Written by Rick Busby for Provost Umphrey Law Firm, L.L.P.
In 1966, dramatic revisions to Rule 23 of the Federal Rules of Civil Procedure ushered in the age of the modern class action lawsuit. Among other revisions, key changes to Rule 23 made the “opt out class action” the legal standard for governing how plaintiff classes are determined. In short, the new rule assumes a potential plaintiff to be part of the class whether they appeared in court as a named plaintiff or not, unless they “opted out” of the class action. If they do not opt out, they are bound by the verdict or settlement terms of the class action, and perhaps more importantly, potentially precluded from bringing their own individual suit.
Of course, if they do opt out and choose to file their own suit, they would then have to find an attorney with the necessary resources and experience willing to take on their case. Depending on the type of claim, potential costs of litigation, chances of prevailing and ultimately collecting a judgment, this path could prove difficult for individual plaintiffs.
Since the Rule 23 changes went into effect, a massive amount of law has been compiled. Today, the rules continue to shift as potential corporate defendants seek legal ways to escape the snares of class action lawsuits altogether. Successfully litigating a class action lawsuit on behalf of hundreds, if not thousands of plaintiffs, requires not only significant financial and legal resources, but also the kind of experience that can only be gained in the crucible of actual class action trial law.
Since 1969, Provost Umphrey has proven itself one of America’s most formidable class action law firms. Over the years, the legal team at Provost Umphrey has expanded its knowledge base and legal expertise into diverse areas of the law, including: pharmaceutical litigation, personal injury, products liability, motor vehicle accidents and defects, chemical exposure, prompt pay litigation, maritime law, consumer law, commercial litigation, employee benefits, civil litigation and on-the-job injuries.
Today, Provost Umphrey has a team of class action lawyers, each of whom has demonstrated the proficiency and experience necessary to play lead litigation roles in complex mass tort and class action suits. In recent years, Provost Umphrey attorney Chris Kirchmer served on the Plaintiff’s Steering Committee (PSC) for the Hormone Replacement Therapy class action, and was recently appointed to the PSC in the ongoing IVC Filter defective medical device class actions against Bard and Cook. Likewise, attorney Matthew Matheny has been appointed as co-lead counsel in the Gassoway v. Benchmark Energy Transport class action regarding defendant’s violations of the Federal Truth in Leasing Act. The plaintiff class has been certified and Matheny is litigating it in the U.S. District Court for the Southern District of Texas, while also representing class members in the ongoing concussion injury case against the NFL in a U.S. District Court in Pennsylvania.
Additionally, Provost Umphrey’s Guy Fisher is currently litigating a case against Phillip Morris under Arkansas’ Deceptive Trade Practices laws for illegally marketing Marlboro Light cigarettes as being lower in tar and nicotine than Marlboro’s regular cigarettes. Mike Hamilton is representing members in separate class actions involving overtime pay practices against Tyson Foods and the U.S Department of Veteran’s Affairs, as well as the NYC Employee Retirement Fund in a securities fraud case against Community Health System. Most recently, equity partner Bryan Blevins filed an action on behalf of lease owners in the Texas Eagle Ford Shale against Talisman Energy for systematic breach of oil and gas royalty payments.
In the fifty years since the Rule 23 changes, not only has Provost Umphrey become a nationally prominent plaintiff’s advocate for justice, the modern class action itself has evolved into an effective supplement to governmental regulation and enforcement. Today’s class action provides a meaningful way for a large group of individual plaintiffs, similarly damaged by the same defendant, to bring mass actions that force accountability and responsibility.
In many cases, media scrutiny adds additional public relations risks for defendants, especially in cases where the public safety is in play. In such cases, defendants may also be forced to change harmful or injurious conduct, often at great expense. Add to these costs the potentially huge financial settlements with members of an injured plaintiff class and it becomes clear that potential defendants should have sufficient financial incentive to avoid the jeopardy of litigation.
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