USA Law and Practice Contributed by: Courtney Scobie and Jack Edwards, Ajamie LLP
3.7 Representative or Collective Actions The federal courts allow for representative actions, class actions, and collective actions. These mecha- nisms join individuals who have similar claims or legal issues in a single lawsuit. Class actions are allowed in federal court when many individuals have similar claims and it would be imprac- tical for each person to bring an individual lawsuit. Common scenarios include consumer protection cases, product liability claims, securities fraud cases, and civil rights matters. Class actions are typically either opt-in or opt-out. This means that individuals who fall within the class definition are either automati- cally excluded from the class unless they opt in by filing a claim by a certain deadline or automatically included in the class unless they opt out by a certain deadline. FRCP 23 sets out criteria for certifying a class action. These criteria include numerosity, com- monality, typicality, adequacy of representation, and whether a class action is the superior method for han- dling the dispute. Collective actions are commonly associated with wage-and-hour claims under the Fair Labor Standards Act (FLSA). They are allowed when a group of employ- ees believes their statutory rights, such as their right to overtime pay or a minimum wage, have been violated. Collective actions are generally opt-in. Potential plain- tiffs must affirmatively consent to join the lawsuit by filing an opt-in form by a certain deadline. The stand- ard for certifying a collective action depends on where the case is pending but is generally lower than that for a class action. To join a collective action, workers must show that they are similar enough to each other and have the same dispute with their employer. Representative actions are a broader category that includes both class and collective actions. They allow individuals or entities to represent others in pursuing legal claims. The specific circumstances and require- ments vary depending on the type of claims involved. 3.8 Requirements for Cost Estimate Attorneys are generally not required to provide clients with a specific cost estimate for potential litigation at the beginning of a case. However, attorneys are obligated to provide clients with information about
summons and a copy of the complaint. The summons informs the defendant of the lawsuit and includes a response deadline. The preferred method of service is personal service, whereby the defendant is physically handed the summons and complaint. This ensures direct notice. If the defendant has appointed an agent to accept service of process on their behalf, the documents can be delivered to the agent. If a corporation does busi- ness in a state, it must generally appoint an agent for service of process. Corporations, partnerships and other entities may also be served by delivering a copy of the documents to an officer, managing or general agent or to or any other agent authorised by appointment or law. Service of process is the responsibility of the plaintiff, not the court. If the plaintiff does not ensure that the defendant is properly served, the case may be dis- missed. A party located outside the USA can be sued in the USA. In some cases, a plaintiff can serve process per- sonally on a defendant outside the USA in a manner consistent with the laws of the foreign country where service occurs. With court approval, and if allowed by international agreements, a plaintiff may serve process by mail to a defendant outside the USA. If the country of the defendant is a party to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents, service can be made through the central authority designated by that country. 3.6 Failure to Respond If a defendant fails to respond to a lawsuit by the deadline (typically 21 days after being served), the plaintiff may seek a default judgment. A default judg- ment is a court order that grants the relief requested in the complaint. By not responding, the defendant forfeits the opportunity to defend itself against the plaintiff’s claims. Once a default judgment is entered, the plaintiff can take steps to enforce it, such as fil- ing liens on the defendant’s property, pursuing wage garnishment, or seeking the appointment of a receiver to enforce the judgment.
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