Why a Collective Action Lawsuit?
- Unprecedented Damages
The Covid-19 Pandemic is a global phenomenon using emergency powers that have caused massive economic dislocation and threaten to permanently degrade civil liberties that used to be taken for granted.
- Disproportionate Response
The balance of economic, social and political power has shifted in favor of a protected, centralized body of crisis management actors in government and surveillance industries while the independent, entrepreneurial and community based sectors have been fundamentally disenfranchised.
- Emergency Accountability
In the absence of effective parliamentary or media scrutiny, the law courts serve as one of the only options available for objective debate on matters of emergency policy creation and enforcement.
- Level Playing Field
Through litigation there can be a level playing field between the plaintiff and the defendant that is not possible through “politics as usual”.
- Constitutional Modernization
The Collective Action lawsuit is a feature of civil law jurisdictions that can be adapted for Bermuda common law purposes in the same way that many institutions have been obliged to change their normal practices under the pretext of managing the pandemic.
What is Pre-Certification?
The CAST is building the pre-certification criteria for collective action representation and client-attorney privilege beyond the limitations of the Emergency Powers Act. In order to fulfill this mandate, all claimants are empowered by The CAST to qualify their emergency Collective Action interests on a subscription basis according to the following preliminary stakeholder schedule:
- Conscientious Objectors
- Counter Surveillance
- Financial Services
- Travel & Hotel
- Restaurants & Food Service
- Beauty & Personal Care
- Sports & the Performing Arts
- Landlord & Tenant
What is Classification?
Pre-Certification enables The CAST to model the classification strategy for the Collective Action Lawsuit and to identify baseline features of the continued bargaining process for each claimant:
- Homogenous Class
A class consisting of a large number of stakeholders, each with a relatively similar small-value claim
- Heterogeneous Class
A class consisting of a large number of stakeholders, some with relatively similar small stakes but others with medium or large stakes
- Negotiation Class
Putative class members agree to continually negotiate what their shared stakes will be when the lump sum is distributed and exercise mutual control over the size of the lump sum.
What are the benefits of Collective Action?
- Lower Costs to Litigate
The costs to litigate the claims will be spread across many plaintiffs, so it is more feasible for them to be able to afford to litigate the case. Many Collective Actions are handled on a contingency fee basis, meaning that the plaintiffs do not pay for legal fees unless they win the case.
- Opportunity to Litigate
Even if each individual claim is not for that much money, a Collective Action lawsuit allows plaintiffs to pursue a worthy cause. For example, a telecommunications company may be adding hidden fees to consumer bills. While it may not be worth thousands of dollars in legal fees for one plaintiff to pursue a claim for a few hundred dollars, a Collective Action allows such litigants to seek justice.
- A Greater Degree of Uniformity
For plaintiffs, Collective Action lawsuits allow similarly-situated plaintiffs to recover in a similar manner. Additionally, defendants benefit from Collective Action lawsuits in that they know that many similar claims have been resolved at the end of a trial or settlement.
- Higher Likelihood of Financial Recovery
Another advantage to a Collective Action lawsuit is that a judgment against the defendant may mean that the plaintiffs will actually see the money that they are awarded. If many plaintiffs sue the defendant around the same time, the earlier plaintiffs may be the only ones who receive damages if the defendant or business goes bankrupt. Collective Actions help ensure that damages are spread amongst plaintiffs.
- More Experienced Legal Representation
It is no small feat for a lawyer to take on a Collective Action lawsuit. The case may involve thousands of pages of documents, expensive expert witness fees and years of time to develop the case. Collective Action lawsuits may be handled by more experienced and competent lawyers who have gone through similar cases in the past. This allows plaintiffs to be able to have such representation that they may not have had if they pursued the claim on their own.
- Greater Efficiency
Collective Actions also benefit the judicial system. The case is determined by one judge in one court, so inconsistent verdicts do not become an issue. One claim will generally take less time than many similar claims tried at different times. The alternative would be to clog up court schedules, making it harder for other individuals to receive their day in court.
Is it likely that the Collective Action will Actually Be Pursued?
Because the Covid-19 pandemic has global scope across many countries it is possible that plaintiffs everywhere may have recourse against civil law jurisdictions regardless of the legal options in Bermuda. We are taking proactive litigation in light of this reality by mastering the principles of Collective Action representation. There are several characteristics that a lawsuit must have in order for it to be appropriate to litigate as a Collective Action, including the following:
The claims need to be similar, though not identical, so that it is more practical for one lawsuit to resolve them than numerous lawsuits.
- Similar Facts or Questions of Law
Additionally, the claims should be similar in nature, meaning that they should involve similar sets of facts or be asking the court to resolve similar questions of law. This way, the claims can all be handled together. It should not be necessary for the jury to have to hear each individual claim in order to weed out differences among them. This concept is referred to as commonality.
Certain plaintiffs will be named as class representatives. These individuals should be able to adequately represent the interests of the entire class in a fair manner. One plaintiff should not be able to use the lawsuit in a way that detrimentally takes advantage of other plaintiffs or that uses them to front the expense of the lawsuit.
- Common Claims
A Collective Action lawsuit may emerge due to a defective medical treatment that causes death or injury. If thousands of people took the treatment and suffered, the numerosity factor would be satisfied. If the people suffered from similar injuries, the commonality factor will be satisfied. If the class representatives adequately represent the interests of the entire group, all of the requirements for the group have been satisfied to certify them as a group.