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Class Action Lawsuits: a Mountain of Details

Posted By Charlene Sabini, PP, CLP, ALP, Friday, January 12, 2018
Updated: Thursday, January 18, 2018

Class Action LawsuitsA class action, class suit, or representative action, is a type of lawsuit where one of the parties is a group of people who are represented collectively by a member of that group.

A group of people with the same or similar injuries caused by the same product or action can sue a defendant as a group. Similar lawsuits brought by a group of people who suffered similar harm or losses are also called "mass tort litigation" and "multi-district litigation." 

Most of us have heard of class action lawsuits but perhaps not the term "mass tort." Class action is a specific type of legal action where a lawsuit is filed on behalf of an entire group of plaintiffs who share a set of damages, misfortunes, or injuries. Class actions cut down on the number of court cases that arise when many are harmed by the same problem. Mass tort lawsuits are different. Mass tort claims also attempt to reduce the number of court cases in the system, but they are handled differently by covering a much broader range of claim types. A class action suit is, however, a type of mass tort claim. Mass tort claims are often brought when a large number of consumers are harmed by things like defective drugs or defective products and can be a bit more complicated than class actions.

Those who seek justice in class action lawsuits may have also incurred injuries caused by medical devices, motor vehicles, or other consumer products. Injured parties have also been known to sue as a class regarding consumer fraud, corporate misconduct, securities fraud, and even employment practices. Mass tort litigation can be a multi-party lawsuit based on a massive accident, such as an airplane crash, in which many people are injured or widespread personal injuries have been caused by a defective product, such as a medical device.1 The class action, as we now know it, originated in the United States and is still predominantly a U.S. phenomenon, but several European countries with civil law have made changes in recent years to allow consumer organizations to bring claims on behalf of consumers.2

In a typical class action, a plaintiff sues one or more defendants on behalf of a group, or class, of absent parties. In a traditional lawsuit, one party sues another party for redress of a wrong, and all of the parties are present in court. Class action differs from this. Instead of each injured individual bringing his or her own lawsuit, the class action allows all the claims of all class members—whether they know they have been injured or not—to be resolved in a single proceeding.3

The antecedent of the class action was what modern observers call "group litigation," which was common in medieval England from about the year 1200 onward. These lawsuits involved groups of people either suing or being sued in actions at common law, and the groups were usually based on existing societal structures like villages, towns, parishes, and guilds. It was easier to handle group cases because handling individual cases with the methods of transportation and communication available at that time in history was awkward. In his writing, Stephen C. Yeazell, From Medieval Group Litigation to the Modern Class Action, reveals, however, that from 1,400 to 1,700 group litigation began its evolution from being the norm in England to the exception. The development of the concept of the corporation led to the wealthy supporters of the corporate form becoming suspicious of all unincorporated legal entities, which in turn led to the modern concept of the unincorporated or voluntary association.4 

So, group litigation in England slowly but eventually came to be replaced by individual litigation. The system had shifted so drastically that by the end of the 1700s, cases involving groups had actually become difficult to process. Due to developing laws, group litigation had become virtually nonexistent in England after 1850. Although it died off in England, it survived in the United States due to the efforts of Joseph Story, an associate justice of the U.S. Supreme Court in the early 1800s.5 He imported it into U.S. law through summary discussions in his two equity treatises as well as his opinion in West v. Randall, 29 F. Cas. 718 (R.I. 1820).  However, Story did not necessarily fully endorse class actions, because he "could not conceive of a modern function or a coherent theory for representative litigation.”6  Regarding West v. Randall, he more specifically said,


It is a general rule in equity that all persons materially interested, either as plaintiffs or defendants in the subject matter of the bill ought to be made parties to the suit, however numerous they may be.7 

Originally, then, American courts followed the example of our British brethren, using their power in equity to avoid multiplicity of actions where numerous individuals sued a common defendant for the same legal wrong. In 1842, the Supreme Court promulgated Equity Rule 48, “officially recogniz[ing] representative suits where the parties were too numerous to be conveniently brought before the court, but refused to bind absent parties to any resulting judgments.” For convenience, therefore, and to prevent a failure of justice, a court of equity permitted a portion of the parties in interest to represent the entire body, and the decree bound all of them the same as if all were before the court. In 1912, that Equity Rule 48 was rewritten, becoming Rule 38. The new rule maintained representative actions, but additionally allowed absent parties to be bound by judgments entered thereunder.8 

Certain class action law cases (and mass torts) have changed U.S. History:

The State of Tennessee v. John Thomas Scopes


Also known as the “Scopes Monkey Trial,” this famous class action suit challenged the constitutionality of the Butler Act, a 1925 Tennessee law that made it unlawful to deny the divine creation of man as written in the Bible and to teach the theory of evolution instead.


When the State of Tennessee passed the Butler Act, the American Civil Liberties Union (ACLU), in one of this organization’s earliest battles, asked for volunteers to deliberately teach Charles Darwin’s theories in a public Tennessee schoolroom. They found their representative in biology teacher John T. Scopes, who agreed to teach the forbidden subject in his classroom. Scopes was indicted in May of 1925 and the trial began in June that year.


Although the trial raised awareness and acceptance of the theory of evolution and of academic freedom, the Butler Act would not be repealed in Tennessee until 1967, and nationally in 1968, after subsequent civil action lawsuits that challenged the laws again.9


The ability to teach evolutionary theory in public schools continues to touch nerves and be challenged.


Brown v. Board of Education of Topeka, 347 U.S. 483 (1954):

This landmark decision declared that segregated or “separate but equal” schools were unconstitutional. This was viewed as a watershed moment in the civil rights movement and as one of the most important decisions of the U.S. Supreme Court.

In 1954, major sections of U.S. schools were segregated along racial lines due to the 1896 Plessy v. Ferguson, 163 US 537 (1896), decision which permitted segregation at the state level as long as the separate schools were equal. Thurgood Marshall, who was appointed in 1967 as the first black justice to the Supreme Court, led the class action lawsuit for the plaintiffs.

The related class action, a consolidation of five similar cases in four states, was eventually filed on behalf of Oliver Brown, the father of a child who was prevented from enrolling in a whites-only school in Topeka, Kansas. Brown claimed that the segregated school system in Topeka violated the Equal Protection Clause of the fourteenth amendment to the Constitution because the black and white schools were not and never could be equal to each other. The Court handed down its decision on May 17, 1954, and agreed unanimously with Brown, with Chief Justice Earl Warren delivering the decision.10

Roe v. Wade, 410 U.S. 113 (1973):

This case is one of the most socially controversial and high-impact pieces of legislation in the U.S. It was actually a consolidation of three civil action lawsuits being argued in different states at the same time. The 1973 Supreme Court decision rendered abortion legal until the end of the first three months of pregnancy and declared that restricting a woman’s right to choose abortion was an invasion of her privacy, being covered under the ninth and fourteenth amendments to the U.S. Constitution.

The decision, which struck down an 1851 Texas statute that criminalized abortion unless the life of the mother was endangered, came under immediate attack by opponents and still faces sensitive challenges at the state level.

The representative plaintiff in the class action, Norma Harvey, who later identified herself as the “Roe” in Roe v. Wade, wanted to end her pregnancy but could not afford to travel to one of the other U.S. states that had already legalized abortion. After many years speaking as a champion of the 1973 decision, Harvey told the press in 1995 that she had changed her views about abortion and was now “pro-life.”11   The issue is far from resolved and is still hotly debated across the country.


But interesting, modern class action lawsuits are bubbling away as we speak . . .


Example: “Abbott Laboratories is currently facing lawsuits (a mass tort) alleging that the drug Depakote can put unborn children at risk for serious birth defects if mothers take the drug while pregnant. Of all antiepileptic drugs, Depakote is the most likely to cause serious malformations in unborn children, according to the lawsuits. Despite allegedly knowing that Depakote has been linked to heart defects, developmental delays, and certain deformities, lawsuits claim that Abbott did not take proper steps to warn doctors and women about these risks . . .  the FDA has also warned women that Depakote may cause developmental delays and/or lower cognitive scores. Most recently, the FDA changed Depakote’s pregnancy category for the prevention of migraines from a ‘D’ to an ‘X,’ meaning that the risk of its use in pregnant women clearly outweighs any possible benefit.”12  


Example: “People are suing Bristol-Myers claiming that Abilify caused them to develop compulsive gambling habits and that the drug company owes them money as a result. Several studies have found a possible link between compulsive gambling and Abilify use, while the FDA has at least 30 reports of this side effect from Abilify users. Additionally, both Europe's and Canada's labeling for Abilify includes the risk of pathological gambling – but no such information exists on U.S. labels . . . The suits claim that Bristol-Myers Squibb failed to adequately test the drug and failed to warn both patients and doctors about this serious side effect.”13 

Example: While hip implant components have previously been made from a range of materials, including ceramic and plastic, metal-on-metal implants put metal parts in direct contact with other metal parts. This can lead to corrosion as the metal parts abrade each other and release tiny bits of debris into the body. The FDA issued a safety communication on January 17, 2013, warning that metal-on-metal hip implants have the potential to shed tiny metal particles into patients' bloodstreams, resulting in a variety of serious adverse effects. This can reportedly result in bone or tissue damage, device failure, or metallosis, which develops when dangerous levels of chromium and cobalt accumulate in the bloodstream. Of the six manufacturers facing litigation, only three have issued recalls over their artificial hips, leaving prospective patients at risk for receiving an allegedly defective device.14  


Manufacturers currently involved are: DePuy, Smith & Nephew, Stryker, Wright Medical, and Biomet. These manufacturers are now the subject of thousands of lawsuits.


Most metal hip manufacturers, with the exception of Wright Medical, are facing multi-district litigations (MDLs) over their products. In an MDL, all federally-filed cases are transferred to one court before a single judge to help save time and money and to ensure consistent rulings after a large number of people have been injured by the same product.15 


So, as a paralegal or legal assistant working in a class action legal environment, where do you fit in and what sort of tasks or duties might you be expected to accomplish? Some basics could include reviewing and organizing a vast array of documents for use in such things as investigations. You also may prepare written discovery and depositions. You may be asked to organize facts so your legal team can emerge with a sensible strategy. It’s not unusual for paralegals and legal assistants to be facing mountains of documents—even warehouses full of documents—and often a staggering number of pages of information from several law firms. You might well help coordinate discovery and maintain case files. It would be extremely helpful to have knowledge of litigation document management software, a couple of all-important database programs, as well as the use of trial aids and skills at assembling books of witness documents. Computer skills are clearly a must for the class action legal assistant.

If you are a legal assistant or paralegal with an interest in class action litigation (and some part of your firm practices in this area), volunteer to assist in those cases. Get in on the ground floor. And be ready to see legal matters in amplified detail.  ///

  1. Class Action Cases, n.d. Retrieved from http://litigation.findlaw.com/legal-system/class-action-cases.html
  2. Class Action, https://en.wikipedia.org/wiki/Class_action
  3. Ibid.
  4. Ibid.
  5. History of Class Action Lawsuits, n.d. Retrieved from https://classactionlawsuitcenter.com/history-of-class-action-lawsuits/
  6. Class Action Lawsuit, n.d. Retrieved from  https://www.revolvy.com/topic/Class%20action%20lawsuit&item_type=topic
  7. About Class Actions, (February 19, 2015). Retrieved from http://wweinsteinlaw.com/aboutclassactions.htm
  8. Class Action: An Overview, n.d. Retrieved from https://www.law.cornell.edu/wex/class_action
  9. Vito, (January 8, 2016). Retrieved from https://imgaudit.com/2016/01/how-class-action-lawsuits-have-changed-the-u-s-history/ 
  10. Lisa, (November 20, 2012). Retrieved from http://www.iveyengineering.com/class-action-lawsuits-2/ 
  11. Ibid.
  12. Depakote Lawsuits Allege the Drug Can Cause Birth Defects, n.d. Retireved from  https://www.classaction.org/depakote
  13. Abilify Lawsuits for Compulsive Gambling, n.d. Retrieved from https://www.classaction.org/abilify-compulsive-behavior-lawsuit
  14. Defective Medical Devices, n.d. https://www.classaction.org/hip-replacement-lawyers
  15. Ibid.

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I Am Eula Mae

Posted By Kathy Sieckman, PP, PLS-SC, ACP, Tuesday, December 12, 2017

I Am Eula MaeWhile we were at the NALS Conference in Norfolk, Virginia, this past October, one of the things the Board brought up was a future campaign using the hashtag “#IAmEulaMae.” This hit my heart straight on and I was overcome with emotion, excitement, and enthusiasm about the Board’s vision using that hashtag. The more I thought about it once the Conference was over, the more I realized that the many, many years of my NALS membership, the certifications I have earned, the leadership positions I have held, and the truly amazing people I have had the opportunity to meet all meant that I am NALS. I am the legal support profession. I am Eula Mae.


In 1929, Eula Mae Jett was a legal secretary in Long Beach, California. As she was filing something with the court one day, the clerk mentioned to her that she and her friends should get together and figure out the court rules and how to correctly file things. This seemed to spark something in Eula Mae and she did gather her colleagues to meet to discuss things impacting their career. As word of the success of these meetings spread across the country, other chapters were started. Twenty years later, NALS was born to bring these groups together for state, regional, and national meetings. This was the beginning of networking and education for legal support professionals across the country.


Eula Mae epitomizes a legal support professional who was proud of her career, who was interested in learning as much as she could to improve her career, who loved what she did, and who made new friends and acquaintances she could call on with questions to help her do her job even better. Eula Mae obviously didn’t just have a job—she had a career and obviously it was a career she was very proud of.


I never had the opportunity to meet Eula Mae, but I find many similarities in our parallel lives.


Eula Mae was employed in the legal field. I’ve been employed in the legal field since 1980.


Eula Mae filed documents in court. I’ve physically filed documents in court.


Eula Mae met with other legal secretaries to learn things to help her career. I’ve attended meetings and conferences across Arizona and the US since 1985 that have undoubtedly helped my career.


Eula Mae’s vision created an association that saw the value of certification. I see the value of certification.


Eula Mae was proud of her career. I am proud of my career.


Eula Mae wore dresses, stockings, heels, and gloves every day to work on her typewriter without fax machines, photocopiers, email, internet, webinars, college paralegal courses, and electronic court filing. And that’s where the similarities end, although I did work with a fancier wardrobe and did work without fax machines, email, and internet.


So even though I now work with all the conveniences of the modern law office, I still feel the spirit of Eula Mae. Her vision that became NALS has changed my life. Has it changed yours? I truly believe that Eula Mae lives in every NALS Member. That spirit is why we’re all NALS Members. This is the introductory article in a series that will continue with different ways the Spirit of Eula Mae lives on in NALS and in each of us. So take a deep breath, think about how much like Eula Mae you really are, and be proud of this career you’ve chosen. #IAmEulaMae

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Using Foreign Words in Legal Writing Is Not Necessarily Your Pièce De Résistance

Posted By Kathy Sieckman, PP, PLS-SC, ACP, Tuesday, December 12, 2017

Grammar Nuggets: LanguageA good friend asked if I would write on the use of foreign words/languages in English writing, particularly whether we should include the foreign characters, accent marks, etc. in our legal writings.


The basic answer is sometimes.


If a foreign word has become a part of the English language, like résumé, it does not need to be italicized. NOTE: I am using italics here just to emphasize the words I am talking about. Some words and phrases will retain the diacritical marks, such as the accent marks in résumé, vis-á-vis, and the circumflex in paper-mâche, but the words are not italicized.


According to The Bluebook A Uniform System of Citation, foreign words and phrases that are used often in legal writing and are familiar to the legal community are not italicized, but foreign words and phrases that are very long, obsolete, or uncommon Latin, should be italicized. For instance, do italicize:

  • Ignorantia legis neminem excusat ("ignorance of the law does not excuse")

But not:

  • quid pro quo

Note, however, that id. is always italicized (including the period), but e.g. is only italicized when it is used as a signal as in See, e.g., Smith v. Brown. In re and ex rel. and other such procedural phrases are always italicized.


Avoid using Latin or other foreign words and phrases where it is not necessary and where an English word or phrase will work just as well and that will avoid the issue altogether; but when you do use them, if it is well known to the legal community or well-integrated into the English language, retain its diacritical marks, but do not italicize.

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Foster Care: A History

Posted By Charlene Sabini, B.A., PP, CLP, ALP, Wednesday, November 29, 2017
Updated: Monday, December 18, 2017

The history of foster care in the United States had beginnings elsewhere and at other times. Very early documentation of children being cared for in foster homes can actually be found in the Old Testament and in the Talmud. Caring for dependent children was established as a duty under law. Early Christian church records also show children were boarded with "worthy widows" who were paid by collections from the congregation.1 The Quran also carried on this tradition of caring for orphans and widows. It was English Poor Law, however, that lead to development and eventual regulation of family foster care here in the United States. In 1562, these laws allowed the placement of poor children into indentured service until they came of age.2 Even though indentured service permitted exploitation, it was an improvement over almshouses where children didn't learn a trade and were exposed to unsanitary conditions and abusive caretakers.

At this time, children were placed into these homes because their parents or guardians were deceased rather than because they had been abused in their home, as child abuse was largely socially accepted and legal. Today, foster children are usually removed from a home due to abuse rather than because they were orphaned.3 In 1853, a minister named Charles Loring Brace, founded the Children's Aid Society in New York City, where he observed many immigrant children sleeping in the streets. Brace subsequently initiated the Orphan Train Movement where over 150,000 orphaned children in New York City were sent by train to farms across the country, primarily in the Midwest. Some children were treated with love and respect in these locations, while others were treated as slaves, even abused, and were often found to be working overly long hours. But as the emphasis was on providing abandoned children some semblance of family life, Brace's system became the foundation for today's foster care system.4

Slowly, the foster care program began to take shape. Our government became interested and involved itself in finding and providing homes to homeless children. Even licensing evolved to ensure the children were taken care of in a respectable, responsible, and caring way.

In the early 1900s, social and governmental agencies began to actually monitor and supervise foster parents. The practice of placing a child with just any willing family was over. These agencies took the child’s welfare and needs into account and began a system of reports and records.5

Along the way, common sense suggested that emotional security was vital to children’s health and welfare, and science produced evidence to support this concept. Research on attachment and loss and studies of maternal deprivation in infancy influenced policies of placement and generated a more pro-adoption climate after 1940.

By 1950, statistics showed that children in family foster care outnumbered children in institutions for the first time. By 1960, there were more than twice as many in foster care. By the late 1970s, the foster child population exceeded 500,000, roughly where it stands today. Foster placements could be numerous and lengthy in practice, but in theory they were temporary because children maintained ties to their birth parents. Between the 1930s and the 1970s, as foster care became more common for more children, adoptions increasingly involved practices like matching, policies like confidentiality and sealed records, and placements of infants and toddlers rather than older children. Adoption aspired to the wholesale substitution of one family for another, unlike foster care.6

The present foster care system within the United States has taken on the nature of a complex bureaucratic apparatus. As Bass, Shields, and Behrman have written: "When entering foster care, or the 'child welfare system,' a child does not enter a single system, but rather multiple systems that intersect and interact to create a safety net for children who cannot remain with their birth parents;" and the organizations involved in this larger system include "state and local child welfare agencies, courts, private service providers, and public agencies that administer other government programs."7 Within the court system, an attorney or qualified person known as a court appointed special advocate (or CASA) is often designated to assure that the foster child's voice is heard when it is relevant to decision making.8

So, the history of child welfare in the United States can be characterized by a continuous shift between family preservation and child safety. “The 1970s saw efforts to reduce children’s time in foster care and expedite paths to permanency. The 1997 Adoption and Safe Families Act (ASFA) (P.L. 105-89) marked the first occasion where issues related to permanency were explicitly stated in legislation. . . . This law connected safety and permanency and demonstrated how each factor was necessary to achieve overall child well-being. While ASFA made clear that child safety was paramount, it also provided a new way of defining permanency for children and youth in foster care. The law specified that states had to improve the safety of children, promote adoption and other permanent homes for children who needed them, and support families. ASFA also required child protection agencies to provide more timely assessment and intervention services to children and families involved with child welfare. Additionally, ASFA paved the way for the legal sanction of concurrent planning (simultaneously identifying and working on a secondary goal such as guardianship with a relative) in states by requiring that agencies make reasonable efforts to find permanent families for children in foster care should reunification fail.” 9

In 2015, over 670,000 children spent time in U.S. foster care. On average, children remain in state care for nearly two years and six percent of children in foster care have remained there for five or more years. Despite the common perception that the majority of children in foster care are very young, the average age of kids in foster care is nearly 9.  In 2015, more than 20,000 young people aged out of foster care without permanent families. Research has shown that those who leave care without being linked to forever families have a higher likelihood than youth in the general population to experience homelessness, unemployment, and incarceration as adults.10

Many social workers currently report that most children enter the foster care system as a result of abuse and/or neglect, and that drug abuse by parents is a major reason why it is not possible for some parents to care for their children in an effective way. For the past several decades, the foster care system has confronted substance abuse, AIDS, and other adult epidemics that trickle down to children.11 Those of us who work in juvenile law see drug and alcohol abuse as a dominant factor in removal of children from the homes in which the abuse is evident.

1.National Foster Parent Association, http://nfpaonline.org/page-1105741.
2.  Ibid.
3. Foster Care: Background and History, http://family.findlaw.com/foster-care/foster-care-background-and-history.html.
4. Ibid.
5. TLC Child and Family Services, http://www.tlc4kids.org/blog/admin/09-05-2014/brief-history-foster-care, courtesy of Adoption.com, September 5, 2014.
6. Ellen Herman, The Adoption History Project, http://pages.uoregon.edu/adoption/topics/fostering.htm, February 24, 2012.
7. Bass, Sandra, Margie K. Shields, and Richard E. Behrman, "Children, Families, and Foster Care: Analysis and Recommendations." Children, Families, and Foster Care, 14.1 (2004). Web. 23 Jul. 2015, http://www.princeton.edu/futureofchildren/publications/journals/article/index.xml?journalid=40&articleid=132§ionid=865.
8. https://www.ultius.com/ultius-blog/entry/the-history-of-the-foster-care-system-in-the-united-states.html, August 12, 2015.
9. https://www.childwelfare.gov/topics/permanency/overview/history/
10. http://www.childrensrights.org/newsroom/fact-sheets/foster-care/
11. Herman, loc. cit.

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Figuring Out the Dress Code

Posted By NALS Editorial + Marketing Board, Wednesday, November 29, 2017
Updated: Monday, December 18, 2017

Dear Eula Mae:

I’m new in the legal field and proud to be legal secretary at a small law firm. There are only ten of us. We do not have a human resources office, only a paralegal who also serves as our office manager. I want so much to be the consummate professional and want to look professional too. I don’t know where to start or what will work as a daytime wardrobe. I’m new to the workforce and only have a few pairs of dark slacks and kind of floaty tops that seem to look more casual than my co-workers’ dressy outfits. I need some advice.

--Concerned in California


Dear Concerned:

What a great question! Remember that you now are a representative of your office and need to look the part as well. You could visit with the office manager about what is expected in your wardrobe at work. Before you do that, look around at the professionals in your office.

Like most professions, the clients must have absolute confidence in hiring your firm. If you look sloppy, it gives the appearance that the work will be sloppy. Try to be neat, clean, and polished. That means muted colors (navy, gray, black, white), well-fitting clothes (not tight), and clean (no pet hair, lint). If you look around in your office, you will see that there is no cleavage, no visible tattoos, no face piercings, and no sandals.

Dressing as a legal professional doesn’t take a lot of money, just some carefully chosen pieces that you can blend in to the wardrobe that you have. Start with a navy or black jacket, a skirt and slacks to match. These muted colors can be brightened with a colorful blouse, a colorful scarf, or a little jewelry. Choose your best color and try to find different shirts and blouses in your color to mix-and-match with your suit. Add in a cardigan and some gray, brown, or khaki slacks or skirts and you are done. Shoes need to be reasonable and cover the feet, such as black flats and black low heels. 

When you look good, you feel good and you will do good work too. Good luck in your new chosen profession. I’m sure you will do well.

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