Will Oil-Spill Victims Have to Pay Twice? Class-Action Lawsuits Shouldn't Put Corporations and Lawyers First

The Washington Times (Washington, DC), May 28, 2010 | Go to article overview

Will Oil-Spill Victims Have to Pay Twice? Class-Action Lawsuits Shouldn't Put Corporations and Lawyers First


Byline: Brian J. Donovan, SPECIAL TO THE WASHINGTON TIMES

The question is whether victims of the BP oil spill will have to pay twice: once for the spill, the environmental and economic damages of which will devastate their way of life and leave many in financial ruin, and again for daring to demand justice, which will consume their time, energy and hopes for years to come if they are held hostage by class-action lawsuits.

Teams of lawyers from across the country have descended on the Gulf Coast to file potential class-action lawsuits to recover damages suffered by the lead plaintiffs and absent class members as a result of the BP oil spill.

A class action is a procedural device that permits one or more plaintiffs to file and prosecute a lawsuit on behalf of a larger group. The larger group consists of the class members who have suffered the same wrong at the hands of the defendant but are too numerous for the court to manage the lawsuit adequately if each class member were required to be joined as named plaintiffs.

In order to proceed as a class action, the case must be certified as a class action. That is, a court must determine that the class-action criteria set forth in Rule 23 of the Federal Rules of Civil Procedure have been met. A class certified under Rule 23(b)(3) is distinct from a class certified under Rule 23(b)(1) or (2) in one important way. If a Rule 23(b)(3) class is certified, notice of the class action must be sent to class members and an opportunity to opt out of the class must be provided. In contrast, a class certified under Rule 23(b)(1) or (2) is mandatory. Notice is not required, and no class member may opt out. Despite requirements regarding the notice that must be given to absent class members, there is always the possibility that many class members will not receive notice of the litigation or that such notice will be insufficient to inform them fully of their rights, thereby depriving them of any meaningful opportunity to opt out.

If a class is certified and the class representatives are unsuccessful, the absent class members' claims will be legally obliterated by the result of the litigation even though they did not actively participate in the suit. …

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