Page 40 - AVN November 2015

LEGALESE | | By Clyde DeWitt
Numbers Game
Don’t be in the crosshairs of class action lawyers
plaintiffs into a
”Cramming 1,000
courtroom
is an absurd
notion. The
issue of
whether there
are too many
people for
regular joinder
is called that of
‘numerosity.’
LEGAL NEWS
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
ClydeDeWitt@earthlink.net. More information can
be found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to alert
readers to legal issues warranting advice from your
personal attorney.
As noted last month, the Telephone Consumer Protection Act
of 1991 (TCPA), which allows suits for annoyances such as
unsolicited junk faxes and text messages, is great fodder for
class actions. In view of the fact that not everyone knows too
much about class actions, perhaps it is a good idea for this
column to examine them, at least superficially.
What is a class action? Here’s the idea: Suppose that some
person’s bank illegally charges her maybe three bucks a month
in violation of some statute or regulation. She discovers that
the bank has been doing this for years, but the statute of
limitations on such a claim in her state is three years. So,
three years times 12 months times three bucks is a whopping
108 bucks. Is this poor gal going to pay the filing fee in small
claims court; take a few days off work; spend untold time
figuring out why she is right and the bank is wrong; fight the
bank’s attorneys; and suffer aggravation to collect little over
one Franklin? Unlikely!
However, there might well be thousands of customers who
have been victimized by the same banking miscue. That is
where class actions figure into the picture.
Long ago, courts and their rule-writers figured out that there
should be a procedural solution for such situations. The most
simple is joinder. For example, suppose you and your friend,
out for a Sunday drive, suddenly are rear-ended by a truck at
a stop sign and are injured as a result. Fundamentally, you
and your friend would each sue the driver of the truck and the
company owning the truck. However, it makes more sense to
allow the two of you to each be a plaintiff in the same action.
It promotes judicial economy and reduces the cost of litigation
for the parties, as well as avoiding inconsistent results.
Keying off that concept, courts began being faced with cases
where there were dozens, scores, hundreds, thousands or even
millions of similarly situated plaintiffs. To use the joinder rules
in such a situation obviously wouldn’t work too well. The trial
would need to be in the Rose Bowl.
From that, the class action was born. Where too many
people to fit into a courtroom all had materially identical
claims, the class action rules allow one or a handful of
representatives to bring the action on behalf of the multitude
of claimants with the same problem.
How it works is that a handful of representative plaintiffs
file an action against the target, eventually seeking class status.
The original plaintiff(s), without the class, scuffle with the
defendant. If the defendant can’t get the case thrown out at
that level, then the plaintiff(s) can seek class certification.
Class certification is a tall order. The court must approve
an array of things, including whether the plaintiff(s) and the
attorney(s) can adequately represent the class; whether the
class is big enough to justify a class action (although 20 has
been approved as plenty) and whether the members of the
proposed class have sufficiently common claims.
You may have been a member of a class-action class. Like
most cases, most class actions are settled. However, unlike
most cases, settlements in class actions must be approved by
the judge. As a member of the class, you receive a postcard,
explaining how to collect your $5 on your $100 loss.
So, you get 5 cents on the dollar. So what, take what you can
get. But guess who gets top dollar: the lawyers! The author of
40 | AVN.com | 11.15