As with much of United States law, the United States class action regime has its roots in Early Modern English common law. Over the course of the seventeenth and eighteenth centuries, English law evolved to accommodate actions in which numerous parties’ interests were involved in order to more consistently and efficiently adjudicate disputes. These early mechanisms included bills of peace, which aggregated multiple suits premised on a common question, and creditor bills, which sought to jointly resolve the claims of multiple creditors against a single debtor. (Geoffrey C. Hazard, Jr et al, “An Historical Analysis of the Binding Effect of Class Suits”, 146 U. Pa. L. Rev. 1849, 1861–68 (1998).) Although United States legal institutions inherited these tools for claim aggregation, they were seldom utilised by United States courts (ibid at 1882, 1886).

Over the course of the nineteenth century, United States legal institutions gradually came to develop a more robust programme of representative adjudicatory mechanisms. In 1844, the United States Supreme Court issued its landmark decision in Smith v Swormstedt, clarifying that “where the parties interested are numerous, and the suit is for an object common to them all, some of the body may maintain a bill on behalf of themselves and of the others” (57 U.S. 288, 298, 14 L. Ed. 942 (1853)). In the ensuing decades, the frequency with which American courts heard class actions and their willingness to bind absent parties increased. This culminated in the 1912 revision to the Federal Equity Rules, which established that “[w]hen the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.” (Rules of Practice for the Courts of Equity of the United States Rule 38, at 11, reprinted in 226 U.S. 627, 659 (1912).) This regime remained in place until 1938, when the Federal Equity Rules were replaced with the Federal Rules of Civil Procedure, and Rule 38 was replaced with Federal Rule of Civil Procedure 23 (“Rule 23”).

In Rule 23’s earliest form, class actions bound absent class members only under certain circumstances, often requiring members to affirmatively opt in to the class in order to reap the benefits of the suit and be bound by its resolution. In 1966, Rule 23 was substantially overhauled in an effort to simplify its framework and align it with contemporary developments in decisional law. The single most impactful innovation was the addition of Section (b)(3), which permits class actions when “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy”. (David Marcus, “The History of the Modern Class Action, Part i: Sturm Und Drang, 1953–1980”, 90 Wash. U. L. Rev. 587, 603–09 (2013).) In contrast with the prior version of Rule 23, the revised Section (b)(3) did not require class members to opt in, facilitating large class actions in areas such as securities fraud, where prospective class members “are in a poor position to seek redress, either because they do not know enough or because the cost of suit is disproportionate to each individual claim”. (Charles Alan Wright, “Class Actions”, 47 F.R.D. 169, 179 (1970).)

The amendment of Rule 23 transformed the landscape of representative adjudication in United States law, and, naturally, it did not do so without controversy. Over the last sixty years, both critics and champions have continued to advocate for class action reform, animated by concerns such as the impact of class actions on commerce and individual litigants’ ability to co-ordinate a collective response to common injuries (Marcus at 611–14). While the regime established by the 1966 amendments to Rule 23 governs class actions to this day, this persistent tension has led to occasional changes and compromises regarding class action policy. For example, in 1995, the United States Congress passed the Private Securities Litigation Reform Act (PSLRA), which sought to deter frivolous securities fraud claims by shifting bargaining power in favour of securities class action defendants. For example, the PSLRA requires that discovery is stayed during the pendency of a motion to dismiss, provides a safe harbour for forward-looking statements such as certain projections and estimates, and caps monetary damages for certain claims. Perhaps most notably, in 2005 the United States Congress enacted the Class Action Fairness Act (CAFA), which made federal courts more available to litigants pursuing class actions as a means of ensuring that disputes affecting the citizens of multiple states are resolved within the federal system (and, in the view of certain observers, reining in state adjudicators who favoured class action plaintiffs). (Kristen L. Wenger, “The Class Action Fairness Act of 2005: The Limits of Its Text and the Need for Legislative Clarification, Not Judicial Interpretation”, 38 Fla. St. U. L. Rev. 679, 689–90 (2011).)

While the body of United States law governing class actions has developed independently for nearly 250 years, it has its origins in the framework provided by English common law.

The early 21st century has seen a parallel rise in robust multi-claimant litigation regimes internationally, particularly in Europe and Latin America, which are largely modelled on the common law class actions that have evolved in the United Kingdom and United States over the last several centuries. (Mark A. Behrens et al, “Global Litigation Trends”, 17 Mich. St. J. Int’l L. 165, 167–68 (2009).) While these younger systems of representative adjudication continue to develop, at present they remain less robust than their Anglo-American analogues; some commentators have suggested that their gradual development is animated, at least in part, by an interest in avoiding the frivolity and predation sometimes associated with United States class actions. (Jason Rathod and Sandeep Vaheesan, “The Arc and Architecture of Private Enforcement Regimes in the United States and Europe: A View Across the Atlantic”, 14 U.N.H.L. Rev. 303, 353 (2016).) For example, in contrast with many European regimes, United States class actions are unrestricted as to subject matter, may be brought by a private individual, and may seek a broad range of remedies (including substantial statutory punitive damages under certain circumstances).

Not applicable to the United States of America.

Class actions that proceed in United States federal courts are governed by Rule 23, which sets forth the threshold requirements and procedures for bringing a class action, as well as the framework for appeals of class certification decisions, appointment of class counsel, and other facets of class action litigation. Most state laws mirror Rule 23, whether through a parallel state statute or through state common law. In particular, Rule 23 sets forth the basic requirements that a suit must meet in order to proceed as a class action, as well as the procedures for certifying a class and conducting the class action once those requirements have been met. Rule 23 also provides the basic legal structure for assessing proposed settlements, voluntary dismissals, and compromises with respect to ongoing class actions, as well as appeals or certification decisions, the appointment of class counsel, and motions for attorneys’ fees. Class actions under this regime generally reflect an opt-out model, under which class members must affirmatively opt out of participation in the suit in order to avoid being bound by the judgment. Prospective class members routinely exercise this right, for example, by providing written notice memorialising this decision.

Although Rule 23 sets forth the core framework within which class actions are brought, many further federal and state statutes shape the nature and progression of class actions; over time, this legislation has been enacted towards the end of further articulating and adjusting this general structure, often with the aim of curbing what some view as the excesses of class actions in the United States. Some of these statutes are concerned with class actions as a general matter. For example, the 2005 Class Action Fairness Act was a programmatic legislative intervention aimed at managing the number and character of class actions permitted to proceed in federal court. Numerous other statutes address narrower and more targeted aspects of class actions. For example, the 1995 Private Securities Litigation Reform Act governs certain elements of securities fraud claims brought as class actions, such as the process for selecting a lead plaintiff, governing pleading standards, and the calculation of damages. Also, a number of statutes pursuant to which class actions are often brought, such as the Fair Debt Collection Practices Act (governing certain consumer protection actions) and the Sherman Antitrust Act (governing antitrust actions), provide for heightened damages, incentivising litigants to bring class actions under these laws.

Conversely, certain statutes governing particular claims or subject matter create express statutory exceptions to Rule 23 by barring any class actions from proceeding under that Rule with respect to causes of action for which they provide. For example, plaintiffs may not certify a class under Rule 23 with respect to certain claims brought pursuant to the Fair Labor Standards Act, the Age Discrimination in Employment Act, and the Illegal Immigration Reform and Immigrant Responsibility Act (respectively, barring class certification of certain claims for violation of employment law and asylum).

As a general matter, any claim may be brought as a class action so long as it satisfies the requirements of Rule 23 and no statutory or common-law exception applies. Class actions are common in particular areas where the nature of the claim lends itself to aggregation, such as:

• shareholder claims;
• consumer protection;
• antitrust;
• mass tort and product liability;
• civil rights;
• environmental law; and
• employment law.

These kinds of claims often involve allegations of harms that affect large numbers of potential claimants in similar ways.

Under United States law, the definition of a class action turns on the requirements contained in Rule 23 and its state law analogues. Under federal and state law alike, the core rules set forth no express definition of a class action; rather, they provide the set of features that must be present in order for a suit to proceed as such. For example, Article 9 of New York’s Civil Practice Rules and Laws, a state analogue to Rule 23 that tracks its structure, identifies requirements that must be satisfied in order for a litigation to proceed as a class action under New York law, but does not otherwise provide a definition for the term.

The same is reflected in major federal statutes governing class actions: CAFA expressly bases its definition of a “class action” on Rule 23: “any civil action filed under rule 23 of the Federal Rules of Civil Procedure or similar State statute or rule of judicial procedure authorizing an action to be brought by 1 or more representative persons as a class action” (28 U.S.C. Section 1332(d)(1)(B)). Rule 23’s requirements include four mandatory prerequisites as well as three broader criteria, at least one of which must be satisfied; these constraints are discussed in greater detail in 3.2 Overview of Procedure.

Class actions are initiated by the filing of a complaint. A single named plaintiff may bring a putative class action complaint, but a class has to be certified (generally later in the case after the named plaintiff files a motion for class certification) before the case can actually proceed on a class-wide basis.

In the United States, class actions may be brought in federal district courts or in trial-level state courts, depending on whether the appropriate jurisdictional requirements are met and which body of law applies. A class action may be brought in federal court if there is federal subject matter jurisdiction over the case, which may arise if either (i) the case asserts claims arising under federal law in accordance with United States Code (USC) Chapter 28, Section 1331, or (ii) there is diversity jurisdiction under USC Chapter 28, Section 1332. Diversity jurisdiction arises where the parties are citizens of different states and where the matter in controversy exceeds USD75,000.

If federal courts lack jurisdiction, a class action may be brought in any state court with jurisdiction to hear the case.

Claims asserted in class actions remain subject to limitation periods. The limitation period for any such claim, and any related tolling rules, vary depending on the claim and applicable law. The substantive legislation that creates a cause of action that can be brought on a class basis, such as the federal securities laws, may also include a statute of repose. Statutes of repose cannot be equitably tolled, and therefore impose an absolute bar against asserting a claim once the repose period has run.

The general framework for bringing a class action where a named plaintiff (or plaintiffs) brings claims on behalf of a group of absent plaintiffs is outlined below. Class actions where claims are asserted against a class of defendants are possible, but rare. Such “defendant class” actions are intended for situations where separate lawsuits against each individual defendant would be impractical or lead to inconsistent rulings, such as in cases involving numerous parties with a shared responsibility.

Filing of Complaint and Class Certification

The plaintiffs’ counsel files a complaint as a putative class action and lists one or more named plaintiffs who sue on behalf of a proposed class (or classes) of similarly situated plaintiffs. As noted in 3.1 Mechanisms for Bringing Collective Redress/Class Actions, in order for a litigation to proceed as a class action, the class must first be certified at a stage following the filing of the complaint. There are no particular rules for when certification has to be considered by the court, but a United States court will typically first consider motions to dismiss based on the adequacy of the pleadings and the legal adequacy of plaintiff’s theory, and only proceed to consider class certification if the motion to dismiss fails to dispose of the claims.

To obtain class certification, a plaintiff must show by a preponderance of the evidence that all four requirements of Rule 23(a) of the Federal Rules of Civil Procedure are met, and that the action meets the requirements of at least one of the three types of classes under Rule 23(b). Many jurisdictions also impose a requirement that the class be “ascertainable”, meaning that the members of the class may be identified by objective criteria and, in some jurisdictions, that there is a reliable and feasible way of determining who fits the criteria.

The four requirements of Rule 23(a) are:

• numerosity – that the class is so numerous that joinder of all members is impracticable (whether a class is sufficiently “numerous” will depend on the specific case, but generally a class of 40 or more individuals is enough);
• commonality – that there are questions of law or fact common to the class;
• typicality – that the claims or defences of the representative parties are typical of the claims or defences of the class; and
• adequacy – that the named plaintiff and their counsel will fairly and adequately protect the interests of the class.

The three types of class actions under Rule 23(b) are:

• inconsistent adjudication or limited fund actions – class actions brought where separate, individual actions would create a risk of either (i) inconsistent or varying adjudications that would establish incompatible standards of conduct for defendants, or (ii) substantially impairing or impeding class members’ ability to protect their interests because an adjudication of individual class members’ rights would, as a practical matter, be dispositive of the interests of other class members;
• injunctive or declaratory relief actions – class actions where defendants have acted or refused to act on grounds that apply generally to the class, such that final injunctive relief or corresponding declaratory relief is appropriate to the class as a whole; and
• monetary actions – class actions seeking monetary relief, where the court finds that questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods to fairly and efficiently adjudicate the controversy.

Courts frequently permit discovery into issues relevant to certification. Such discovery can be part of overall discovery in the case, but sometimes proceeds in a separate phase before merits discovery takes place. As part of class certification discovery, the parties typically seek discovery of evidence that would establish or rebut that the class meets the requirements of Rule 23 and that the proposed named plaintiff can properly represent the proposed class.

It should be noted that most class actions are certified not for litigation, but for settlement. In a settlement class, the defendant and would-be class counsel negotiate a resolution of class members’ claims before class certification. If negotiations are successful, the defendant and would-be class counsel move jointly for class certification and court approval of the settlement.

Selection of Lead Plaintiff and Class Counsel

A class action might be filed by a law firm that represents a named plaintiff (or a set of named plaintiffs), but multiple class actions alleging substantially similar claims might be filed by different law firms that represent different plaintiffs. In the latter scenario, the different cases get consolidated and the court must appoint class counsel unless a statute provides otherwise. Class counsel must fairly and adequately represent the interests of the class. Rule 23(g) presents explicit criteria and a procedure for appointing counsel to represent the class. The court must also appoint a lead plaintiff who is chosen to act on behalf of the entire class. Under the Private Securities Litigation Reform Act of 1995, which governs federal securities class actions, lead plaintiffs are selected based on objective criteria including the size of their financial interest in the case.

Opt-Out Mechanisms

In a class action seeking monetary damages and certified under Rule 23(b)(3) of the Federal Rules of Civil Procedure, class members do not affirmatively “opt in”. Instead, any class members who do not wish to participate in the lawsuit must take affirmative steps to remove themselves from the class upon receiving notice. In other words, they must “opt out” by providing notice to the court that they decline to participate.

Once the deadline to opt out has passed, all class members who have not opted out are considered to be part of the class, and the court can adjudicate their claims despite their absence.

Settlement

Any settlement, voluntary dismissal or compromise of claims, issues, or defences of a certified class – or a class proposed to be certified for settlement – requires court approval. In most jurisdictions, the court must approve any proposed class action settlement.

Whenever there is a proposed settlement in a class action case, Rule 23 requires the court to direct notice “in a reasonable manner” to every member of the class who would be bound by the settlement. Any class member may object to a proposal requiring court approval; the objection must state whether it applies to the objector, a subset or the entire class, and state with specificity the grounds for objection.

Under federal law, class action standing requirements mirror the standing requirements under Article III of the United States Constitution.

Plaintiff(s) must have:

• suffered an “injury in fact”, or a concrete, particularised harm that is actual or imminent, not conjectural or hypothetical, which
• is traceable to an action by the defendant(s), and which
• can be redressed by a favourable decision from the court.

The standing requirement applies both to the named plaintiff(s) and absent class members. The Supreme Court recently confirmed in TransUnion LLC v Ramirez (2021) that, to recover damages in a class action, every class member must satisfy the standing requirements of Article III.

One becomes a member of a class by satisfying the specific criteria defined by the court for the class in the class certification order, which essentially requires having experienced the same harm or having the same grievance as other class members. There is no specific numerical floor or ceiling as to the number of members in a class action, but the proposed class must meet the “numerosity” requirement under Rule 23(a) of the Federal Rules of Civil Procedures, as noted in 3.2 Overview of Procedure. In the Second Circuit, numerosity is presumed if the class contains at least 40 members. (Ansoumana v Gristede’s Operating Corp, 201 F.R.D. 81, 85 (S.D.N.Y. 2001), quoting Consolidated Rail Corp v Town of Hyde Park, 47 F.3d 473, 483 (2d Cir.1995).)

Under Rule 23 and the rules of most states, class actions generally proceed on an opt-out basis. Whether a class member may opt out of a class depends on the relief being sought.

• In an action for monetary relief, once a class is certified, class members are automatically part of the class and must affirmatively opt out, or they will be bound by the resolution of the class action litigation.
• In an action for injunctive or declaratory relief, or an action that seeks to prevent inconsistent adjudications with the same defendants or distribute limited funds, there are no opt-in or opt-out procedures, because the court’s rulings will impact all class members.

Procedurally, plaintiffs can move to join additional defendants through the following.

• Permissive joinder (Rule 20) – Rule 20 permits the joinder of parties when the claims arise out of the same events and involve the same legal questions. Joinder of parties under Rule 20 is not required and is often referred to as “permissive” joinder. Rule 20 allows the addition of defendants who were involved in the same transaction or occurrence that forms the basis of the class action.
• Necessary joinder (Rule 19) – Rule 19 states that a party is necessary to a lawsuit when one of two conditions arise: (i) the party must be present in order to award “complete relief,” or (ii) the party has an interest in the action so that their interest cannot be represented and protected without that party appearing in the lawsuit. In class actions, this might apply when a party’s absence would prevent complete relief to the class or expose existing parties to inconsistent obligations.

Procedurally, defendants can move to join additional defendants through the following.

• Impleader (Rule 14) – Rule 14 governs the procedures and requirements of impleader, also sometimes known as third-party practice. This allows existing defendants to bring in third parties who may be liable for all or part of the plaintiff’s claim. By impleading a third-party defendant, the original plaintiff is now engaged in a lawsuit against the original defendant; and the original defendant is a plaintiff against the third party.

The court has broad discretion to manage class actions and determine whether additional parties should be joined. It is generally easier to join parties early in the litigation, before significant discovery has occurred. It is necessary to determine whether jurisdiction may be acquired over the additional parties before trying to join them in a lawsuit. All standard jurisdictional requirements must be met for any additional parties.

In addition to the broad inherent authority that courts have to manage the litigations that are before them, as noted in 3.5 Joinder, courts have broad discretion to manage specific aspects of class actions, including in the following ways:

• determining whether a putative class action meets the certification requirements of Rule 23 upon the filing of a motion for class certification;
• appointing class counsel;
• when multiple putative class actions complaints are filed by different plaintiffs (represented by different counsel) within a short period of time, deciding which of the competing plaintiffs will be the lead plaintiff (and, consequently, which law firm will take the lead in the litigation) – it is possible for several plaintiffs to co-lead a case, with several law firms sharing a lead counsel role;
• when appropriate, dividing a class into subclasses (eg, when the class definition includes people with similar claims but divergent interests or positions);
• when appropriate, creating classes with respect to particular issues; 
• issuing orders that determine the course of proceedings or prescribing measures to prevent undue repetition or complication in presenting evidence or argument;
• managing communications with class members, including notices from the court to the class (eg, certification notice, settlement notice), communications from class members (eg, decision to opt in/opt out) and communications between the parties and class members;
• assessing reasonable attorney’s fees for class counsel; and
• approving class settlement.

The length of a class action proceeding will depend on the types of claims involved and the court in which the case is brought. As many class actions are settled before reaching a final adjudication on the merits, they may be concluded within a broad range of time, from a few months to a few years. Reaching finality generally takes a significant amount of time, including because there may be appeals at multiple stages.

Courts have extremely broad discretion to manage the schedule of a class action proceeding, and can set leisurely or aggressive schedules for discovery, briefing and trial. Courts can also require potentially dispositive issues to be briefed sua sponte. Parties can request that the court set deadlines for dates that the parties request or agree to, and can also ask that existing deadlines be modified or extended. Requests for reasonable extensions are usually granted.

The parties can seek summary judgment to avoid trial. A motion for summary judgment tests whether, based on all the evidence (including evidence obtained during discovery), there are any genuine issues of material facts and whether the movant is entitled to judgment as a matter of law.

In the United States, named plaintiffs seeking to represent a class often enter into contingency fee arrangements with their attorneys. If plaintiffs recover monetary damages – either through a judgment or settlement – their attorneys recover a portion of that amount consistent with Rule 23(h) of the Federal Rules of Civil Procedure. Typically, a contingency fee arrangement provides for a percentage of the total recovery to be paid to plaintiffs’ attorneys, or for a multiple of fees incurred based on the number of hours worked.

Third parties also sometimes fund class action litigation (or fund class members who opt out to pursue their claims separately). The practice has been rapidly growing, and is expected to continue its growth over the next several years. There is no current federal legislative restriction limiting commercial funding for class claims. Federal law prohibits the Legal Services Corporation, a non-profit corporation that is the largest single funder of civil legal aid in the country, from funding class action lawsuits, and some states have adopted similar restrictions on public funding for class actions. (See 42 U.S.C. 2996–2996l.)

As in any other civil litigation, parties to a class action or putative class action may also attempt to shift the costs of expenses and attorneys’ fees to the opposing party. Costs not including attorneys’ fees – such as travel expenses, filing fees, and other costs or fees – may be allowed to the prevailing party under Federal Rule of Civil Procedure 54(d)(1).

Attorneys’ fees are considered separately. Under Federal Rule of Civil Procedure 23(h), the court may award reasonable class action attorneys’ fees that are authorised by law or the parties’ agreement. A class member, or a member of the party from whom payment is sought, may object to the motion for attorneys’ fees, and the court may hold a hearing on the motion or refer the amount of the award to a special master or magistrate judge as provided in Rule 54(d).

United States discovery is conducted pre-trial, during a specified phase. Discovery in class actions lawsuit follows the same rules as in other civil litigation cases. Under Rule 26 of the Federal Rules of Civil Procedure, discovery must be relevant and proportional to the needs of the case, but the scope of relevance is typically interpreted broadly by United States courts. The traditional rules of privilege and confidentiality apply. A broad range of discovery mechanisms are permitted, including:

• document discovery;
• interrogatories;
• requests for admission; and
• deposition testimony.

Parties are also allowed to seek discovery on the specific issue of class certification. Courts generally set limitations on whether and how discovery may be sought from absent class members, but named class members are subject to the same discovery requirements as any other party to a litigation.

A class action plaintiff is typically entitled to the same remedies as would be available for claims brought as individual actions. Those remedies may include:

• monetary damages;
• injunctive relief;
• disgorgement;
• restitution;
• declaratory relief; and
• others available under law.

However, state law may sometimes limit the recovery available through class action lawsuits, depending on the jurisdiction and applicable law.

Settlement and other alternative means of dispute resolution are available for class action litigants, just as they are for individual claimants. However, settlements entered into in a class action case must be approved by the court, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. The court will hold a hearing to determine whether the settlement is the product of an “arm’s length” negotiation between the parties and whether the settlement is “fair, reasonable, and adequate”. Class members may object to a proposed settlement, and such objections will be considered by the court. Objections may be resolved through individual settlement(s). In “opt-out” class actions, class members may also choose to opt out of any settlement and file separate claims against the defendant.

Mediation is also often ordered by the court as part of the litigation process. Though parties are required to participate in court-ordered mediation, if applicable, the parties are not required to resolve their disputes through the mediation process – though some parties do so. If parties ultimately arrive at a settlement agreement through the mediation process, the court still must approve the settlement agreement as discussed above.

A final judgment in a class action with a certified class binds all class members. Class members bound by a judgment are precluded from asserting claims brought in the class action case, as well as any claims that arise from the same nucleus of operative facts.

If the class was not certified, only the named plaintiff(s) are bound by the judgment; other potential plaintiffs may bring further litigation claims.

Judgments delivered by the trial court may be appealed as of right, as with any other judgment in a civil litigation. Enforcement of a final judgment likewise follows the same procedures as non-class action litigation, subject to state law. Parties may levy an attachment or writ of execution against assets of reluctant debtors.

Over the last decade and a half, the United States Supreme Court has gradually tightened the standards around class certification. Recently, the Supreme Court clarified that all named plaintiffs must show Article III standing in order to recover damages, which has made certifying some classes more difficult.

Federal appeals courts have taken differing approaches on some of the most consequential recent class certification questions, including:

• whether standing must be evaluated prior to class certification;
• whether members of the class must be able to be identified in an administratively feasible way prior to class certification; and
• whether expert evidence must be evaluated for admissibility before being presented in support of class certification.

The United States Supreme Court has recently declined to resolve all three of these outstanding issues, leaving them ripe for future legislation or Supreme Court action.

As discussed above, class action waivers in arbitration agreements have traditionally been considered enforceable, particularly after a recent United States Supreme Court decision clarified that the Federal Arbitration Act pre-empts state law to the contrary. In response, recent legislative efforts to bar pre-dispute arbitration agreements in the employment context have emerged, as well as efforts to end class action waiver agreements, though they have not so far succeeded.

Despite efforts from some courts to create more rigorous class certification standards, class actions continue to proliferate, and cumulative settlement values for class action litigation have also been increasing over time. Third-party litigation funding has emerged as part of the narrative around class actions; the commercial litigation market continues to grow, and more companies face class action litigation in recent years than had previously.

Traditional types of class action activity remain key, including employment and labour class actions, and consumer protection class actions. Other areas have also been main drivers of growth, including class action litigation around PFAS, data breach or data privacy class actions, and class actions pertaining to ESG and “reverse discrimination” class action suits. Class actions with claims based on generative AI tools are also an emerging area, and likely to see further growth in future years.