14. Class Actions

• Pages: 285-306
• Author: Bethany G. Lukitsch,Kamran B. Ahmadian

14

Class Actions

Bethany G. Lukitsch and Kamran B. Ahmadian1

Class actions often come to mind when a large number of plain-

tiffs claim to have suffered a similar injury by the same defen-

dant(s). Although an infectious outbreak may create a large

number of plaintiffs, the very nature of the infectious outbreak

injuries make these cases difcult to t into current standards

for class- wide treatment. This chapter summarizes and analyzes

the various types of class actions that are available under the

Federal Rules of Civil Procedure and most state counterparts in

order to guide the analysis for any litigator seeking or defending

against a potential outbreak- related class action.

Class actions allow representative- plaintiffs (also called named

plaintiffs or class representatives) to litigate claims on behalf of

themselves and members of the class who are not actually before the

court (also called unnamed or absent plaintiffs). The primary pur-

poses of the class action procedure are to promote efciency and

economy of litigation.2 Although seemingly ubiquitous in today’s

1. Bethany Lukitsch is a litigation partner and co- chair of the class action practice at

McGuireWoods LLP. Kamran Ahmadian is a litigator at McGuireWoods LLP.

2. See Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 349 (1983).

285

Tarry_Ch14.indd 285 27/01/21 11:09 AM

courtrooms, class actions are intended to be “an exception to the

usual rule that litigation is conducted by and on behalf of the individ-

ual named parties only.”3 To understand how class actions may arise

in the outbreak litigation context, it is important to rst understand

the history of class action litigation, the special requirements class

action plaintiffs must establish, and the several types of class actions

that exist. The second part of this chapter focuses on the application

of these factors.

Class Action History and Basics

Representative suits have been recognized in various forms since the

earliest days of English law, stretching back to the period following

the Norman conquest of England.4 Class actions in the United States

evolved from trial courts’ equitable powers to avoid multiple suits in

which numerous individuals sued a defendant for a single legal griev-

ance.5 In 1842, the United States Supreme Court promulgated Equity

Rule 48, which ofcially recognized representative suits in which the

parties were too numerous to be conveniently brought before the

court, but refused to bind absent parties to any resulting judgments.6

In 1938, in an effort to provide more uniformity in federal courts cases,

the United States Congress and the Supreme Court enacted the Fed-

eral Rules of Civil Procedure, including Rule 23, which governs class

action litigation.7 In 1966, the federal class action mechanism gained

much of its current structure in an innovative revision of Rule 23,

which permitted a small number of plaintiffs to represent and legally

bindan entire class, including absent parties, through a single lawsuit.8

In 2018, Rule 23 was signicantly amended to standardize prac-

tices, including class settlements, which previously were being han-

dled on a court- by- court basis. Most notably, Rule 23(e)(2) now

3. See Wal- Mart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (quoting Califano v.

Yamasaki,442 U.S. 682, 700–701 (1979)).

4. See S C. Y, F M G L   M

C A (1987).

5. See J. Story, Equity Pleadings § 97 (3d Ed. 1944); Note, Action Under the Codes

Against Representative Defendants, 36 H. L. R. 89 (1922).

6. See Smith v. Swormstedt, 57 U.S. 288, 303 (1853).

7. See F. R. C. P. 23.

8. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997).

286 Infectious Disease Litigation

Tarry_Ch14.indd 286 27/01/21 11:09 AM