Part 2. Class actions

Vocabulary

class action	коллективный иск, дело о защите прав и законных интересов группы лиц
tort claim	иск из деликта
incur costs	нести расходы; нести издержки
miscalculate the interest rate	неправильно рассчитывать процентную ставку
price-fixing	искусственное фиксирование (завышенных) цен
misrepresent interest rates	предоставить ложные сведения о процентных ставках
sue for a remedy	подавать иск с целью получить средство правовой защиты
give notice	уведомить, официально извещать
evaluation	оценка; оценивание
seize on class actions	зд. заполучить коллективные иски

Exercise 11. Before reading the text answer the questions.

1. What can happen if there are many parties to a lawsuit?

2. How are class action cases dealt with in your jurisdiction?

Read the Text.

Class actions

(abridged from “Law 101. Everything you need to know about

the American Legal System” by Jay M. Feinman)

Sometimes there are so many parties – usually on the plaintiff’s side – involved in a single lawsuit that the court has to treat them as a group rather than individually. This type of suit is known as a class action because the individual parties represent many members of a class of people like them who do not actually participate in the conduct of the litigation.

The most spectacular of class actions involves mass torts – tort claims by many people arising out of the same event or exposure to the same risk. Fourteen thousand schools around the country that incurred costs in testing for and removing asbestos insulations were represented in a class action against asbestos manufactures. An explosion at a Shell Oil refinery resulted in a class action involving 18,000 injured plaintiffs. In the Agent Orange litigation, veterans of the Vietnam War and their families sued the manufactures of Agent Orange, a herbicide used to destroy enemy crops and jungle cover that was alleged to cause a wide range of illnesses in the soldiers exposed to it; the class of plaintiffs eventually included nearly 2.5 million veterans and family members.

By allowing plaintiffs to bring class actions, courts attempt to balance the conflicting goals of civil procedure. The ultimate goal, of course, is to carry out the policies and values of the substantive rules of law. When many individual plaintiffs each have relatively small claims, this can be done only through a class action. An airline passenger may pay a few dollars more for a plane ticket because the airlines illegally inflated the price of tickets, or a credit card holder may pay a few cents more when a bank miscalculates the interest rate. Because of a small size of the claims and the expense of litigation, it isn’t worthwhile for anyone of these consumers to sue the airlines or the bank. The collective loss of all passengers or all credit card users, though, is very large. By bringing one suit for all of the consumers, a class action makes sure that the laws against price-fixing or misrepresenting interest rates are carried out and the people who are injured by the wrongful conduct are compensated.

Aggregating small claims in a class action also serves the value of operating the litigation system efficiently. A class action involves at least one issue of law or fact that is common to many claims, such as whether a gas tank was defective or the airlines were price-fixing. Examining and deciding that issue once is more efficient than doing it again and again in different cases.

Class actions also implicate fairness concerns. Class actions are designed to remove the unfairness that would result from having the same issue adjudicated with different outcomes in different cases. The Audi’s gas tank is either defective or it is not; something would be odd about having a hundred cases tried in which fifty courts found the gas tank to be defective and fifty did not. But class actions present unique fairness concerns of their own. Members of the class who do not actively participate in the litigation will be bound by its result; a victim of Agent Orange, for instance, is able to recover only what was provided for in the large class action suit and cannot later sue for a larger or different remedy. So courts have to be careful about giving adequate notice of what is happening to the absent class members, allowing them the opportunity to opt out of the class action, and making sure that class representatives and their lawyers provide fair representation for the interests of the absent members.

The class action is brought in the name of class representatives – a few named parties who represent the interests of all the members of the class. But being a member of the class is not enough to be a good representative. Because the other members of the class won’t be present in the court room and won’t have direct input into the conduct of the litigation, fairness requires the court to investigate whether the representatives will fairly and adequately protect the interests of the other members of the class.

As a practical matter, the requirement that the named parties adequately represent the absent parties requires an evaluation of their lawyers as well. Many class actions are put together and managed by the lawyers, not the named parties. Well-known personal injury lawyers usually take the lead in mass tort litigation, for example, whether they are approached by individual plaintiffs, brought in by less experienced lawyers, or recruit the clients themselves. In very large class actions, the lawyers, under the supervision of the court, designate the lead counsel on each side and put together committees of lawyers to take charge of the conduct of the litigation for all the parties.

Once a class action is certified the court engages in unusual procedures to make sure that the interests of the class members are protected. In most class actions, the representatives are required to give notice to members of the class of the action and of their right to put out – to choose not to be members of the class and to conduct their own litigation. The members also might have to be notified of any proposed settlement and given an opportunity to comment on its fairness before the judge approves it.

The law on class actions is very complicated and hotly disputed. Some courts seize on class actions as an effective means of disposing of large numbers of claims in a relatively expeditious manner; even though a class action can be complicated and cumbersome, it is still better than thousands or tens of thousands of individual cases. Other courts are more reluctant to use the device in very large cases, believing that the farther away one gets from the traditional paradigm of adjudication – a well-defined dispute between two parties – the less equipped a court is to deal with the problem.

Exercise 12. Answer the questions.

1. What features do class actions possess?

2. What purpose do courts pursue by allowing plaintiffs to bring class actions?

3. What requirements must courts fulfill in class actions?

4. Who can act as a representative in a class action and what duties do representatives have?

5. Do all courts treat class actions in the same way? Why?

Exercise 13. Find these expressions in the text and translate them into Russian. Use English expressions in sentences of your own.

designate the lead counsel; to participate in the conduct of the litigation; to balance the conflicting goals of civil procedure; to arise out of the same event or exposure to the same risk; injured by the wrongful conduct; to treat as a group rather than individually; to implicate fairness concerns; to opt out of the class action; under the supervision of the court

Exercise 14. Find English equivalents to these Russian phrases in the text. Use English expressions in sentences of your own.

неохотно использовать; избавляться от большого числа исков очень быстро; обеспечивать честное представительство интересов; объединять иски на небольшие суммы в коллективный иск; взять на себя ответственность за проведение судебного разбирательства

Exercise 15. Write a plan of the text. Comment on each point of your plan in not more than one or two sentences. Summarize the text using these speech links:

The text analyses/considers; provides useful information regarding;

The text is devoted to the problem (of);

The text focuses/concentrates on the problem (of);

The information covered in the text includes…;

The text highlights the following issues: …;

The text can be broken down into the following logical parts:

As far as … is concerned, …;

First(ly), …; Second(ly), …; Third(ly); Next/Furthermore/Then, …; Finally, …; In conclusion it should be pointed out that …; To conclude, ….

DISCUSSION

Court proceedings involve a serious commitment in terms of time and money. But there is an opinion that they can also, by their adversarial nature, permanently alter relationships between people. Litigation tends to bring out the worst in people, so friends, neighbors, spouses and people in business relations should consider whether it will be worth the price that is likely to be paid in terms of loss of goodwill. What is your attitude to litigation? What arguments for and against resolving disputes in court do you have? Discuss the issues with you partner first, and then share your opinion with the group mates.