For those of you new to lawsuits or new to the legal system outside of the military, joining a class action can come with a lot of questions. I’ve built a quick guide to show you the general flow of how a civil class action like ours works and what to expect through the process. Before we jump into it, it’s important to distinguish between the two main areas of the law: civil and criminal. Criminal law is what you see most commonly on TV. This is when the State charges someone/an entity with a crime and there are penalties including jail time (and sometimes monetary punishment) if found guilty. In civil law, an individual or entity seeks compensation for wrongs committed by another individual/entity. While we are arguing that the mandates are illegal, we are not and cannot charge the DoD with a crime!
So, how exactly does the civil process work then?
The Complaint
Civil lawsuits are initiated by filing a complaint, which you can think of as the North Star of your case. The complaint includes named plaintiffs (the individuals bringing the lawsuit) and others similarly situated (the class), identifies the defendants/who is being sued, factual allegations against the other party, and a statement of law that essentially explains the basis on which your claims are made. You can amend your complaint later to include new facts down the road as well, but generally your original complaint is what you can think of as ‘your lawsuit’.
Answers or Motions to Dismiss
There are two main ways for a defendant, in our case it’s the US Government, to respond when sued; they may file an answer or a motion to dismiss the case. An answer is when the defendant addresses all of the factual allegations made in the complaint with either admissions or denials of the facts. A motion to dismiss, which is how the government tends to respond, does not challenge the facts of the complaint, rather it says, even if every fact is true it does not give rise to a legal remedy. In essence, you can think of a Motion to Dismiss as a request from the defendant to have the case thrown out of court and not heard.
Once a defendant files either an answer or a motion to dismiss (MTD), the plaintiffs are given a chance to file a response to the MTD, to which the defendant then gets the final say with a reply. The initial stages of a lawsuit are very much a tennis match, with each side talking to one another through these documents. After the reply is filed, the Judge reviews all of the filings and either grants or denies the Motion to Dismiss.
An obvious question is, what are all the deadlines for these filings and how long do they take? Generally, each stage has a specific timeframe set by the Federal Rules of Civil Procedure, as well as local court rules, ranging from 30 days to two weeks. That being said, sometimes parties may ask for extensions to file and timelines are allowed to be adjusted. It is often good practice, if opposing counsel reaches out requesting more time, to not oppose their request. While the legal system in the United States is adversarial by nature, it is best when attorneys themselves are not adversarial. When a document is filed, the next deadline is also put on the docket. The docket is the tracker of everything that happens in your case. Whenever things are “added to the docket” they’ve been filed. With every filing, myself and the attorneys will keep you up to speed on the next deadline!
Class Certification + Class Actions
As you might have noticed, only the “named plaintiffs” were mentioned in the complaint. While the lawsuits are named Bassen, Botello, and Harkins, each of the lawsuits includes several named plaintiffs. Those who are not among the named are called class members. What’s the difference between a named plaintiff and a class member? A class member is an individual who has been harmed similarly to the named plaintiffs but is not listed by name in the initial complaint. This is essentially what a class action is. A class action allows for large groups of people who have been similarly harmed by the same defendants to litigate a single issue together, in one lawsuit, rather than thousands of individuals filing nearly identical lawsuits against the same defendant. When the complaint is filed, it is made clear by the plaintiff’s attorneys that these named plaintiffs represent several hundreds or thousands of people.
In order to establish that there is a large class of people who are similarly harmed, the plaintiff’s attorneys must file a class certification motion. A class certification motion establishes the class, essentially showing that there is the existence of a group of people who were harmed in the ways laid out in the lawsuit. Defendants can argue against this as well. Once a class certification motion is filed, they are allowed to file a response (the same type of motion mentioned earlier in the MTD/Answer process), and the plaintiffs then are allowed their reply. Once those motions are filed, it is up to the Judge to certify the class or deny.
In our particular cases, in the event that our class certification motion is denied, the Military Backpay attorneys are ready to file individual and smaller lawsuits on behalf of the class members, should they wish to continue pursuing their claims.
Discovery + Trial
The discovery and trial process include several other types of motions, timelines, and potential outcomes, and are worth their own post! Given that as of today, November 21, 2023, all of our lawsuits are still in the phase of exchanging those earlier motions (the aforementioned response and reply motions), I will be returning to write “Part II” of this post after the holidays!
If you have any questions about the process as explained above or general questions about class actions, please feel free to reach out to rachel.saran@militarybackpay.com and nickolas.kupper@militarybackpay.com
