Editing Class action (section)

==History==

===England and the United Kingdom===
The antecedent of the class action was what modern observers call "group litigation," which appears to have been quite common in [[medieval England]] from about 1200 onward.<ref name=Yeazell>{{cite book|last1=Yeazell|first1=Stephen C.|authorlink1=Stephen C. Yeazell|title=From Medieval Group Litigation to the Modern Class Action|date=1987|publisher=Yale University Press|location=New Haven|doi=10.2307/j.ctt2250x10 |isbn=9780300037760|oclc=15549646|jstor=j.ctt2250x10}}</ref>{{rp|38}} These lawsuits involved groups of people either suing or being sued in actions at [[common law]]. These groups were usually based on existing societal structures like villages, towns, parishes, and guilds. Unlike modern courts, the medieval [[English court]]s did not question the right of the actual plaintiffs to sue on behalf of a group or a few representatives to defend an entire group.<ref name=Yeazell/>{{rp|38–40}}

[[File:Old and new London - a narrative of its history, its people, and its places (1873) (14598096217).jpg|thumb|300px|Engraving of the Star Chamber, published in "Old and new London" in 1873, taken from a drawing made in 1836]]
From 1400 to 1700, group litigation gradually switched from being the norm in England to the exception.<ref name=Yeazell/>{{rp|100}} The development of the concept of the [[corporation]] led to the wealthy supporters of the corporate form becoming suspicious of all unincorporated legal entities, which in turn led to the modern concept of the [[Unincorporated associations in English law|unincorporated]] or [[voluntary association]].<ref name=Yeazell/>{{rp|124–25}} The tumultuous history of the [[Wars of the Roses]] and then the [[Star Chamber]] resulted in periods during which the common law courts were frequently paralyzed, and out of the confusion the [[Court of Chancery]] emerged with exclusive jurisdiction over group litigation.<ref name=Yeazell/>{{rp|125–32}}

By 1850, Parliament had enacted several statutes on a case-by-case basis to deal with issues regularly faced by certain types of organizations, like joint-stock companies, and with the impetus for most types of group litigation removed, it went into a steep decline in English jurisprudence from which it never recovered.<ref name=Yeazell/>{{rp|210–12}} It was further weakened by the fact that [[Equity (law)|equity]] pleading, in general, was falling into disfavor, which culminated in the [[Judicature Acts]] of 1874 and 1875.<ref name=Yeazell/>{{rp|210–12}} Group litigation was essentially dead in the United Kingdom after 1850.

===United States===
{{Civil procedure (United States)}}
[[File:Daguerreotype of Joseph Story, 1844 (edit).jpg|thumb|180px|Associate Justice [[Joseph Story]]]]
Class actions survived in the United States thanks to the influence of Supreme Court Associate Justice [[Joseph Story]], who imported it into [[Law of the United States|US law]] through summary discussions in his two equity treatises as well as his opinion in ''[[West v. Randall]]'' (1820).<ref name=Yeazell/>{{rp|219–20}} However, Story did not necessarily endorse class actions, because he "could not conceive of a modern function or a coherent theory for representative litigation."<ref name=Yeazell/>{{rp|219–20}}

The oldest predecessor to the class-action rule in the United States was in the [[Federal Equity Rules]], specifically Equity Rule 48, promulgated in 1842.

<blockquote>Where the parties on either side are very numerous, and cannot, without manifest inconvenience and oppressive delays in the suit, be all brought before it, the court in its discretion may dispense with making all of them parties, and may proceed in the suit, having sufficient parties before it to represent all the adverse interests of the plaintiffs and the defendants in the suit properly before it. But in such cases, the decree shall be without prejudice to the rights and claims of all the absent parties.<ref>The New Federal Equity Rules Promulgated by the United States Supreme Court at the October Term, 1912: Together with the Cognate Statutory Provisions and Former Equity Rules; with an Introduction, Annotations and Forms, p. 52</ref></blockquote>

This allowed for representative suits in situations where there were too many individual parties (which now forms the first requirement for class-action litigation – numerosity).<ref>Deborah R. Hensler, Nicholas M. Pace, Bonita Dombey-Moore, Beth Giddens, Jennifer Gross, Erik K. Moller, ''Class Action Dilemmas: Pursuing Public Goals for Private Gain'' (Santa Monica: RAND, 2000), 10–11.</ref> However, this rule did not allow such suits to bind similarly situated absent parties, which rendered the rule ineffective.<ref name=Yeazell/>{{rp|221}} Within ten years, the Supreme Court interpreted Rule 48 in such a way so that it could apply to absent parties under certain circumstances, but only by ignoring the plain meaning of the rule.<ref name=Yeazell/>{{rp|221–222}} In the rules published in 1912, Equity Rule 48 was replaced with Equity Rule 38 as part of a major restructuring of the Equity Rules, and when federal courts merged their legal and equitable procedural systems in 1938, Equity Rule 38 became Rule 23 of the [[Federal Rules of Civil Procedure]].

====Modern developments====
A major revision of the FRCP in 1966 radically transformed Rule 23, made the opt-out class action the standard option, and gave birth to the modern class action. Entire treatises have been written since to summarize the huge mass of [[case law]] that sprang up from the 1966 revision of Rule 23.<ref name=Yeazell/>{{rp|229}} Just as medieval group litigation bound all members of the group regardless of whether they all actually appeared in court, the modern class action binds ''all'' members of the class, except for those who choose to opt out (if the rules permit them to do so).  [[Arthur Taylor von Mehren]]  characterized the American opt-out class action as the "most extreme development of collective civil litigation in the modern legal world".<ref name="Von_Mehren_Page_182">{{cite book |last1=von Mehren |first1=Arthur T. |last2=Murray |first2=Peter L. |author1-link=Arthur Taylor von Mehren |author2-link=Peter L. Murray |title=Law in the United States |date=2007 |publisher=Cambridge University Press |location=Cambridge |isbn=9781139462198 |page=182 |edition=2nd |url=https://books.google.com/books?id=9tpJlKdqVTsC&pg=PA182}}</ref>

The Advisory Committee that drafted the new Rule 23 in the mid-1960s was influenced by two major developments. First was the suggestion of Harry Kalven Jr. and Maurice Rosenfield in 1941 that class-action litigation by individual shareholders on behalf of all shareholders of a company could effectively supplement direct government regulation of securities markets and other similar markets.<ref name=Yeazell/>{{rp|232}} The second development was the rise of the [[civil rights movement]], [[environmentalism]] and [[consumerism]].<ref name=Yeazell/>{{rp|240–244}} The groups behind these movements, as well as many others in the 1960s, 1970s and 1980s, all turned to class actions as a means for achieving their goals. For example, a 1978 [[environmental law]] treatise reprinted the ''entire'' text of Rule 23 and mentioned "class actions" 14 times in its index.<ref name=Yeazell/>{{rp|244–245}}

Businesses targeted by class actions for inflicting massive aggregate harm have sought ways to avoid class actions altogether. In the 1990s, the US Supreme Court issued several decisions that strengthened the "federal policy favoring [[arbitration]]".<ref name=Giles2005>Giles M. (2005). [http://michiganlawreview.org/archive/104/3/Gilles.pdf Opting Out of Liability] {{webarchive|url=https://web.archive.org/web/20090402175219/http://www.michiganlawreview.org/archive/104/3/Gilles.pdf |archive-url=https://web.archive.org/web/20071004192018/http://www.michiganlawreview.org/archive/104/3/Gilles.pdf |archive-date=2007-10-04 |url-status=live |date=2009-04-02 }}. ''Michigan Law Review''.</ref> In response, lawyers have added provisions to consumer [[standard form contract|contracts of adhesion]] called "collective action waivers", which prohibit those signing the contracts from bringing class-action suits. In 2011, the [[US Supreme Court]] ruled in a 5–4 decision in ''[[AT&T Mobility v. Concepcion]]'' that the Federal Arbitration Act of 1925 preempts state laws that prohibit contracts from disallowing class-action lawsuits, which will make it more difficult for consumers to file class-action lawsuits. The dissent pointed to a saving clause in the federal act which allowed states to determine how a contract or its clauses may be revoked.<ref>Foreman C. [https://arstechnica.com/tech-policy/news/2011/04/scotus-rules-att-can-force-arbitration-block-class-action-suits.ars "Supreme Court: AT&T can force arbitration, block class-action suits"]. ''Ars Technica''.</ref>

In two major 21st-century cases, the Supreme Court ruled 5–4 against certification of class actions due to differences in each individual members' circumstances: first in ''[[Wal-Mart v. Dukes]]'' (2011) and later in ''[[Comcast Corp. v. Behrend]]'' (2013).<ref>{{cite news |last1=Stempel |first1=Jonathan |title=Supreme Court rules for Comcast in class action |url=https://www.reuters.com/article/us-usa-court-comcast-classaction-idUSBRE92Q0MS20130327 |access-date=21 January 2024 |work=[[Reuters]] |date=27 March 2013 |archive-url=https://web.archive.org/web/20160602201019/https://www.reuters.com/article/us-usa-court-comcast-classaction-idUSBRE92Q0MS20130327 |archive-date=2 June 2016 |url-access=registration}}</ref>

Companies may insert the phrase "may elect to resolve any claim by individual arbitration" into their consumer and employment contracts to use arbitration and prevent class-action lawsuits.<ref>{{cite news |title=Arbitration Everywhere, Stacking the Deck of Justice |url=https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html |url-access=subscription |archive-url=https://web.archive.org/web/20151115004534/https://www.nytimes.com/2015/11/01/business/dealbook/arbitration-everywhere-stacking-the-deck-of-justice.html |archive-date=2015-11-15 |newspaper=The New York Times |date = 2015-10-31 |access-date=2015-10-31 |issn=0362-4331 |first1=Jessica|last1=Silver-greenberg |author1-link=Jessica Silver-Greenberg |first2=Robert |last2=Gebeloff}}</ref>

Rejecting arguments that they violated employees' rights to collective bargaining, and that modestly-valued consumer claims would be more efficiently litigated within the parameters of one lawsuit, the U.S. Supreme Court, in ''[[Epic Systems Corp. v. Lewis]]'' (2018), enabled the use of [[Class action waiver|class action waivers]]. Citing its deference to freedom to contract principles, the Epic Systems opinion opened the door dramatically to the use of these waivers as a condition of employment, consumer purchases and the like. Some commentators in opposition to the ruling see it as a "death knell" to many employment and consumer class actions, and have increasingly pushed for legislation to circumvent it in hopes of reviving otherwise-underrepresented parties' ability to litigate on a group basis. Supporters (mostly pro-business) of the high court's ruling argue its holding is consistent with private contract principles. Many of those supporters had long-since argued that class action procedures were generally inconsistent with due process mandates and unnecessarily promoted litigation of otherwise small claims—thus heralding the ruling's anti-litigation effect.

In 2017, the US Supreme Court issued its opinion in Bristol-Meyer Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2017), holding that over five hundred plaintiffs from other states cannot bring a consolidated mass action against the pharmaceutical giant in the State of California.  This opinion may arguably render nationwide mass action and class action impossible in any single state besides the defendant's home state.

In 2020, the 11th Circuit Court of Appeals found incentive awards are impermissible. Incentive awards are a relatively modest payment made to class representatives as part of a class settlement. The ruling was a response to an objector who claimed Rule 23 required that the fee petition be filed ''before'' the time frame for class member objections to be filed; and payments to the class representative violates doctrine from two US Supreme Court cases from the 1800s.<ref>{{cite web |title=Eleventh Circuit Court of Appeals Holds that Incentive Payments Commonly Awarded to Class Representatives are Impermissible in a Classwide Settlement |url=https://tcpaworld.com/2020/09/18/no-incentive-eleventh-circuit-court-of-appeals-holds-that-incentive-payments-commonly-awarded-to-class-representatives-are-impermissible-in-a-classwide-settlement |first=Eric J. |last=Troutman |publisher=TCPA World |date=September 18, 2020 |access-date=September 19, 2020}}</ref><ref>{{cite court |litigants=Johnson v. NPAS Solutions |court=[[11th Cir.]] |date=September 17, 2020 |access-date=September 19, 2020}}</ref>

=== Statistics ===
As of 2010, there was no publicly maintained list of nonsecurities class-action settlements,<ref name=":1">{{Cite journal|title = An Empirical Study of Class Action Settlements and Their Fee Awards|journal = Journal of Empirical Legal Studies|date = 2010-12-01|issn = 1740-1461|pages = 811–846|volume = 7|issue = 4|doi = 10.1111/j.1740-1461.2010.01196.x|language = en|first = Brian T.|last = Fitzpatrick|s2cid = 4611237}}</ref> although a securities class-action database exists in the Stanford Law School Securities Class Action Clearinghouse and several for-profit companies maintain lists of the securities settlements. One study of federal settlements required the researcher to manually search databases of lawsuits for the relevant records, although state class actions were not included due to the difficulty in gathering the information.<ref name=":1" /> Another source of data is [[Bureau of Justice Statistics|US Bureau of Justice Statistics]] ''Civil Justice Survey of State Courts'', which offers statistics for the year 2005.<ref>{{cite web|title=Data Collection: Civil Justice Survey of State Courts (CJSSC)|url=https://www.bjs.gov/index.cfm?ty=dcdetail&iid=242|website=Bureau of Justice Statistics|publisher=Office of Justice Programs|access-date=21 March 2018}}</ref>