How to start a class action lawsuit

Not every wrong can become a class action. Federal Rule of Civil Procedure 23 sets the tests a court will apply later, so lawyers apply them at the start. A class can be certified only if it is so numerous that joining everyone is impracticable, there are common questions, the representatives' claims are typical, and the representatives will adequately protect the class. For money damages, common questions must also predominate over individual ones.

Ask yourself:

• Did the company do the same thing to many people? A uniform fee, policy, label, contract term, or security failure is a good sign.
• Is your loss similar to everyone else's? If your harm is a serious injury or unique to you, an individual case usually fits better. See class action vs. individual lawsuit.
• Is the class big enough? Many courts presume numerosity at 40 members, though there is no fixed minimum.
• Is there a law that covers it? Consumer protection laws, the TCPA, the FCRA, wage laws, and antitrust laws are common bases. See types of class action lawsuits.

A lawyer will want to see proof that you were affected and that the problem was not a one-off. Collect:

• Transaction records: receipts, order confirmations, bank or card statements showing the charge.
• Communications: emails, texts, letters, chat transcripts, call logs, and screenshots of ads or web pages.
• The contract or terms of service you agreed to, including any arbitration section.
• The product itself and its packaging, if it is defective or mislabeled.
• Notices from the company, such as a data breach letter or recall notice.
• A short timeline of what happened and when.

Also look for signs that others were affected: online complaints, news stories, recalls, government actions, or complaints in the CFPB's public complaint database. Those help show numerosity and commonality. The CFPB says most companies respond to complaints it forwards within 15 days, and those responses can become useful evidence.

Class actions are almost always filed by lawyers. A court will not certify a class without adequate counsel, and Rule 23(g) requires a court that certifies a class to appoint class counsel, considering the work counsel has done investigating the claims, their class action experience, their knowledge of the law, and the resources they will commit. A person without a lawyer generally cannot represent a class.

When you contact a firm, expect a short intake: what happened, when, how much you lost, and what documents you have. Our guide on how to find a class action lawyer covers where to look and what to ask.

Costs work differently from most legal services. Class counsel usually take the case on contingency and advance filing fees, expert costs, and notice costs. If the case succeeds, fees come from the recovery, and under Rule 23(h), the court must approve any attorney's fee award in a certified class action. If the case loses, you typically owe nothing. See who pays lawyers in a class action.

Before filing, the lawyer investigates. Under Rule 11, an attorney who signs a complaint certifies that its factual contentions have, or will likely have, evidentiary support after "an inquiry reasonable under the circumstances." That can mean testing a product, buying it again, reviewing public filings, or interviewing other affected people. See what a lawsuit investigation is.

The complaint names you (and often other plaintiffs from different states), defines the proposed class, lists the legal claims, and asks for damages, restitution, or a court order. The lawyer picks the court. Under the Class Action Fairness Act, federal courts can hear class actions where the amount in controversy exceeds $5 million, the proposed class has at least 100 members, and any class member is a citizen of a different state from any defendant. Smaller or single-state cases may be filed in state court.

Starting a class action usually means becoming its proposed representative. Courts look for representatives whose claims are typical and who have no conflict with the class. In practice, lead plaintiffs:

• Stay reachable and respond to their lawyers for what can be several years.
• Produce documents and preserve relevant emails, texts, and records. Do not delete anything related to the case.
• Answer written questions under oath and may sit for a deposition. See whether you will have to testify.
• Put the class first. You cannot accept a private side deal that shortchanges the class, and any settlement must be approved by the court.

Representatives are sometimes paid an incentive award (also called a service award) for their time, but it is at the court's discretion, and the federal appeals court covering Alabama, Florida, and Georgia held in Johnson v. NPAS Solutions (2020) that such awards are not allowed there. Your recovery otherwise is generally the same as other class members'. Under Rule 23(e), any settlement you negotiate as a representative binds the class only if the court approves it as fair, reasonable, and adequate after a hearing.

After filing, the case typically moves through a motion to dismiss, discovery, class certification, and settlement or trial. Similar cases filed elsewhere may be consolidated, sometimes in multidistrict litigation. The whole process often takes two to five years; see how long class actions take.

If certification is granted or denied, either side has 14 days to ask the court of appeals for permission to appeal under Rule 23(f). Mistakes that can hurt a case before it starts:

1. Waiting too long. The statute of limitations keeps running until a complaint is filed.
2. Accepting a company's refund in exchange for a release without reading it. A signed release can waive your claims.
3. Posting details publicly. Social media posts can become evidence. Share facts with your lawyer instead.
4. Discarding evidence, including the product or old emails.

If you are ready to have your facts reviewed, a free case review takes about two minutes and connects you with independent attorneys who handle these cases.