United States
Answer ... The US Supreme Court has explained that in order to establish standing in federal courts, a plaintiff must show that:
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he or she has suffered an ‘injury in fact’ that is:
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- concrete;
- particularised; and
- actual or imminent;
- the injury was likely caused by the defendant; and
- the injury would likely be redressed by judicial relief.
If “the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve”.
Certain harms, according to the Supreme Court, readily qualify as concrete injuries. The most obvious are traditional tangible harms, such as physical harms and monetary harms. If a defendant has caused physical or monetary injury to the plaintiff, the plaintiff has suffered a concrete ‘injury in fact’. Various intangible harms can also be concrete, such as the disclosure of private information. The question of standing to assert an intangible harm is now a hotly litigated issue, especially given the rise of data breach class actions over the last few years.
In addition, Congress may impose a statutory prohibition or obligation on a defendant; and may grant a plaintiff a cause of action to sue over the defendant’s violation of that statutory prohibition or obligation. Importantly, however, the Supreme Court has rejected the proposition that “a plaintiff automatically satisfies the ‘injury-in-fact’ requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right”. “Article III standing requires a concrete injury even in the context of a statutory violation.”
United States
Answer ... Federal courts and most state courts recognise the ability of representative bodies to assert claims on behalf of their members, though such class actions are not common. ‘Associational standing’ permits an entity to sue over injuries by its members even when the entity itself alleges no injury. As one jurisdiction has held, to satisfy the test for associational standing, an association must show that:
- its members would otherwise have standing to sue in their own right;
- the interests that the suit seeks to protect are germane to the organisation’s purpose; and
- neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.
United States
Answer ... The answer here depends on whether ‘outside the jurisdiction’ refers to an individual who is a resident or citizen of a foreign country. Though there is nothing in the text of Rule 23 that prohibits a foreign citizen from being a member of a class, as a practical matter, a class action lawsuit in the United States that purports to include foreign citizens will not likely succeed in achieving class certification.
Certainly, an individual who is a citizen or resident of one state (eg, New Jersey) may be a class member in a class action lawsuit instituted in another state (eg, New York). By way of further example, two named plaintiffs could file a class action complaint in federal court in Massachusetts to sue the seller of a dietary supplement product based on alleged false label claims. One named plaintiff is a citizen of Massachusetts and brings claims on behalf of a class of citizens of Massachusetts who purchased the product. The second named plaintiff may be a citizen of Illinois and assert claims on behalf of all citizens of Illinois who purchased the product. There is no restriction per se to being a party outside the jurisdiction in this sense. However, cases that propose multi-state classes or nationwide classes will likely be more difficult to achieve class action status because the complexity of involving multiple states’ laws may make a class action unmanageable.
United States
Answer ... Public and private companies, governmental entities and individuals can all be named as class action defendants. Generally speaking, if a company is doing business in a particular state or states, or if its products are sent to persons or entities in those states, that business should reasonably expect that it could be sued in those states given its business activities or ‘contacts’ within that jurisdiction.
A court’s power to resolve disputes requires both:
- personal jurisdiction over the parties; and
- subject-matter jurisdiction over the type of claim.
Personal jurisdiction centres on the protection of a defendant’s constitutional right to due process. The Supreme Court has previously rejected attempts to allow Rule 23 to alter or abridge that constitutional right.
For the exercise of personal jurisdiction to satisfy the due process clause in the Fourteenth Amendment of the US Constitution, defendants must have ‘minimum contacts’ with the forum state. Personal jurisdiction can be general or specific. Courts have ‘general’ jurisdiction over defendants whose in-state activities render them ‘at home’ in the forum. Assuming that subject-matter jurisdiction is also proper, general jurisdiction allows a court to hear all claims against a defendant – notwithstanding the location of the defendant’s conduct and the connection of the plaintiffs’ injuries thereto. If general jurisdiction is lacking, a court may still exercise ‘specific’ jurisdiction if:
- the defendant “purposefully avails” itself of the benefits of doing business in the forum state; and
- the plaintiffs’ injuries “arise out of or relate to” the defendant’s in-state conduct.
Unlike general jurisdiction, courts must limit their exercise of specific jurisdiction to claims with a connection to activities in the forum state (ie, the state in which the suit is brought).
United States
Answer ... In certain types of class actions, a member of the class may decide to participate or not participate in a certified class action or negotiated class settlement. Generally, class actions seeking certification of a class for money damages, referred to as Rule 23(b)(3) classes, will be ‘opt-out’ classes, meaning that a class member must opt out in order to be excluded from the settlement. A class member may choose to opt out of a Rule 23(b)(3) damages class action in order to preserve the right to assert his or her claims on an individual basis in a separate lawsuit, presumably to attempt a greater recovery. However, electing to do so may force that person to incur greater litigation costs on an individual basis, rather than spreading those costs among class members.
In damages class actions, class notice must be issued to class members, which is subject to court approval and supervision. The class notice alerts class members:
- of the existence of the class action lawsuit, the basic facts and contentions alleged in the action;
- that there may be a class action settlement;
- that the individual receiving notice may be a member of the class;
- that the individual may elect to opt out of the settlement; and
- that if the individual does not exercise his or her right to opt out, he or she will be bound by the terms of the class settlement.
Class actions seeking certification of a class for injunctive relief only – referred to as ‘Rule 23(b)(2) classes’ – may not opt out, as the relief is considered mandatory.
In addition to the right to opt out of a damages class action, members of any class action –even ‘mandatory’ actions under Rule 23(b)(1) or 23(b)(2) – have the option to object to a proposed settlement. In theory, the right to object to a settlement provides a check on the reasonableness of a class settlement: the court can look to the views of class members as a counterweight to the views of counsel and the representative parties, who may be biased in favour of approval.
An ‘opt-in’ procedure is used for ‘collective actions’. Collective actions, not technically class actions, are employment-related actions brought under the Fair Labor Standards Act (FLSA) on behalf of an employee and other similarly situated current or former employees.
The FLSA requires individual employees to affirmatively consent in writing to becoming a party to a collective action; one who does not consent to join the collective action neither benefits from, nor is bound by, the judgment in the lawsuit.