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In many class actions, the class attorney will have the option of including a number of legal claims. It is just as important to decide what viable claims not to raise as it is to decide which ones to pursue.

Multiple claims can arise because the same fact pattern violates multiple statutes or common law doctrines. An example of a fact pattern supporting multiple claims is one practice that violates a state UDAP statute, the federal RICO statute, and a state RICO statute and that also constitutes common law fraud. A defendant’s actions in violation of the Federal Fair Debt Collection Practices Act may also violate a state debt collection statute and a state UDAP statute. In such cases, the elements of the claims will vary, but their proof will involve similar evidence.

Multiple claims can also arise from different aspects of the consumer transaction. For example, when a furniture company sells shoddy merchandise door to door through retail installment contracts, the company may also fail to give required home solicitation notices of the right to cancel, fail to properly disclose the security interest that it retains on the property sold, require credit life insurance without including it in the disclosed finance charge, sell the credit insurance without a broker’s license, and charge an amount for that insurance in excess of the maximum allowable.

In such a case, the defendant’s actions would support a wide variety of claims under the Truth in Lending Act, state UDAP statutes, common law fraud, unconscionability, breach of fiduciary duty, state home solicitation statutes, and possibly RICO. These claims are very different from those in the previous examples because they involve many different types of issues and, although some of the evidence would obviously overlap, each type would require proof of a different set of facts.

Sections and, infra, examine problems that can arise from including too many claims in a class action, particularly claims requiring proof of different sets of facts. When the transaction involves widely varied conduct by the defendant, it may be better to forego some of the claims or to bring them in separate, perhaps simultaneous, class actions. At least theoretically, the plaintiff’s attorneys can also include them in the same action and request separate trials.169

The temptation to include every possible claim should be avoided, particularly when the type of claim involved is not one in which class certification has been routinely granted in the past or when claims are too diverse in nature. Including theories that do not contribute to the relief available may complicate the case needlessly or make the court reluctant to break new ground. Claims for which individual issues abound also create a wealth of reasons why certification should be denied from a defense standpoint and distract the court’s attention away from what is properly certifiable.


  • 169 {169} The Federal Rules of Civil Procedure allow the court hearing a class action to limit the res judicata effect of its judgment through exercise of its power to define what issues are included in the class suit. See Ch. 18, infra.

    In jurisdictions requiring that all claims arising from a transaction be brought in the same suit, it may be possible to characterize completely different types of claims as having arisen from separate transactions. Perhaps the “transaction” for this purpose can be narrowly defined under local rules. If this is not possible, it may be necessary to join all claims. In such cases, however, the plaintiff should consider which claims are necessary to obtain the relief desired and whether the benefits of inclusion of each claim outweigh the potential complicating factors.

    If the defendant later seeks to consolidate the separate actions, the plaintiff must consider at that time whether or not to oppose this. The same considerations that led to the filing of separate suits in the first place will likely be present. The difference in class definitions is probably a good basis for opposing the consolidation of the cases. The difficulty of formulating adequate notice and of managing the case might be other objections.