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1.6 Alternatives to Filing a Class Action

On rare occasions, classes have been certified with as few as eighteen to twenty class members.34 However, if the class is small and if most or all of the class members can be identified prior to filing suit, an alternative is to join all the aggrieved persons as plaintiffs and represent them on an individual basis. Indeed, in this circumstance, a class may not be certifiable precisely because joinder is not impracticable, as required by Fed. R. Civ. P 23(a)(1). Massive joinder has been successfully pursued in cases involving as many as several hundred class members when, for various reasons, a class action was not feasible or desirable.35

When it is practical to find and join together in one action most or all those affected by an abusive practice, the benefit is that such an approach helps avoid the fight over class certification. It is particularly useful when the law within a jurisdiction or the nature of the claims makes class certification a difficult proposition. Joinder may also be superior to a class action if only statutory damages are sought and the defendant’s low net worth limits the class’s potential maximum recovery. On the other hand, plaintiff’s counsel may well end up defending numerous depositions and responding to burdensome discovery in such a case.

One problem with joinder is the potential difficulty of finding the consumers who should be joined together as plaintiffs in the case. State bar rules should be consulted to determine whether such rules limit attorneys’ ability to solicit other similarly situated consumers. Note that, if persons with the same claim are identified after suit is filed, they may be added as plaintiffs or, in the alternative, a new action may be filed in their name, which can then be consolidated with the existing case pursuant to Fed. R. Civ. P. 42. If a major objective of the litigation is to force a discontinuation of the defendant’s abusive practices in general, a class action may be necessary when all or most class members cannot be identified.36 An individual suit, or a suit joining all known class members, may not permit obtaining the desired relief of halting the defendant’s practices.

A separate problem with joinder is that ethical issues may arise if the same counsel is negotiating to settle competing claims for multiple plaintiffs against the same defendant.37

Finally, if an action is pursued not as a class, there is no fee procedure mandated as under Rule 23(h). Generally, the individual attorney-client contracts will control the fee as agreed by the litigants and their counsel.

Footnotes

  • 34 {34} E.g., § 10.3.1, infra.

  • 35 {35} Ray E. Gallo, A new aggregate litigation model emerges—technology-driven mass actions, 27 Cal. Litig., No. 3 (Nov. 2014), available at www.gallo-law.com.

  • 36 {36} This situation may be more common when the defendant’s practices are oral rather than written or when class members are not readily identifiable from the defendant’s records or objective evidence.

  • 37 {37} See Huber v. Taylor, 439 F.3d 67 (3d Cir. 2006) (attorneys handling multiple plaintiff settlements sued for malpractice).