USA Law and Practice Contributed by: Roger Cooper and Lina Bensman, Cleary Gottlieb Steen & Hamilton
ages. Also, a number of statutes pursuant to which class actions are often brought, such as the Fair Debt Collection Practices Act (governing certain consumer protection actions) and the Sherman Antitrust Act (governing antitrust actions), provide for heightened damages, incentivising litigants to bring class actions under these laws. Conversely, certain statutes governing particular claims or subject matter create express statutory exceptions to Rule 23 by barring any class actions from proceeding under that Rule with respect to causes of action for which they provide. For exam- ple, plaintiffs may not certify a class under Rule 23 with respect to certain claims brought pursuant to the Fair Labor Standards Act, the Age Discrimination in Employment Act, and the Illegal Immigration Reform and Immigrant Responsibility Act (respectively, bar- ring class certification of certain claims for violation of employment law and asylum). 2.2 Scope of Areas of Law to Which the Legislation Applies As a general matter, any claim may be brought as a class action so long as it satisfies the requirements of Rule 23 and no statutory or common-law exception applies. Class actions are common in particular areas where the nature of the claim lends itself to aggrega- tion, such as:
definition of a class action; rather, they provide the set of features that must be present in order for a suit to proceed as such. For example, Article 9 of New York’s Civil Practice Rules and Laws, a state analogue to Rule 23 that tracks its structure, identifies require- ments that must be satisfied in order for a litigation to proceed as a class action under New York law, but does not otherwise provide a definition for the term. The same is reflected in major federal statutes govern- ing class actions: CAFA expressly bases its definition of a “class action” on Rule 23: “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action” (28 U.S.C. Section 1332 (d)(1)(B)). Rule 23’s requirements include four mandatory prerequisites as well as three broader criteria, at least one of which must be satisfied; these constraints are discussed in greater detail in 3.2 Over- view of Procedure . 3. Procedure for Bringing Collective Redress/Class Actions 3.1 Mechanisms for Bringing Collective Redress/Class Actions Class actions are initiated by the filing of a complaint. A single named plaintiff may bring a putative class action complaint, but a class has to be certified (gen- erally later in the case after the named plaintiff files a motion for class certification) before the case can actually proceed on a class-wide basis. In the United States, class actions may be brought in federal district courts or in trial-level state courts, depending on whether the appropriate jurisdictional requirements are met and which body of law applies. A class action may be brought in federal court if there is federal subject matter jurisdiction over the case, which may arise if either (i) the case asserts claims arising under federal law in accordance with United States Code (USC) Chapter 28, Section 1331, or (ii) there is diversity jurisdiction under USC Chapter 28, Section 1332. Diversity jurisdiction arises where the parties are citizens of different states and where the matter in controversy exceeds USD75,000.
• shareholder claims; • consumer protection; • antitrust; • mass tort and product liability; • civil rights; • environmental law; and • employment law.
These kinds of claims often involve allegations of harms that affect large numbers of potential claim- ants in similar ways. 2.3 Definition of Collective Redress/Class Actions Under United States law, the definition of a class action turns on the requirements contained in Rule 23 and its state law analogues. Under federal and state law alike, the core rules set forth no express
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