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Understanding the Difference Between Mass Torts & Class Actions

2012 March 29
by Paul Anderson

*Scroll to the bottom for a simple lesson to distinguish between a mass tort and a class action.

The NFL concussion litigation has brought on a new form of vocabulary that is honestly very difficult to comprehend. These civil lawsuits fall within the high-stakes realm of  “complex litigation.” Complex litigation, as the term implies, generally includes numerous parties, complex variations of law, and millions — perhaps billions — of dollars at stake.

Although the various lawsuits filed in the past eight months are very similar in the factual allegations pled and the legal theories asserted, they are technically different. There are three types of lawsuits that have been filed thus far: (1) single plaintiff lawsuits; (2) mass torts and (3) class actions. We’ll discuss each in turn.

Single Plaintiff Lawsuit

Let’s say you were involved in a car accident. You were stopped at a red light and another vehicle rear-ended you, and let’s say you broke your leg and received a concussion. So, what do you do? (You better call Saul!!!) You file a lawsuit against the person that rear-ended you, and the lawsuit would likely be captioned, Paula Plaintiff v. Danny Defendant.

There is one plaintiff, Paula v. one Defendant, Danny. This is the type of lawsuit that was filed by Jamal Lewis: Lewis v. NFL. The only slight difference is that Lewis names two defendants: the NFL and the NFL Properties. But the same principle applies, a single plaintiff is seeking damages from a defendant(s).

Ok, I’m sure you were all aware of this type of lawsuit, now lets jump into the realm of aggregate litigation. This a technical area of the law that focuses initially on procedural requirements, for our purposes, set forth in the Federal Rules of Civil Procedure (FRCP). The term often used to describe this type of litigation is called “party aggregation.” Meaning, that several parties will be combined together through one procedural device or another: either a mass tort or a class action.

Mass Tort

A mass tort is where several plaintiffs are joined together in one single action. The procedural requirement is set forth in FRCP 20(a), called joinder. The general requirement is that the plaintiffs share common questions of fact or law that arises out of the same series of transactions or occurrences.

Using the Mark Rypien et al v. NFL lawsuit as an example, the 126 plaintiffs share several common questions of fact and law that occurred through a series of transactions and occurrences by the NFL.

Specifically, the plaintiffs allege that they were all football players in the NFL, they all received a concussion, and they all currently suffer from cognitive impairment (i.e. memory loss, dementia, headaches, etc.). Further, the purported wrongdoing occurred by the NFL in a series of occurrences throughout the player’s careers. Such as, the NFL allegedly engaged in several years of concealing the truth about concussions and the long-term consequences that could occur.

Class Action

On the other hand, a class action generally involves one or two named plaintiffs, or sometimes more, but the named plaintiff seeks to represent a class of several individuals not named in the complaint. The procedural requirements to certify a class are set forth in FRCP 23. The requirements are very strict and each must be satisfied before a class can be certified.

A class action, in theory, allows a lawyer to bring a lawsuit on behalf of several hundred people without even having to know the names of 99% of them, initially. All a lawyer needs is a good-faith belief that there are several class members, and more importantly, a class representative that purports to represent the interest of the entire class.

This procedural device was used in the first lawsuit filed in federal court: Easterling v. NFL. In this lawsuit, there are seven class representatives and each purport to represent a class of football players that played during a different era in the NFL.

For example, Jim McMahon is a named plaintiff, and he seeks to represent a Class of all NFL players that played in the NFL from 1981-1989.

Similarly, the Locks Law Firm has started filing class actions in state court that seek to represent a Class of all former players that are residents of said state where the lawsuit was filed.

However, just because the lawsuit seeks to certify a class of all players that played during a certain era, or currently reside in a state, the court must approve that the class meets all the requirements set forth in Rule 23. In a class action, this is often the most litigated aspect of the lawsuit. The parties spend an enormous amount of time briefing and arguing whether the class should or should not be certified. You will definitely see this take place in the concussion lawsuits, if the players are able to defeat the NFL’s Motion to Dismiss.

Here is a quick and simple way to distinguish between the two lawsuits:

Mass Tort

1) If the complaint names several plaintiffs, it is likely a mass tort.

2) If you can find the word “joinder” and Rule 20(a), it is a mass tort.

NOTE: The Civil Cover Sheet does not check the box “class action.”

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Class Action

1) If the complaint names only a few plaintiffs but the complaint states “Class Action,” then obviously it is a class action.

2) If you see Rule 23, and a Class definition, then it is a class action.

NOTE: The lawsuit initially states “Class Action…Complaint”

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Finally, to make things more confusing, a class action can be called a mass tort; however, it is technically incorrect to call a mass tort a class action. Non sequitur, indeed!

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