To start a class action lawsuit, you identify a harm that a large group of people share, collect evidence that documents it, retain an attorney experienced in class litigation who files a complaint on contingency, and then convince the court to certify the case as a class action under Federal Rule of Civil Procedure 23. Everything before certification is preparation for that single judicial decision, and most of the technical work falls to your attorney. The person whose name goes on the complaint still carries real responsibilities from the first meeting through the final settlement hearing.
Confirm the Harm Affects a Large Group
Before anything else, the situation has to look like a class case rather than an individual one. A class action needs a group of affected people large enough that suing individually would be impractical, and at least one legal or factual question whose answer resolves the claim for everyone in the group.
There is no fixed cutoff for how many people are enough, but courts have generally found that a proposed class of more than 40 members satisfies the numerosity requirement.1Congress.gov. Class Action Lawsuits: An Introduction A group of 20 might qualify in unusual circumstances; a group of 200 almost certainly does. The common question requirement means more than similar experiences. The Supreme Court has clarified that there must be a shared question whose answer drives the outcome for the whole class.2Cornell Law School. Federal Rules of Civil Procedure Rule 23 If a company sold the same defective product to thousands of buyers, “was the product defective?” is the kind of question that works.
If your injury is idiosyncratic, or if the only people who share it are you and a handful of others, a class action is probably the wrong vehicle. Talk to a lawyer about an individual suit instead.
Gather Evidence Before You Call a Lawyer
The stronger the file you walk in with, the better an attorney can assess whether the case has legs. Pull together what you can:
- A written timeline of when the harm started, when you noticed it, and what happened in between.
- Contracts, receipts, warranties, billing statements, emails, and any written communication with the defendant.
- Photos or video if the harm involves a defective product or physical damage.
- Financial records showing what you paid, what you lost, or what it cost to fix the problem.
- Names and contact information for other people you know were affected the same way.
Your attorney will run a much deeper investigation once retained, including formal discovery that can force the defendant to hand over internal documents. This initial package is what gets the conversation started.
Find an Attorney Who Handles Class Actions
Class actions are expensive, complex, and often run for years. General litigation experience is not a substitute for specific expertise in this area. Your state bar association’s referral service can point you toward attorneys who focus on class work, and court records will show which firms have successfully certified classes in cases similar to yours.
Nearly all class action attorneys work on contingency. You pay nothing upfront. The firm fronts every litigation cost, including filing fees, expert witnesses, document review, and notice to class members, and recovers those costs plus a percentage of the total recovery only if the class wins or settles. If the case fails, you owe nothing for the attorney’s time or expenses.
The fee is not left to private agreement. Under Rule 23(h), the court must approve any attorney’s fee as reasonable, and any class member can object to the amount requested.2Cornell Law School. Federal Rules of Civil Procedure Rule 23 Courts typically approve fees in the range of 25% to 33% of the total settlement fund, though complex cases that require years of work sometimes result in higher percentages. The judge examines hours invested, the risk the firm took on, and the result achieved before signing off.
The court also evaluates the attorney independently as part of the certification analysis. Adequacy of representation requires that class counsel be qualified, experienced, and prepared to commit serious resources.2Cornell Law School. Federal Rules of Civil Procedure Rule 23 Your choice of lawyer is a proposal the judge can accept or reject.
Check the Filing Deadline
Every legal claim has a filing deadline, and missing it kills the claim regardless of merit. Statutes of limitations vary by claim type and jurisdiction: as short as one year for some fraud claims, as long as six years for certain contract disputes. Your attorney will identify the applicable deadline early, but do not wait to consult one.
One rule works in your favor once a case is filed. In American Pipe & Construction Co. v. Utah, the Supreme Court held that filing a class action pauses the statute of limitations for everyone in the proposed class, so putative members who relied on the class action to protect their rights do not lose their individual claims if certification is later denied.3Supreme Court of the United States. China Agritech, Inc. v. Resh That tolling rule does not, however, let a second class action be filed after the first fails certification. The Court drew that line in China Agritech v. Resh.
File the Complaint and Choose the Right Court
Your attorney files a complaint, the document that starts the lawsuit, in either state or federal court. The choice matters. The Class Action Fairness Act gives federal courts jurisdiction over most large class actions: those where the total amount in dispute exceeds $5 million (aggregating all class members’ claims together) and at least one class member lives in a different state than at least one defendant.4Office of the Law Revision Counsel. 28 U.S. Code 1332 – Diversity of Citizenship; Amount in Controversy Most significant class actions end up in federal court because those thresholds are easy to meet when thousands of people are involved.
Even if your attorney files in state court, the defendant can remove the case to federal court when CAFA’s requirements are met. Federal courts are generally considered to apply stricter standards at the certification stage, so defendants often prefer to be there. Where to file is a strategic decision that depends on the specific claims, the applicable law, and the judge.
Filing fees in federal court are set by statute at $350.5Office of the Law Revision Counsel. 28 U.S. Code 1914 – District Court; Filing and Miscellaneous Fees State court filing fees vary by jurisdiction and amount in dispute. In either case, the firm covers these costs as part of the contingency arrangement.
Win Class Certification
After the complaint is filed, the most consequential step in the entire lawsuit is the motion for class certification. This is the moment the case either becomes a class action or reverts to an ordinary individual suit.
The Four Prerequisites Under Rule 23(a)
Every class action must satisfy four requirements. All four must be met; failing any one sinks the class.
- Numerosity. The group is large enough that naming every plaintiff individually would be impractical.
- Commonality. At least one question of law or fact is shared across the class and its answer drives the outcome for everyone.
- Typicality. The lead plaintiff’s claims look enough like everyone else’s that pursuing the lead case fairly represents the group. A lead plaintiff injured in a fundamentally different way, or subject to a unique defense, may not qualify.1Congress.gov. Class Action Lawsuits: An Introduction
- Adequacy of representation. The lead plaintiff has no conflicts with other class members, and counsel is qualified and prepared to commit real resources.2Cornell Law School. Federal Rules of Civil Procedure Rule 23
Fitting Into a Rule 23(b) Category
Meeting the four prerequisites is necessary but not sufficient. The case must also fit into one of three categories under Rule 23(b). Rule 23(b)(1) covers situations where individual lawsuits would produce contradictory orders or effectively decide the rights of absent parties. Rule 23(b)(2) covers cases seeking an injunction or declaratory relief rather than money damages, and civil rights cases often proceed here. Rule 23(b)(3), the most common category for damages cases, requires the court to find that shared legal and factual questions predominate over individual ones and that a class action is the better vehicle than separate suits.2Cornell Law School. Federal Rules of Civil Procedure Rule 23 Consumer fraud, defective product, and securities cases usually land in 23(b)(3).
The Certification Fight
Your attorney prepares a detailed brief arguing that the case satisfies every Rule 23(a) requirement and fits within a Rule 23(b) category, backed by declarations, expert reports, and documents pulled through early discovery. The defendant fights this motion hard. Defeating certification is often the defendant’s top priority, because an individual claim worth $50 is not worth litigating while a class claim aggregating millions of those $50 claims is existential. Expect arguments that individual issues overwhelm common ones, that the lead plaintiff’s claims are not typical, or that damages cannot be measured on a classwide basis.
If the judge grants certification, the case officially becomes a class action, the court defines who is included, and notice goes out to class members. If certification is denied, the case can continue as an individual lawsuit for the named plaintiff, and your attorney may be able to redefine the class more narrowly and try again.
What Being the Lead Plaintiff Actually Requires
The lead plaintiff, also called the named plaintiff or class representative, is the person whose name goes on the lawsuit. This is not an honorary title. You will participate in discovery, sit for depositions, provide documents, communicate regularly with your attorney, and potentially testify at trial. Courts expect lead plaintiffs to stay engaged throughout years of litigation.
Your core legal duty is to represent the interests of every class member fairly. You cannot cut side deals that benefit you at the expense of the group, and you cannot settle on terms that favor your specific situation over the class as a whole. If the court finds a conflict of interest, it can replace you or decertify the class entirely.
In exchange for this work, courts sometimes approve a service award or incentive payment to the lead plaintiff on top of whatever the class receives. These awards typically range from a few thousand to tens of thousands of dollars, though courts scrutinize them to make sure they do not create an incentive to accept a weak settlement. Not every court allows them, and the amounts vary widely depending on how much time and effort the lead plaintiff invested.
After Certification: Settlement Is the Usual Ending
Certification is a milestone, not the finish line. The litigation enters its most intensive phase: full discovery, depositions, expert reports, and pretrial motions. The defendant will often move to decertify, arguing that evidence gathered during discovery shows the class does not hold together as well as the certification motion suggested.
Most class actions settle after certification rather than going to trial. The certification order shifts the defendant’s risk calculation sharply. A company facing a binding classwide judgment has strong incentive to negotiate, and settlement discussions frequently begin in earnest at that point, sometimes through a court-appointed mediator.
Any settlement must be approved by the court under Rule 23(e) in two stages. At preliminary approval, the judge decides whether the deal is plausible enough to justify notifying the class. Notice then goes to class members explaining the terms, how to file a claim, how to opt out, and how to object. Final approval comes after a fairness hearing, where the judge evaluates whether the settlement is fair, reasonable, and adequate, considering the quality of representation, whether the deal was negotiated at arm’s length, the adequacy of relief given the risks of continued litigation, and whether class members are treated equitably relative to each other. Requested attorney fees are reviewed at this stage as well.
One boundary worth flagging before your check arrives: settlement money from a class action is generally taxable, with a narrow exclusion under the Internal Revenue Code for damages received on account of personal physical injuries or physical sickness.6Office of the Law Revision Counsel. 26 U.S. Code 104 – Compensation for Injuries or Sickness Consumer fraud, discrimination, wage-and-hour, and contract settlements produce taxable income.7Internal Revenue Service. Tax Implications of Settlements and Judgments Talk to a tax professional if the amount is significant.