Being the Representative Plaintiff

• 
  Matthew Baer
  Lawyer

Who is the representative plaintiff in a class action?

The representative plaintiff is the named plaintiff (or plaintiffs) in a class action pleading (claim), although technically they do not become the representative plaintiff(s) until after a successful certification motion where the Court approves them as such. It is not possible for a class action to start without someone stepping forward to be the representative plaintiff so it is a very important role in class members receiving access to justice.

How do I become the representative plaintiff?

Typically a class action is commenced after one or more people contact a lawyer with a claim that would be addressed well as a class action (typically smaller claims where many people have the same claim against one or more large companies). When counsel decides to take on a class action, they get retained by one or more of these individuals to commence the action.

In certain types of actions (ex. pharmaceutical cases), a family member of the primary plaintiff will also be named as a representative plaintiff to represent the interests of family members of those harmed by the actions of the defendants.

Responsibilities of being the representative plaintiff

Being a representative plaintiff is not overly onerous. The representative plaintiff has the following responsibilities:

a) to retain competent counsel;

b) to become familiar with the issues to be decided by the court;

c) to review the Statement of Claim and any amendments;

d) to attend, if necessary, with counsel to be cross-examined on any affidavits;

e) to attend, if necessary, with counsel for examination for discovery;

f) to assist, if necessary, in the preparation and execution of an affidavit listing relevant

documents;

g) to attend, if necessary, with counsel at the trial;

h) to receive briefings from counsel form time to time;

i) to express opinions on strategy to counsel;

j) to express opinions to counsel if offers to settle are made;

k) to express opinions to counsel and to the court if settlement positions are formulated;

and

l) to assist in the preparation of and sign affidavits in support of any settlement or other

motions. The representative plaintiff also has the responsibility to ensure other class members are notified if the proceeding is certified as a class action. A plan for notifying class members is typically provided for in the proposed litigation plan which counsel files as part of the certification materials.

Costs

Class actions are typically undertaken on a contingency fee basis. That means the representative plaintiff is typically not responsible for the fees and expenses incurred by their counsel. If the action is successful, counsel for the plaintiff will make an application to the court for approval of legal fees and expenses which are typically paid out of (or on top of) the recovered compensation.

In some jurisdictions, a representative plaintiff could be responsible for the defendants’ costs if the action is unsuccessful. In those circumstances, the representative plaintiff typically receives an indemnity from counsel or some sort of funding arrangement is put in place which includes a costs indemnity.

Perks of being the representative plaintiff

The representative plaintiff does not typically receive any extra amount for being the representative plaintiff. Typically the amount the representative plaintiff receives in a successful class action is based on a number of factors (ex. the injury suffered) just like for any other class member. That being said, because the exact circumstances of the representative plaintiff are known to counsel, there is a greater likelihood that any settlement will be sure to apply to the representative plaintiffs circumstances.

In some circumstances, an application can be made to the Court for the representative plaintiff to receive additional compensation for their role as being a representative plaintiff. This typically occurs in circumstances where the representative plaintiff went above and beyond the typical role of a representative plaintiff.