Class Action Versus Mass Tort Lawsuits: Part 1
If you watch more than your fair share of late night television, you have
seen the “lawyer ads” looking for clients who were injured
by a prescription drug or medical device and may thus be eligible for
“cash awards.” Many viewers mistakenly believe that such ads
are intended to recruit potential plaintiffs for a class action lawsuit
when, in fact, many such ads are designed to attract clients who will
become plaintiffs in a special type of personal injury case known as a
mass tort lawsuit.
Since the distinction between class action and mass tort lawsuits can be
difficult for someone without a background in law, in this series of posts
our personal injury lawyer will provide a summary of the similarities
and differences in these lawsuits as well as a discussion of which type
of lawsuit is best for a given type of injury.
Similarities in Class Action and Mass Tort Lawsuits
Class action and mass tort lawsuits have certain features in common. In
general, both types of lawsuits may arise if:
- There is a large group of plaintiffs alleging that they suffered the same
degree of injury.
- The plaintiffs are widely separated by distance and thus unable to appear
at a central location to participate in a trial.
- There is a single defendant or, at most, a small group of defendants who
are alleged to have caused that injury.
- There is a single attorney or law firm representing the original or “lead”
plaintiff who, in turn, is “standing in” for all other plaintiffs.
Both class action and mass tort lawsuits ask the court to consolidate many
potential lawsuits into a single lawsuit where the verdict is binding
on all involved parties.
It is also worth noting that practically all class actions are filed in
a federal court because federal courts claim original jurisdiction in
all cases where there is a diversity of citizenship or if the damages
sought exceeds $5 million. In a mass tort, the initial phases such as
liability and issues of fact are decided in federal court although individual
lawsuits can be heard in either a federal or a state court.
Differences in Class Action and Mass Tort Lawsuits
In a class action, there is a single plaintiff and their lawyers who serve
as representatives for all members of the injured party class. These “original”
or “lead” participants will usually receive a greater proportion
of the lawsuit’s settlement while the class members who opted in
will receive very little in the way of cash or discounts from the defendant.
This is usually seen as fair because the lead plaintiff and lead counsel
will have incurred most of the expenses (arranging for expert testimony,
witnesses, and legal research leading up to trial.
As will be better explained in another post, in a mass tort the issue of
liability is settled before trial and subsequent legal actions are to
decide the amount of damages that will be awarded to individual plaintiffs.
Thus, the awards to individual plaintiffs are usually substantially larger
than awards in class actions.
Should I “sign on” to a class action lawsuit or “opt
When a lawsuit is certified as a class action the court will order the
defendants to produce as complete as list as possible of all potential
plaintiffs. Most plaintiff’s attorneys will supplement this list
with clients that are recruited via advertisements in newspapers, on television,
and the Internet. Regardless of how they are recruited, all potential
plaintiffs will be given the opportunity to “opt out” (decline
to participate) of the class action rather than become a party to the
lawsuit. Since membership in the plaintiff class is automatic except in
rare cases, a party must specify that they do not wish to become a party
to the class action by signing the documents that they received notifying
them of the lawsuit.
If a party signs on to the class action, they will waive their right to
pursue their own lawsuit as a single plaintiff later and will be required
to accept any settlement that is reached by the lead plaintiff. In most
cases, the settlement that is disbursed to parties other than the lead
plaintiff is very small and is often in the form of coupons or other credits
that can only be redeemed by the defendant for discounts on future purchases
from the defendant. Since the potential award is so small, most parties
elect to ignore the sign on option unless they and their accident lawyer
believe that an individual lawsuit would, most likely, fail.
Wrapping Up Part 1
Both class action and multiple tort lawsuits are used when there are many
potential plaintiffs that may file lawsuits seeking damages from a single
defendant. By merging many individual lawsuits into a single class action
lawsuit, the courts assure the plaintiffs of a fair hearing and an equitable
A major criticism of a class action is that a substantial portion of any
award to the class will go to the lead plaintiff and plaintiff’s
counsel and the remaining portion of that settlement, however small, will
be distributed to the class members.
On the other hand, a mass tort lawsuit is decided in two phases with the
first being a hearing to determine responsibility and liability and a
second, individual, lawsuit to determine the amount of damages owed to
In our next post, our personal injury lawyer will discuss mass tort lawsuits
and how these actions are more favorable to individual plaintiffs.