if you've ever received a check for i don't know seventeen cents you may very well have been a member of a class action suit and not know it tonight we're going to learn about class action suits who benefits and who is left behind i married when she obviously and welcome to pro se nation joining us today is annabel stein hacker appellate counsel at jobber baum work after hicks cong wickstrom and sentence ms stein hackers practice is concentrated on personal injury matters involving automobile negligence product liability construction site negligence and the representation of persons charged with motor vehicle and criminal violations also joining us is tom the founding member of the law offices of thomas for astro in union county new jersey mr vera astro is an experienced litigator and trial attorney whose clients range from individuals to corporations in matters that stand minor ordinance violations to complex business litigation he has also served as the new jersey litigation adviser and counsel to boutique law firms in new york pennsylvania florida texas and louisiana thanks for joining me my pleasure thank you for so since this program is you know our mission in with pro se nation is really to help the average person better understand the law i think it's always great to begin with defining our terms but i'd like to ask you annabel can you kind of take us through a little bit what a class action suit is and how it comes about sure so a class action lawsuit is a civil court procedure war where an individual or a group of individuals act as a representative for a large group or class of people who are similarly situated generally the topics of the class action can range they can vary widely but there are a couple characteristics that are always present in every class action the first is that the issues in dispute in a class action must be common across the class and the second is that the number of people impacted in the class action must be so great that it would be impractical to bring every claim individually before a court so that's basically the definition of a class action suit and how is it form does it form differently is there a difference between the federal level and the state level or well the federal level is ruled by rule twenty three of the federal court procedure but generally what happens in a class action suit is an attorney who represents an individual or group of individuals from a class moves makes a motion to a court and asks for the class to be certified that would happen in federal court that would happen in state court once that class certified there are notice requirements to ensure that members of the class are alerted to the fact that their interests are being represented and to a large extent on the state level jersey mirrors the federal court rules to a large extent there are there are places where there were new jersey's rule verges from the federal rule but to a large extent new jersey mirrors what the federal requirements are there seems to be and we talked a little bit about this in our pretty interview there's a kind of common belief that clay in class action suits it's the lawyers who walk away with the lion's share of the rewards and often the class members allegedly walk away with a rather paul a paltry sum i think it's sometimes referred to as coupon settlements how true is that and how often if it is true well i think it's important to recognize that in many situations where the class action procedure is utilized the claims of the individuals are too small to justify a lawsuit so let me give you an example  if you have a bank that's charging a t m fees when it's not supposed to a lawsuit is very expensive and it might not be worth it to recover in the last a t m fees but when you aggregate the many claims of all of the multiple victims in a class action lawsuit then there becomes a feasibility an economic feasibility to a class action suit and in that sense i think it's very important for people to recognize that class actions offer an opportunity of recovery that they may not otherwise have when it comes to some kind of corporate malfeasance and i also think that you i think it's under appreciated at times the amount of time and effort that it takes to to pursue these actions on me a half of us attorneys have to go through a low frequently and many of these cases have to go through a lengthy discovery process that frequently involves a balloon this amount of information that has to be sifted through typically often it takes a team of people that that sift through that information to be able to present the case to the court and i think that that times is under appreciated by by the members of a class that may get a coupon settlement right right tom is absolutely right i think that there are thousands of man hours that go into a class action lawsuit it's a complicated piece of litigation and you add on to that the fact that attorneys are generally fronting all the costs on those class actions they're very expensive to prosecute so when you see an attorney thi and it looks exorbitant you have to break it down by the thousands of hours representing tens hundreds even thousands of class members and also the recuperation of all of those costs and let's not forget about experts either i mean in many of these cases for example in in litigation involving involving  a product liability claim against the company you have to hire frequently hire engineering experts other types of experts in there or they can be costly as well so the recovery also goes for the recruitment of those expenses  is so then there really is a value that a lot of people don't see in a class action could you elaborate a little bit more on the value of being part of a class as opposed to going it on your own well certainly you have to consider that often class actions come about where there's been some kind of as i said corporate malfeasance and often when you have a corporate entity you have very large resources and huge litigation teams so to take on those resources as an individual it can be you can be easily overwhelmed however when you bring all those claimants together you can sort of match the resources and it becomes somewhat more of a fair battle and i also think that you well there are a number there are a number of values to it one of what a great one need is economy judicial economy it becomes it becomes a so i think that that is a tremendous value rather than having of a large number of people with individually filing claims for essentially the same relief and there's an economic value to as well  i would add also that in certain circumstances a defendant may have an insurance policy and the benefit of a class action is that whatever recovery one can get from that insurance policy gets dispersed among the whole class whereas if there are individual lawsuits brought it creates sort of a race to the court whoever gets there first has the bite at the biggest apple and if you end up entering the litigation process later there may be no insurance proceeds left pay  claim man i'd actually like to talk about some of the class actions that really had some of the really well known class actions that we know about from movies such as erin brockovich anderson versus syfy gas and electric company that was supposed to be at least as far as the research i did the biggest settlement a civil settlement in history in a class action maybe it was at the time that was three hundred thirty three million company and that was depicted in the film north country and apparently that had quite an impact on sexual harassment laws in the united states and then certainly some of the truly landmark cases brown versus board of education and roe v wade a woman's right to choose would are there i guess you know these are examples really of how a class action really can have a very profound effect where joining together really gives strength to people who could not have fought alone is there anything else that argument comes in is it isn't the court's role to make those changes versus the legislatures role to make those changes then i but i think the advantage that a class action can bring is to focus attention to bring attention to an issue and certainly where significant damage is unfortunately fortunately or unfortunately in our country it's what this determines policy is often determined by what the numbers bear out hook so when when a large when a large award is obtained in a class action suit that  catches people's attention and when when social change is affected as a result of the class action lawsuit that drives that that is driven by you know the public's interest and what what policies need to change right so this really is an example of strength in numbers right i mean it as you said earlier you know for an individual plaintive to bear the costs involved especially if it is a truly complex case and expert witnesses are required in that kind of thing so absolutely and i would go further to say that when you have such large results it keeps corporations and their actions in check if i as an individual sued the tobacco companies and said oh i got cancer and they and i we got a million dollar settlement it would mean nothing but the three hundred sixty eight point five billion dollars settlement that was assessed against thirteen companies that meant something absolutely what i think is kind of interesting  in terms of the communication to class members once they've been identified it seems like they so as i understand it they get a letter in the mail  snail mail right and then i guess sometimes they there are commercials on television right that say you know a class has formed or there are laws around how that communication has to take  place i think that generally there are different methods that are required by the court and when an attorney is appointed to represent the class they initiate those different methods and that you're absolutely right there are a number of different methods including advert advertising in the newspaper or the whole scene class action advertisements in a in a newspaper about who to notify if you believe that you were wronged in a certain way if you decide i don't want to be part of the class action i want to litigate this kit on my own you actually proactive pro act les have to opt out correct with with proper notification i believe that i believe that's right the thing is if you never get the notification in the first place you don't even know you're a member of the class with i would add for individuals you know considering their options with regard to opting out of the class action i think there is value to consulting earning your local attorney but where you before you decide to do that i think it's a good generally a good idea for people to be well informed about the possible risks of opting out what they might letting go by doing that and i think the other the other side of the other flip side of that coin is that if you don't opt out in a class action lawsuit when a settlement  approved by the judge your right to recovery thereafter is over because once here you've been identified as part of that class your rights are being represented and just like in a regular litigation once it's done it's done right i think also getting back to the sort of the basis of a basic understanding of the way this works because i wouldn't want your audience to have to be misled about the way this proceeding happens typically it is not every plaintiffs that gets to tell their story to the court ok class actions work by way of having representative members of a class tell their story or exchange their discovery with with the defense attorney and when i say representative members it's not like an election  the way that the way it works is the council makes thoughtful decisions about the injuries that the plaintiffs have sustained and within that pool of plaintiffs they look for cases that they feel best reflect what is a what has happened to the balance of the individuals so if there's a class that is comprised of maybe one hundred members  there might be only three to five cases that actually represent ok the the remaining members of the class so it's not necessarily the first litigant who filed and oh ok no go it's typically so it's the one that might have the story or the ones that would have the story that would really represent the rest exact as to represent ok the representative needs to fairly and accurately represent the rest of the class that's key and that's in the federal rules that language in picking your representative plaintiffs now the benefit of that is that if you're just a member of the class and you're not the representative plaintiffs you really don't have to participate in the litigation right so you know often in your garden variety litigation you have to be present for discovery depositions appear a trial class members don't have to do any of that right as i understand  your firm i'm not quite sure how much you can talk about the v w volkswagen emissions fraud case that is now really evolving can you tell us a little bit about that and what how your firm is participating right now sure it might be helpful if i give a little background on the litigation sure so the volkswagen litigation stems at least in part from misrepresentations that volkswagen has made to its customers regarding their t d i clean fuel diesel vehicles ok so volkswagen has been a leading proponent of this clean fuel technology and as such it promotes its vehicles by stating if you buy one of these vehicles it's more environmentally friendly and it's a financially responsible decision ok in two thousand and nine volkswagen out fitting a number of models in their t d i division with a software that essentially worked to what's the word i'm looking for a software device that defeated the emissions testing programs so essentially the software could recognize whether the car was on the open road or whether it was hooked up to an emissions test if it was hooked up to an emissions test all the pollution controls would go on but if the car was on the open road there were no pollution controls on and those cars were emitting emissions that were up to forty percent higher than what the e p a says is allowable in the united states now is this whole alleged at this point or have a admittedly was or what well in in on september twenty first of this year the c e o for volkswagen usa came out and said yes we misled the e p a and we misled our customers really and in the united states there were over four hundred thousand affected cars worldwide there's over eleven million so what's happening now obviously is there's been litigations that have sprung up all over the country and many of those litigations are going to their courts and requesting certification of a class and looking for consolidation and they're utilizing  located now presently we are expecting the decision from the multi day district litigation panel the first week of december and there's a very good chance that that class action if it gets certified will be in new jersey because new jersey happens try to get them compensated so to give you a little idea of what the damages are in this case v w represented to its customers that this was going to be an environmentally friendly set of cars  that the fuel cost would be low and that it would have very good value it would hold its value because it would be an exceptional car with exceptional performance what we in to support will happen is that there will be a mandatory recall of these vehicles and all the emissions issues will be retrofitted unfortunately the performance of the cars is going to be greatly degraded by those changes the cars are not going to hold their value the same way they won't have the same resale value and those are the types of damages that we're looking to compensate our or get our clients compensated with roughly speaking and i don't know if you can say this at this point but how many are we talking in new jersey i actually don't know the full number ok but i mean are we talking hundreds thousands or i just i don't know and i wouldn't want to misrepresent sure ok francisco federal district court court and the question there is going to be essentially were the bloomberg drivers misclassified as consultants or but i think what it raises an interesting point for for the purposes of your audience understanding you know oftentimes technology is such a driving factor  regulation of that use if there needs to be regulation and that's a whole separate right decision but you know it's an example of using using technology may be a step ahead of making sure that ensuring that individual's rights are protected for extra at the very least their expectations are protected in terms  of what this class of litigants is looking is looking for and perhaps rightly so well i think it's going to be interesting you know the uber case not only has to do with i mean it does touch technology but it also touches which i feel like i need to do a whole series on this really what constitutes an employee these days yes right that is kind of at the center of this question and so many companies are using contractors and consultants and where does it begin and where does it end well you know with the you see sort of the emergence of a whole new economy right air b n b exact thing exactly and the ripple effect is enormous  obviously they're the employees themselves the independent contractors of the employees but it ripples out into personal injury lawsuits worker's compensation for loss it right so the rights do need to be defined so that we know what we're dealing with in our society and there are those there are mechanisms for the law to address those things but you know frequently it takes a litigation for for those those guidelines to become pronounced so that companies are informed about how they should act going forward well it certainly is you know there's just no end to the complexity that we've created i mean it's and it's it's fascinating really how the law will eventually hopefully catch up with technology and the changing changes in society you mean in terms of you know gone are the days where an individual works for one company and pretty much works for that company cradle to grave now people are working multiple jobs and again how is the law going to address that their rights  are running out of time and i want to ask both of you to stay to answer a few more questions thank you so much thank you thank you thanks for joining us for this edition of pro se nation if you would like to be a guest on the show or you have any recommendations for topics please contact us through the web and facebook on pro se nation doug org and again on facebook thank you so much