Class/collective actions in the United States: overview, Practical Law Country Q&A...

Standing

5. What are the rules on standing for bringing a claim in a class/collective action?

Definition of class
To assert their claims on behalf of a putative class, the representative claimants must define the class that they seek to
represent. The class definition must be sufficiently precise so that the court can objectively determine who is and is not in the
class. In addition, the class must be defined in a way that membership in the class is not dependent on a later merits
determination of the lawsuit. Thus, a class can be defined as “everyone who purchased Product X from the defendant”, but
not as “everyone who the defendant defrauded”, as the court would not be able to determine who was in the class until after
the underlying merits in the case had been decided.

Class definitions commonly focus on the defendant’s alleged conduct and include geographic, temporal, or other objective
parameters that permit the court to ascertain the members of the class. Subclasses asserting claims on behalf of a common
sub-issue generally must meet the same definition requirements.

Potential claimant
To serve as a named claimant, who in the US often is called a “class representative”, a potential claimant must satisfy at least
two fundamental requirements (see Question 6). First, the putative claimant must be a member of the class that it seeks to
represent. Second, the putative claimant must itself have standing to assert its claim.

In the US, standing is generally required in all lawsuits, whether class action or individual action. The doctrine entails several
considerations but, in essence, requires the litigant to demonstrate that it is entitled to have the court decide the merits of the
dispute. The answer will often depend on the claimant’s relationship to the defendant’s alleged conduct and whether the
claimant suffered harm.

Determining whether a claimant has standing often depends on the specific claims at issue and the court in which the action
is filed. In 2016, the US Supreme Court reaffirmed that named claimants in putative class actions must allege and prove that
their purported injury is both “concrete” and “particularised” (Spokeo, Inc v Robins, 136 S Ct 1540, 1548 (2016)). Cases
decided after Spokeo have generally reinforced this standard. For example, in June 2020, the US Supreme Court ruled in
Thole v US Bank N.A., 590 US __(2020) that participants of defined-benefit pension plans lack standing under Spokeo’s
standards if the participants cannot establish that they have experienced individual financial loss or the imminent risk thereof.
However, courts continue to refine the precise contours of the US’s standing doctrine in the class actions arena, and some
decisions in various jurisdictions cannot easily be reconciled with one another.

In some circumstances, a named claimant may not have standing to assert a claim in federal courts but it may have standing
to assert a claim in a state court. For example, in antitrust litigation, an indirect purchaser of a good or service generally
cannot sue the remote seller for alleged damages in a federal court (Illinois Brick Co v Illinois, 431 US 720 (1977)). Some
states, however, have provided an avenue for indirect purchasers to assert their claims by passing “Illinois Brick repealer
statutes”, which expressly allow indirect purchasers to sue remote sellers under state law.

Claimants outside the jurisdiction

The representative claimant can bring claims that arise under federal law on behalf of absent claimants residing in other

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