“Were you or someone you loved …?” This is the way the commercials usually start. Late night television has never been so ripe with attorneys letting you know exactly how to join a class action lawsuit against a drug manufacturer.
By the time the commercial airs, the lawsuit is already in full swing. The lawsuit is filed, the class certified, and the lead plaintiff chosen. In fact, it’s likely there is already a settlement in the case and the court is simply looking for all “victims” who could benefit from the settlement.
Class action lawsuits against drug manufacturers are nothing new. So how common are they?
A study published in the Journal of Empirical Legal Studies showed that 688 class action lawsuit settlements took place between 2006 and 2007, totaling almost $33 billion. The study provides a perfect summary of class action lawsuit history in the United States:
“Corporations fear them. Policymakers have tried to corral them. Commentators and scholars have suggested countless ways to reform them.”
Class action lawsuits against drug manufacturers are also the reason you see so many disclaimers when there is an advertisement for a prescription drug. Ever wonder why the commercial for drugs such as Vioxx have 10 seconds about the drug and then 20 seconds about the side effects? You guessed it … class action lawsuits. The manufacturers want to limit liability with these disclaimers in order to avoid costly litigation.
The settlement of a class action lawsuit does not necessarily preclude another one from being filed. No one knows this better than drug manufacturer AstraZeneca. There have been a number of Nexium class action lawsuits filed against the company and there is another one that is gearing up. According to recent studies, the acid reducing drug (used to treat heartburn and acid reflux) is alleged to cause chronic kidney disease. This is not good news for AstraZeneca who have already paid out $7.9 million and $20 million dollars for separate lawsuits involving the drug.
So who can file a class action lawsuit?
First, let’s get rid of the misnomer that anyone can file a class action lawsuit. In reality, a class action is started as a regular lawsuit with a request to “certify” it as a class action. Basically, this means that the lawsuit is filed on behalf of a single person (or small group of people), but the attorneys argue that there are many victims that should be included as beneficiaries.
As with all lawsuits, a drug class action lawsuit begins with a victim. Someone is harmed as a result of a prescription drug and the lawsuit is filed against the drug manufacturer.
So how does a lawsuit lead to a class action?
During the course of the lawsuit (either at the filing or as the case is progressing), it is determined that there are likely a larger number of people who were harmed by the defendant. It is at this point that it needs to be determined if there is a “class” (group of people who have been harmed) that can be compensated for the harm.
Once the court allows it to become a class action, the class is “certified” which basically means parameters are set to determine who is part of the class. This is normally where you see the disclaimers on the television saying that you must have used a drug during a certain time and what type of injury you must have suffered.
How do you get included in a class action lawsuit?
This is a great question and one I hear more and more every day. The simple answer is to be the lead plaintiff on the case. If you happen to be the first person to bring the issue to court, then you will be the person whose injury will be used as evidence during the course of litigation.
The more likely way to be included as part of a class action lawsuit is to be part of the class being represented. Each time a class is certified, it is a requirement of the court that people belonging to the potential class are notified. This would likely come in the form of a television ad (as previously noted) or a letter in the mail.
If you see the ad on television, simply follow the instructions to opt in as part of the class. Or, if you receive a letter in the mail simply fill in the information and send it in. That simple.
What happens with the proceeds of a class action lawsuit?
Once a settlement or judgment is entered, the proceeds are distributed according to the settlement/judgment. Distribution is normally made to the attorneys, plaintiffs, and then the certified class.
Attorneys normally receive the smallest percentage, but largest overall payout from class action lawsuits. They average around 25% of the amount awarded which is a small percentage. However, this can amount to millions of dollars and is substantial when compared to the amount awarded to individual members of the class.
Are you thinking of filing a class action lawsuit? Make sure you have all the facts prior to jumping in. Still have a question about class action lawsuits? Get free legal advice on the LawGuru main page Q&A form.
Dan Steiner is a veteran internet & social media marketing consultant who has worked with hundreds of brands throughout the years. He is also an active mentor and volunteer at startup events throughout California, and has been featured in a number of media outlets across the web. He is currently CEO & Founder at Avila Web Firm, an award winning web design and internet marketing firm based out of San Luis Obispo, California.