How Does a Lawsuit Become a Class Action?

By Aditi Mukherji, JD on March 15, 2014 | Last updated on March 21, 2019

From claims of dangerous pharmaceutical drugs to allegations of falsely advertised products, we often hear about class action lawsuits in the news.

A class action lawsuit is one that is brought against a defendant by one individual, or a few individuals, on behalf of a larger class of people who suffered the same or similar injuries from the defendant's product or action.

But before a lawsuit becomes a class action, there are legal procedures that must be followed. Here is a general overview:

Class Certification

You cannot simply "file" a class action lawsuit. A lawsuit becomes a class action through a process called class certification.

To obtain certification, the court must find that:

  • It is impractical for the plaintiffs to sue individually;
  • Proposed class members share a common complaint;
  • The named plaintiffs -- called the class representatives -- have the same claims and defenses as the others in the class; and
  • The class action lawyer and representative(s) will fairly represent the class.

For efficiency's sake, claims needs to raise common legal and factual issues. For example, a court might deny certification if people have suffered different kinds of side effects from a defective drug. Differences in injuries could potentially require different types of evidence for different class members.

Opt In or Out?

In most cases, once a lawsuit is certified as a class action, the judge will order notice to be given to all potential class members.

Those who are notified will usually have the opportunity to join in the action -- called "opting in" -- which means the outcome of the lawsuit will be binding on them. Those notified may also be given the opportunity not to participate as a member of the class -- that is, to "opt out." You may want to opt out, for example, if you want to bring your own lawsuit.

However, in some cases, all victims similarly situated will automatically be deemed class members, and will have no opportunity to opt out.

Because each class action is different, and because the decision to opt in or out may have binding consequences, you may want to consult an experienced class action attorney about your legal rights -- especially if you believe you have a lot of money at stake.

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