By: Micheline Chevrier
It can be many years before a class action lawsuit is resolved. If a settlement is reached and approved by the Court, the claims process is the final step to concluding the matter. It, too, can also take several months or a few years to complete. The kind and extent of evidence a class member needs to prove a claim will impact the complexity and timing of the claims process.
The Claims Administrator
A claims administrator is an impartial third-party that plays a significant role in the class action settlement process and who must also be Court-approved. The claims administrator disburses the settlement funds to eligible claimants in accordance with the claims protocol. Prior to the distribution of any funds, a notification process will take place to notify as many potential class members as possible. In the notice, the claims administrator is identified. Some of the most frequently used claims administrators in Canadian class actions are Collectiva, Deloitte, Epiq, MNP, and RicePoint.
The claims administrator must first verify that the claimant is indeed a class member who meets the definition of an eligible class member. To establish eligibility, a claimant must provide certain information and evidence.
What Types of Evidence is Required to Make a Claim?
The type of evidence required to make a claim depends on the nature of the case and claims protocol. A few examples:
In price-fixing class actions, the claims application process is typically quite streamlined. For example, the online claim system for the Canadian Microsoft Software Class Action Settlement does not require proof of purchase unless an individual is claiming more than the specified amount. For smaller claims, an individual must click and formally attest to having purchased the Microsoft PC software listed during a specific period. For larger claims, the claimant must upload receipts, product identification number, product key number, license agreement, or other credible written evidence.
Privacy Breach Claims
Privacy breach class actions frequently involve data breaches and cyberattacks. In the Yahoo Data Breach Class Action, it is alleged that Yahoo experienced multiple data breaches between 2013 and 2016 resulting in the loss of account holders’ personal information. While the claims process has not yet begun in Canada, the long form notice provides insight as to what will be required to obtain compensation for the different types of claims available. The evidence includes documentation of out-of-pocket costs incurred due to the data breaches, proof of paid user services and/or proof of small business user services.
Product Liability Claims
Product liability class actions usually involve defective or dangerous consumer products, ranging from cars to pet food to medical devices. Most claims processes are relatively simple, unless the settlement involves compensation for personal injury. In DePuy BC ASR Revision Class Action Settlement, for example, some patients were harmed after having one of the two allegedly defective hip replacement systems implanted. To get a portion of the settlement fund, claimants had to provide the name of the hospital and surgeon who performed the surgeries, date and place of the procedure, product identification stickers, medical history, discharge summaries, and operative reports.
Historical Wrong Claims
In historical wrong class actions, the claims process tends to require greater details and documentation which carries the risk of potential re-traumatization for the claimant. Consider the Sixties Scoop Class Action Settlement which involved a claim against the Attorney General of Canada resulting from a government policy to ‘scoop up’ Indigenous children from their families and put them in foster care or adoption in non-Indigenous homes. It is alleged that these children lost their cultural identities and suffered gravely, both mentally and physically. In this case claimants had to provide proof of status under the Indian Act, adoption history or proof of wardship, and relevant dates. Some class members had to request disclosure of their child services file in order to prove their eligibility. Others had to first obtain Indian status (the Clinic assisted one such client). In addition, there was an optional section for the individual to share his or her story to assist the claims administrator in evaluating the claim if records could not be located.
Assistance with Making a Claim
Depending on the nature of the case and the claims process, some individuals will seek assistance in submitting their claim. It is not uncommon for class counsel to charge a fee for this service (in addition to the monies received for their work in reaching a settlement with the defendant(s)). Lawyers may ask class members to sign a standard form agreement, also known as an “individual contingency retainer agreement”, to represent them in the claims process. Typically, the fee is around 33% of what the individual claimant receives in compensation, again, subject to various factors.
In other class actions, such as the Sixties Scoop Class Action, the settlement provides that the class action lawyers will assist class members at no additional cost.
The Clinic provides claims assistance services free of charge to class members. If you or someone you know is seeking assistance in submitting a claim, we encourage you to reach out to us!
While not all class actions are alike, there are similarities in the types of evidence required to submit a claim, depending on the nature of the case. Class members should pay close attention to the type of evidence that will be required of them to submit a claim. This will ensure a seamless application once the claims process commences.
Please check back soon to find a growing list of class actions currently in the claims process listed on our website, including the following: