How many is enough? How many is too many? People often ask me how many people you need for a class action. They seldom ask whether there are too many for a class action, but sometimes that’s also an important question.
Class actions tend to fall into two categories: cases where each class member has a sizable claim and cases where the individual damages are quite small. The former include personal injury class actions where the individual damages can run into the hundreds of thousands of dollars and environmental cases where there are property losses with damages than can be equally significant. Small damage cases include securities class actions where an individual shareholder may have lost only a few hundred or a few thousand dollars.
So, the question of too few or too many class members starts to come into focus. If the individual claims are sizable, a class action can be certified with a dozen or more class members. In our AMO contact lens solution case, for example, Justice Butler of the B.C. Supreme Court certified the case even though there were only between 6 and 20 people in British Columbia where were affected by the defective product: //www.callkleinlawyers.com/class/amo/certification_26may09.pdf. If, however, this had been a securities class action, where each person suffered a loss of only a few thousand dollars, the case clearly would not have made sense.
Class actions where the individual losses are small have to involve large numbers of class members for the lawsuit to be economic. Conversely, if the damages are large and each class member has to prove his or her individual loss, a lawsuit with too many class members is simply too large to be certified. In an Ontario tobacco class action that covered thousands of individuals, for example, the court estimated that if the case was certified and proceeded to individual damage assessments, the case would take 1,000 years of litigation. The judge did not see this as manageable and did not allow the case to go forward as a class action.