• Toxic Exposure 
• Auto Defects
• Financial Fraud
• Data Breach Lawsuits
• Deceptive Advertising
• Unfair Debt Collection
• TCPA Robocall Lawsuits
• Gun Liability 
• Roundup Toxic Exposure
• Unpaid Wage Lawsuits
• CBD Oil Litigation
• Deceptive Banking & Unauthorized Escrow

A Class Action lawsuit involves a large group of people that have experienced extremely similar outcomes. Because the cases must meet the strict guidelines of the Class Action, they are presented under one plaintiff. 

In a Mass Tort, individual experiences may vary. Even though a large number of people have been affected, the variations from case to case are more broad than a class action. In a Mass Tort each plaintiff is represented independently, though in most instances there is still a set of general criteria to meet.

Medical Device Litigation, Pharmaceutical Litigation, and other toxic tort litigation is not appropriate for Class Action treatment. Specifically, cases that involve injuries to the parties contain too many individual facts in terms of the science and causation to find that the common issues predominate over the individual facts.

On the other hand, complex litigation that impacts many individuals and contain common questions of fact related to the conduct of the defendant are often appropriate for mass tort consolidation. Mass Tort consolidation in federal multi-district litigation or a State mass tort docket, allows the parties to utilize the efficiency of class action litigation through the discovery process but still allows the parties to litigate their cases individually on the critical issues of whether the conduct caused the alleged injuries.

While our human bodies are very similar, each individual’s body may have reacted differently to the toxic exposure that makes Class Action treatment inappropriate in most personal injury lawsuits.

Some toxic tort areas that may be beneficial for class action lawsuits can involve environmental contamination. When companies are negligent and contaminate large swaths of private property. Public nuisance lawsuits have been filed against negligent agricultural operations of fracking companies

The Initial Requirements for Class Certification are Outlined in Civil Rule of Procedure 23 (a). 

There are several steps in analyzing whether a case is appropriate for class treatment.  In order for a case to be certified as a Class Action, the Court must first determine that the case is appropriate for class action treatment under Rule 23 (a) . There are different elements depending on whether the case is seeking monetary or injunctive relief. In general, the Court must find the following elements are satisfied:

• Numerosity: “Joinder Impractical” :  The Rule states that “it is so numerous that joinder of all members is impractical”.   This means that the proposed class must be so numerous that other methods of aggregating the claims would not work due to legal or administrative barriers that would overly complicate the litigation.  Most Courts have allowed Class Cases to meet this threshold with 40 or more putative class members.
  • Other than pure numbers, Courts have also considered these additional factors:
    • Geographic Diversity 
      • Where class members are close in location, joinder may be more practical. 
    • Evidence of the Number of Claimants
      • Estimates of the number of claimants is sufficient.  It is not required that every class member have a valid claim. 
    • Ability to Identify Class Members
      • If small class and can easily identify each class member, joinder may be more practical. 
    • Size of Potential Individual Recoveries
      • Larger recoveries for class members may weigh in favor of joinder, while smaller recoveries weighs in favor of joinder being impractical. 
• Commonality: Common Questions of Law or Fact – “One Stroke”: The facts and/or legal questions in the dispute must be common to all class members.   This does not mean all facts or issues must be identical, but the answer of truth or falsity with respect to the common contention of facts and law can be determined with “on stroke”. Courts find this element is met where: 
  • Common legal rules unite all class members (e.g., TCPA);
  • The class members all suffered the same type of injury (e.g., all received un-consented text messages);
  • Common factual issues all to all class members (e.g., how the data was breached for the class)
• Typicality: “As goes the Claim of the Named Plaintiff, so go the Claims of the Class”:  In this element, the Court is looking for differences in the claims of the named plaintiff and the class. The named Plaintiff in the case must be representative of the class claims. The claim cannot be too individualized.  In other words, both the named plaintiff and the class members claims must arise must similar conduct and implicate the same legal theories.  If the Plaintiff’s individual case involves issues of fact or law unique to that Plaintiff and are irrelevant to the ultimate issue, class certification may be denied by the Court.  Questions to consider under this factor include: 
  • How does the individuals claim compare to the rest of the class?
  • By proving her claim, does the proposed class rep also prove the class claims ?
  • Are there unique defenses that apply to the class rep?
  • Is there a wide variation in the factual situations ? (e.g., uniquely harmed) 
  • Are there different forms of relief sought ? (e.g., if Plaintiff is only qualified for a particular type of relief)
• Plaintiff/Counsel Adequately Represents the Class: The Court must find that the Plaintiff and Plaintiff’s Counsel are competent and will protect the class’ interests. The Court will evaluate the following: 
  • Any conflict with the prosecution of the claims that could benefit the class rep while harming a claim for the class; 
  • Any conflict where prosecuting claims would have inconsistent benefit or harm across the class;
  • Any unique defenses to the class rep that are not applicable to the class;
  • Whether the class rep has sufficient knowledge of the claims; 
  • Whether the class rep is independent or has a relationship with counsel that could impact their independence;
  • The personal credibility 
  • Whether the remedies sought are available to all class members

There is currently a Circuit Split on this “hot topic” in class action litigation.  Recently, the 11th Circuit, in Cherry v. Dometic Corp. 986 F.3d 1296 (11th Cir., 2021) held that “administrative feasibility was not a requirement for class certification.” This decision fell in line with the 2nd, 6th, 7th, 8th, and 9th Circuits that have all found that Rule 23 does not include administrative feasibility as  precondition to class certification.  This holding is in opposition to the 1st,  3rd, and 4th Circuits.   

This holding does not not mean that there is no requirement to show the class ascertainable and manageable,  which is shown if the class is adequately defined such that its membership is capable of determination.  If it turns out that the class is unmanageable, then the Court has discretion to decertify the class.  

Rule 23(B)(1) Class Actions: Incompatible Rulings & Limited Fund Class Actions 

Civil Rule 23 (B)(1) addresses cases where multiple suits would create a risk of inconsistent rulings or establish incompatible standards of conduct where individual actions would as a practical matter decide the interests of absent class members. 

Rule 23(B)(1) provides that a class action can be maintained if: 

• (A) Prosecuting separate actions would create a risk of inconsistent adjudications or incompatible standards; 
• (B) Adjudications with individual class members 

This form of class action is for the benefit of the defendants in that it prevents them from being required by different courts to act inconsistently toward other identically situated class members. In these situations, a defendant may violate one court order while trying to comply with a different court order.  This type of certification is usually reserved for class actions seeking injunctive relief.  

Examples of 23(B)(1) Classes Include: 

• Determination of land or water rights. Downstream owners may be granted different rights than the litigant if the issue were presented to multiple courts; 
•  ERISA Class Actions where incompatible standards of conduct could result for different class members. 
• “Limited Fund Classes” (23(B)(1)(B):  Any payment of damages to class members would necessarily deprive another class member of full relief.  When either party can show that the defendant lacks sufficient funds to satisfy the identical claims of all potential class members, making it unfair to later claimants that the first few litigants to reach a favorable final judgment will exhaust the limited fund, the Court may consider certification under the Limited Fund Rule.  

NO NOTICE IS REQUIRED. NO OPT OUT IS ALLOWED.  COURTS ARE THEREFORE RELUCTANT TO CERTIFY CLASSES UNDER 23(b)(1) 

Rule 23(B) Injunction Classes

Rule 23(B)(2) was originally created for Civil Rights Cases.  The Rule allows the Court to address cases where the Defendant has acted or refused to act in a way that applies to the class as a whole.  The relief sought must be “primarily injunctive” and not monetary.  Claims for unjust enrichment or “back pay” are not appropriate for treatment under Rule 23(B)(2).  

Factors Considered for Rule 23(B) Certification

1. Primary Relief Sought
2. Standing
3. If any Monetary Relief, whether it is mechanical or individualized 
4. Cohesiveness
5. Necessity:

Examples of Types of Cases Certifiable Under Rule 23(B): 

1. Civil Rights Cases
2. Antitrust (Price Fixing)
3. Medical Monitoring 
4. 42 USC 1981 -Discrimination 
5. Employment Discrimination 

NO NOTICE or OPT OUT REQUIRED 

Rule 23 (B)(3): Damages Class 

Rule 23(B)(3) applies when the primary form of relief is monetary damages.  There are some additional statutory elements to certify a class under Rule 23(B)(3).  The Court must weigh both the “predominance” and “superiority”  factor outlined in the Rule: 

• Predominance of Common Issues: Whether the elements of the cause of action/ defenses  require common or individualized evidentiary proof
  • Factual Predominance: The individual facts should not “swamp the common issues” 
    • Examples of Common Factual Issues: 
      • Admission of Negligence
      • Use of the same company documents 
      • Common Methodology for Damages
      • Uniform Objections
    • Examples of Individual Predominance: 
      • Medical Causation
      • Individualized Damages without common methodology or connection to same level of conduct
      • Alleged Defect is different among class members 
      • Reliance 
      • Affirmative Defenses
        • Assumption of Risk, Comparative Negligence, SOL 

• • Legal Predominance: “All litigants are governed by the same rules”
    • Examples of Legal Predominance
      • Single State Classes
      • Multi State Classes where state law does not conflict (rare)
      • Multi State Classes with choice of Law Selects one jurisdiction (Defendants Home State)
      • Multi State Class under Federal Law 
    • Examples of Individual Legal Predominance: 
      • Multi State Classes where state laws conflict 
      • Affirmative Defenses
•  
  • “Superiority”: The Court must find that class treatment is a fairer and more efficient approach than other options. The court wants to see there are “efficiencies in aggregation of claims”. There are four separate inquiries the court must make: 
    • 1. Individual Interest:  Class members interest in controlling separate actions. Factors that impact the analysis include:
      • The number of out out class members;
      • Cost of pursuing an individual claims
      • Amount of recovery in the class v individual claim
      • Cost of litigation for individual claim
    • 2. Other Litigation: Extent of other litigation on the same or similar issues (absence of any other litigation weighs in favor of class treatment
    • Forum: Desirability of controlling litigation in one forum. 
      • Benefits of consolidation to focus resources on common issues
    • 4. Manageability: Any difficulty in managing the class 
      • Tried to Judge or Jury
      • Logistical issues with laws of different states
      • Format of trial 
    • 5. Viable Alternative
      • Must be adjudication that class members can make use of.  
• Examples of Superior Cases: 
  • Small value claims 
  • No other litigation 
  • No government regulation
  • Trial is streamlined
  • Efficient litigation of issues in one forum 
• Examples of Cases without Superiority 
  • Strict Liability Cases with large payouts
  • Government Regulation would be superior
  • Presence of other litigation 
  •  Statues that provide for large damages or attorney fees

NOTICE & OPT OUT IS REQUIRED 

Our Firm will help you find the answers.  The Lyon Firm has the experience, resources and dedication to take on difficult and emotional cases and help our class action clients obtain the justice for the wrong they have suffered. 

Joe Lyon is an experienced Cincinnati Class Action Lawyer with 17 years of experience and success representing individuals and plaintiffs in all fifty states, and in a variety of complex civil litigation matters. Class Action lawsuits can be complex and require industry experts to determine the root cause of an accident or injury. Mr. Lyon has worked with experts nationwide to assist individuals understand why an injury occurred and what can be done to improve their lives in the future. Some cases may go to a jury trial, though many others can be settled out of court.

Resources/Dedication: Mr. Lyon has worked with experts in the fields of accident reconstruction, biomechanics, epidemiology, metallurgy, pharmacology, toxicology, human factors, workplace safety, life care planning, economics, and virtually every medical discipline in successfully representing Plaintiffs across numerous areas of law. The Lyon Firm is dedicated to building the strongest class action cases possible for clients and their critical interests.

Each case is unique, though The Lyon Firm fights to maximize each settlement for our clients. 

Some cases are resolved in a matter of months while others can be litigated for years. Some companies wish to settle quickly to minimize a PR backlash while others fight until the end, taking each case to trial.