Class Action Warfare
What to do when you’re part of a group of injured parties
on August 16, 2017
Updated on April 21, 2022
You’re watching TV or surfing the internet when an ad appears, urging consumers who have used a certain product to call a law firm’s 800-number. Or, more likely, you receive a notice in the mail.
The letter in the mail is probably about a class action, while the TV ad is most likely for multidistrict litigation. “It’s confusing,” says Philip A. Gold, who handles MDL cases at Gold & Gold in Miami, “because the processes both deal with numerous claims arising out of a single incident. Both are intended to right a wrong.”
In an MDL, each injured party has a distinct claim. If the case as a whole wins at federal court, the plaintiffs receive damages based on their individual levels of harm. In a class action, all the claims are wrapped into one case, and any damages are spread among the class members—with the exception that those who brought the case to the attorneys in the first place may be awarded higher damages.
In class actions, attorneys are required to alert potential claimants—hence the notice in the mail. This gives people a chance to opt out of the class; otherwise they’re automatically included and will be unable to pursue a claim on their own.
So it’s important to pay attention to the deadline on the notice. “If you have a valid claim that you could bring independently, and you don’t opt out, then you’re locked in the class action,” warns Deborah J. Gander with Colson Hicks Eidson in Miami. “You’d still recover a share of damages as part of the class, but it might not be as much as an individual plaintiff.”
A lawyer can help you find out how your injuries compare to those sustained by others, and whether it’s best to file your own suit or be part of a class or MDL. “Class actions are efficient when a huge number of individuals have real damages,” Gander says, “but when individuals themselves have huge damages, you’re always better off with your own case.”
Make sure you pick an attorney with proven success, adds David A. Jagolinzer, who practices personal injury law at the Ferraro Law Firm in Miami. “Do not blindly pick a lawyer. Ask them how many cases they’ve tried to verdict. Have they been to trial ever? How many times? Have they been successful?”
Ask for as many details as possible about a pending class action, suggests Miami attorney Robert L. Parks, of the Law Offices of Robert L. Parks. “Don’t just agree to go forward with it.”
He recommends asking about the likelihood of success, the amount being sought and the plan for distribution. In smaller claims, consumers may receive a replacement part or a coupon for a discount on a future purchase.
“Make sure you understand,” Parks says, “what you might get and what you should do if you’re not satisfied.” If you are a member of the group, you’ll be represented by the attorneys appointed by the court as lead counsel. It’s important to stay informed as the lawsuit progresses, she adds. Find out which lawyer will keep you informed.
But don’t expect to hear from that lawyer often if you’re among a class of hundreds or thousands, Gander warns. “You’ll get updates as things progress,” she says, but for the most part, at least in the early stages, “updates will be few and far between.”
Whether you file a suit through your own attorney or join the class action or MDL, the attorneys typically work on contingency, with attorney fees as a percentage of the outcome.
One thing to keep in mind: Whether you’re part of a class of thousands, an MDL of a few, or have your own individual case, don’t look for a quick resolution. “It’s certainly possible for a case to be resolved relatively quickly, but it’s dependent on many factors,” Gold says. “You should go in with the expectation this could take several years.”
For more information on this area of law, see our overview of class action and mass torts.