While a class action lawsuit can (and usually does) involve hundreds or even thousands of individuals, it most often begins with a single individual – known as the “lead plaintiff” or class representative. This person typically (but not necessarily) starts the entire process by realizing that a cause of action might exist and then contacting a lawyer.
The class representatives have certain duties they must honor in representing the class members. These responsibilities are discussed below.
Qualifying as a Class Representative
While anyone who has suffered a loss that affects a large number of others can initiate a legal action, a class representative must be formally appointed by the court. Under the Federal Rules of Civil Procedure, the lead plaintiff must have “claims or defenses...typical of the claims or defenses of the class”, and must be able to “fairly and adequately protect the interests of the class”.
In order to protect the interests of all class members, the class representative should have similar interests to those of the class members; such as having suffered the same type of losses under similar circumstances.
The class representative should not have a conflict of interest with the other class members. For example:
- a class representative should not have any personal relationship or family ties to counsel or an officer of the court;
- a class representative should not be involved in litigation against another member of the class;
- the class representative's counsel should not be working on his/her behalf in another capacity (such as managing investments).
Duties of Class Representatives
In a class action, the named class representatives represent the interests of all members of the class in an effort to obtain appropriate relief and recover damages for the class members.
A class representative must adequately and fairly represent the class members. This means that a class representative must always consider the interests of the class member just as he/she would consider his/her own interests.
A class representative is not required to be particularly sophisticated or knowledgeable with respect to the subject of the lawsuit. However, he/she should remain interested in the progress of the lawsuit and must make every effort to provide his/her lawyer and the court with all relevant facts of which he/she is aware.
A class representative participates actively in the lawsuit, such as by reading the complaint and understanding it to the best of his/her ability, cooperating fully in any discovery that is permitted of the class representative, such as by testifying at deposition and trial, answering written interrogatories, producing documents, and by keeping generally aware of the status and progress of the lawsuit. A class representative’s lawyer will keep the class representative informed of major events during the lawsuit. The class representative should confer with his/her lawyer any time he/she feels it is appropriate to do so.
A class representative shall keep his/her lawyers generally advised of the class representative’s place of residence and telephone number, and shall provide his/her lawyers with any changes of address, phone number, or business affiliation during the time period in which the legal services are performed.
The class representative is required to vigorously prosecute the litigation. This means that the class representative must authorize his/her lawyer to do what is necessary to successfully prosecute the case on behalf of the class members and to consult with counsel concerning the prosecution of the litigation.
The class representative may be responsible for providing appropriate notice to the class, depending on whether the law or the judge requires such notice. A class representative’s lawyer will undertake this task on the class representative’s behalf and be responsible for all costs, the reimbursement of which will be contingent on the outcome of the litigation.
A class representative recognizes and accepts that any resolution of the lawsuit, such as by settlement or dismissal, is subject to court approval, and must be designed in the best interests of the class as a whole. The class representative’s lawyer will consult with the class representative before recommending a settlement. The class representative will not participate in any settlement negotiations without his/her lawyer’s consent.
A class representative volunteers to represent many other people with similar claims and damages, because he/she believes that it is important that all class members benefit from the lawsuit equally, because he/she believes that a class lawsuit will save time, money, and effort, and thus will benefit all parties and the court, and because he/she believes that the class action is an important tool to assure protection of people or businesses injured in a similar way as the class representative.
A class representative understands and acknowledges that he/she will not receive any special benefits or recovery not afforded to other members of the class, except as warranted and approved by the court. When class actions settle, the court often awards additional compensation to the class representatives for the extra time and effort they spend on the case and for having the courage to challenge defendant’s conduct. This extra compensation is up to the court and cannot be guaranteed.