To start a class action lawsuit, first check whether you signed an arbitration agreement with the company, then confirm your situation meets the requirements of Federal Rule of Civil Procedure 23, hire a class action attorney (almost always on contingency), and have that attorney file a complaint that asks the court to certify the case as a class action on behalf of everyone in your situation. That is the short version of how to start a class action lawsuit. The longer version has several steps where a promising case can stall or fail, and knowing them before you make your first call saves time.
Check Your Contract for an Arbitration Clause
Before anything else, look at whatever contract, terms of service, or employee handbook governs your relationship with the company. Many consumer and employment agreements include arbitration clauses paired with class action waivers, and the Supreme Court has held those waivers generally enforceable. In AT&T Mobility v. Concepcion (2011), the Court ruled that the Federal Arbitration Act prevents states from requiring class proceedings when an arbitration agreement forbids them. Epic Systems v. Lewis (2018) extended that principle to employment agreements, allowing employers to require workers to resolve disputes individually in arbitration.
If your contract contains a class action waiver, you likely cannot bring a class action at all. This is the single most common reason a potential class action dies before it starts. Search your paperwork for words like “arbitration,” “class action waiver,” or “individual claims,” and bring anything you find to your attorney consultation so they can assess whether any exception applies.
Confirm Your Case Meets the Rule 23 Prerequisites
Federal Rule of Civil Procedure 23(a) sets four prerequisites every proposed class must meet. Fail any one of them, and the case cannot proceed as a class action.1Legal Information Institute. Federal Rules of Civil Procedure Rule 23 – Class Actions
Numerosity
The affected group must be large enough that joining every member individually would be impractical. Rule 23 sets no fixed minimum, but courts commonly treat 40 or more members as sufficient. Smaller groups can qualify if joining every member would be especially difficult for geographic or other reasons.
Commonality and Typicality
Class members must share common questions of law or fact, and the lead plaintiff’s claims must be typical of the group’s claims. The core issue has to be the same for everyone. If a pharmaceutical company sold a defective drug, the common question might be whether the company knew about the defect, and the lead plaintiff’s experience with the drug needs to closely mirror what other class members went through. A lead plaintiff whose situation is unusual will fail typicality.
Adequacy of Representation
The court must be satisfied that the lead plaintiff and their attorneys can fairly protect the entire class’s interests. Judges look for conflicts of interest between the lead plaintiff and other class members, and they evaluate whether the attorneys have the experience and resources to handle complex litigation. A lead plaintiff with a side arrangement with the defendant, or lawyers who have never handled a class action, will fail this test.
Identify Which Type of Class Action Applies
Meeting the four prerequisites is necessary but not sufficient. The case must also fit one of three categories under Rule 23(b), and the category shapes how the case proceeds and what rights class members have.1Legal Information Institute. Federal Rules of Civil Procedure Rule 23 – Class Actions
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li>Rule 23(b)(1) applies when separate individual lawsuits could produce conflicting court orders that the defendant cannot follow simultaneously, or when one person’s individual case could effectively determine the outcome for everyone else.
- Rule 23(b)(2) covers situations where the defendant treated the entire class the same way and the appropriate remedy is a court order requiring the defendant to do or stop doing something. Civil rights cases frequently fall here.
- Rule 23(b)(3) is the most common category for money-damages class actions. The court must find that shared legal and factual questions predominate over individual differences and that a class action is the best available method for resolving the dispute. Most consumer fraud, defective product, and securities cases are certified under this provision.
The distinction matters. In a (b)(3) class, members receive individual notice and can opt out to pursue their own claims. In (b)(1) and (b)(2) classes, opting out is generally not permitted because the purpose is a single, binding resolution.
Gather Documents Before You Meet an Attorney
A productive first meeting starts with preparation. Write a timeline of events: when the problem started, when you noticed it, and what you did about it. Attorneys process facts faster when they see the sequence laid out clearly.
Pull together the contracts, terms of service, or agreements you signed with the potential defendant. These matter both for understanding your claims and for checking for an arbitration clause. Add receipts, invoices, and billing statements that show your financial losses. Save every communication with the defendant: emails, chat logs, letters, and notes from phone calls. Correspondence where the company acknowledged a problem or made promises it did not keep is particularly valuable. Photos, screenshots, or videos documenting a defective product or the harm you experienced complete the picture.
Find and Hire a Class Action Attorney
Class action litigation is a specialty. Look for a firm that has actually taken cases through certification and settlement or trial, not one that handles them occasionally. State bar association referral services can point you toward qualified attorneys, and a firm’s case history tells you more than its website copy.
Most class action attorneys work on contingency, so you pay nothing upfront. The attorney takes a court-approved percentage of whatever the class recovers. Research covering cases from 1993 through 2008 found the mean fee award was about 23% to 25% of the class recovery, though the percentage tends to be higher in smaller cases and lower in larger ones.2United States Courts. Attorneys Fees and Expenses in Class Action Settlements 1993-2008 Several federal circuits use 25% as a benchmark. Because the fee comes out of the total recovery, every class member has a stake in whether the court approves a reasonable fee.
Initial consultations are often free. Come ready for an honest conversation. A good attorney will tell you if the case does not meet the class action requirements and may suggest alternatives, such as an individual lawsuit or joining an existing class action.
Understand What Being Lead Plaintiff Involves
The lead plaintiff, sometimes called the class representative, files and drives the lawsuit on behalf of everyone in the class. The court must approve this person’s appointment, confirming they can adequately represent the group’s interests.1Legal Information Institute. Federal Rules of Civil Procedure Rule 23 – Class Actions
The role is a real commitment. You work closely with the attorneys, sit for depositions where the defendant’s lawyers question you under oath, and respond to document requests during discovery. You also participate in strategic decisions, including whether to accept a settlement offer. Courts deny certification if the lead plaintiff appears disengaged or unreliable.
Lead plaintiffs sometimes receive a service award from the settlement fund in recognition of their time and effort. These awards vary widely and are entirely within the court’s discretion. Most federal circuits permit them, though the Eleventh Circuit has held them impermissible as a matter of law, creating an ongoing split among the appellate courts. Where allowed, the amount depends on factors like how actively the lead plaintiff participated and the size of the overall recovery.
File the Complaint and Move for Class Certification
Once your attorney takes the case, they draft and file a complaint that officially begins the lawsuit. The complaint lays out the factual allegations, the legal basis for the claims, a description of the proposed class, and names you as the class representative.
After filing, the attorney moves for class certification. Rule 23 directs the court to make this determination “at an early practicable time,” but the process often takes months. Both sides submit extensive briefing and evidence. The defendant will argue the case fails the Rule 23(a) prerequisites or does not fit any Rule 23(b) category. The judge reviews everything and issues a ruling. If the court certifies the class, the case moves forward as a class action. If it denies certification, your attorney can file a revised motion addressing the deficiencies the judge identified, or petition the court of appeals for permission to hear an immediate appeal within 14 days of the order.1Legal Information Institute. Federal Rules of Civil Procedure Rule 23 – Class Actions
Even without certification, your individual claim survives. Under the American Pipe doctrine, the statute of limitations is paused for would-be class members from the time the class action complaint is filed until certification is denied, allowing individual lawsuits to follow within the remaining limitations period. The Supreme Court clarified in China Agritech v. Resh (2018) that this tolling protects only individual claims, not a new class action.
Watch the Statute of Limitations
Every legal claim has a filing deadline, and class actions are no exception. The applicable statute of limitations depends on the type of claim: fraud, product liability, securities violations, and employment disputes all have different deadlines under federal and state law. If the deadline passes before a complaint is filed, the claim is gone. Your attorney will evaluate the applicable deadlines early, and timing is one of the main reasons not to delay your initial consultation.