to the broader class.

The bulk of the settlement fund is earmarked for distribution among the class members. The nature of this distribution is shaped by the specifics of the lawsuit. In some scenarios, clear equal distribution among all class members might be deemed appropriate.

However, in cases with varying degrees of harm or loss experienced by class members, the distribution becomes proportional. Here, those who suffered greater harm or loss would receive a correspondingly larger share of the settlement.

Contingency Fees for Class Action Attorneys

Class action attorneys often operate on a contingency fee basis, meaning they're paid only if the lawsuit is successful. Typically, these attorneys receive a percentage of the total settlement or award. While this percentage can vary, it commonly ranges from 20% to 40%.

Attorney fees in class actions usually require court approval. This ensures that the fees are reasonable and not disproportionate to the settlement, protecting the interests of the class members.

Ethical Considerations in Class Action Litigation

One of the biggest ethical concerns is ensuring that the lead plaintiffs and class counsel fairly and adequately represent the interests of all class members. This avoids conflicts of interest and ensures that no subgroup within the class is disadvantaged.

Ethical considerations also extend to ensuring that all potential class members receive clear and timely notifications about the lawsuit, their rights, and any actions they might need to take.

While class actions are powerful tools, they must be used responsibly. Filing suits without merit not only undermines the legitimacy of genuine cases but also burdens the legal system.

Considerations for Joining or Starting a Class Action Lawsuit

Deciding whether to join or start a class action lawsuit is a huge decision that requires careful consideration. Understanding the process and the potential outcomes is essential for any individual or group contemplating this route.

Opting In and Opting Out of a Class Action

When a class action lawsuit is certified, potential class members are typically notified about the litigation. This notice will detail the lawsuit, the issues at hand, and the rights of the potential class members.

Read the notice thoroughly to understand what's expected of you and what your choices are. If you do nothing, you're generally automatically included in the lawsuit (in jurisdictions with an opt-out model).

  1. Opt-In: Some jurisdictions or certain types of class actions may require potential class members to actively choose to be a part of the lawsuit. This is known as an opt-in system. Unless you actively indicate your intention to participate, you won't be included in the lawsuit or the potential settlement.

  1. Opt-Out: In an opt-out system, prevalent in places like the U.S., if you wish NOT to be a part of the class action (perhaps you want to pursue individual litigation), you must actively notify the appropriate parties of your decision to opt out.

Remember, if you opt out, you won't be bound by the result of the class action, whether it's favorable or not. If you remain in the class (either by opting in or not opting out), you are bound by the outcome and typically give up your right to file an individual lawsuit regarding the same issue.

Amount of Compensation in Class Action Lawsuits

In a class action, the total settlement or award is divided among the class members. While this collective approach can lead to large settlements, individual compensation can vary. It may be substantial, minimal, or even non-monetary, depending on the case and the number of class members.

Individual payouts can be influenced by the degree of harm experienced, the evidence provided, or the nature of the claim. For instance, in a product defect class action, those who suffered more severe consequences might receive a larger portion of the settlement. Attorney fees and litigation costs are usually deducted from the settlement amount before distributing the compensation. 

While class actions can lead to substantial settlements, it's best to have realistic expectations. The primary aim of class actions is to ensure justice and hold wrongdoers accountable. Sometimes, the non-monetary outcomes, such as changes in corporate behaviors or legal precedents, can be as impactful as financial compensation.

Class Actions vs. Mass Torts

Both class actions and mass torts are mechanisms designed to address harms suffered by multiple individuals, often at the hands of powerful entities. However, they differ in their structure, intent, and procedural aspects. Let's dive deeper into these differences and the considerations when choosing between the two.

Differences Between Class Actions and Mass Torts

All plaintiffs in a class action have claims that share common issues of law or fact. They're treated as a single entity or "class," and a representative litigates on behalf of the entire class.

In mass torts, each plaintiff has an individual claim resulting from distinct damages. While these claims are similar (often because they arise from the same product or event), they're treated individually.

Procedural Approach

In class actions, the case is litigated as a single action, with the outcome binding all class members except those who opt out (in jurisdictions with an opt-out approach).

For mass torts, each claim within a mass tort retains its individual nature. Though they might be consolidated for some pre-trial proceedings to promote efficiency, they're not judged as a single unit.


Damages for class actions are usually distributed from a single settlement fund, and individual class members might not have control over the amount they receive.

Since mass tort claims are individual, damages are assessed on a case-by-case basis, reflecting the specific harms each plaintiff suffered.

Scope and Application

Class actions are best suited for cases where the plaintiffs have suffered similar harms from the defendant's actions, like securities fraud or systematic employment discrimination.

Mass torts are commonly used in situations where a single product or event has caused varying degrees of harm to individuals, such as in pharmaceutical cases where a drug has different side effects on different people.

Factors to Consider When Choosing Between Class Actions and Mass Torts

Similarity: If all individuals have suffered similarly and the legal questions are uniform across the board, a class action might be more appropriate. However, if damages vary significantly, mass torts provide the flexibility to address these individual nuances.

Plaintiff Control: Class actions surrender much of the control to the class representatives and counsel, whereas, in mass torts, individual plaintiffs keep more control over their cases.

Fund Distribution: While class actions pool the recovery into a single fund, mass torts allow for individualized damage assessments, which might lead to higher recoveries for some plaintiffs.

Costs: Class actions can also be more efficient when dealing with uniform claims, consolidating resources, and reducing redundant efforts. Mass torts, while offering individualized attention, might include higher cumulative costs and longer durations.

When faced with harm caused by a common defendant or event, understanding the distinctions between class actions and mass torts is important. The choice will significantly impact the course of litigation, potential recoveries, and the overall experience of seeking justice.