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Legal FAQs

What is a claim?
An individual can assert a claim (i.e. make a demand) for property, for damages, for money, or for enforcement of a right provided by law.

What is co-counsel?
Co-counsel is an attorney or group of attorneys from another firm working with Kershaw|Talley to represent clients.

What is a plaintiff?
A plaintiff is an individual or entity suing a defendant in court (i.e. the party initiating a lawsuit).

What is a defendant?
A defendant is an individual or entity the plaintiff sues for committing an alleged wrong (i.e. the party against whom relief or recovery is sought in a lawsuit).

What are damages?
Damages attempt to measure in financial terms the extent of harm a plaintiff suffered due to a defendant’s actions. The purpose of damages is to restore an injured party to the position the party was in before being harmed.

What are compensatory damages?
Compensatory damages is monetary compensation made to a plaintiff for loss or injury.

What are punitive damages?
Punitive damages, or exemplary damages, are awarded for particular types of wrongful conduct. Punitive damages punish the wrongdoer and act as a deterrent to others who may engage in similar conduct.  A plaintiff may receive all or part of a punitive damage award.

What is a settlement?
A settlement is an agreement between the parties to end a lawsuit. Cases usually end in a settlement rather than go to trial.  A settlement agreement may occur at any time, before filing the pleadings with the Court or during a trial.

What is a statute of limitations (SOL)?
The statute of limitations is the amount of time within which an individual can file a lawsuit. This period varies depending on the state. In most states, the statute of limitations is approximately one year or two years.

How much time do I have to file a lawsuit after I am harmed or my business is harmed? 
You must file a lawsuit within a certain period. The statute of limitations (SOL) is the amount of time after an individual is injured wherein they can file a lawsuit. Essentially, it is the cut-off date for your ability to file. The rule stating how much time you have to file your case depends on the type of case or claim, and the court where the filing occurs.

What is a tort?
Tort translates from the medieval Latin word tortum for ‘wrong, injustice’. A tort is negligence or an intentional wrong committed by an individual resulting in harm to another individual.

The individual committing the tort is liable (i.e. legally responsible) for harm the victim suffers. The victim can choose whether or not to sue. The party suing is the plaintiff. The party sued is the defendant.

What is a mass tort?
A mass tort is a tort resulting in injury to multiple victims. Mass torts involve numerous plaintiffs suing a single defendant or several defendants who allegedly acted negligently. Typical mass tort claims include:

  • Product Liability Claims: Plaintiffs sue for loss or injury from a dangerous product (e.g. defective or recalled medical device)
  • Pharmaceutical Claims: Plaintiffs sue for loss or harm from a dangerous drug (e.g. prescription or over-the-counter medicine)

What is multidistrict litigation (MDL)? 
Multidistrict litigation is when pending civil cases from various federal courts nationwide are transferred to one court and handled by one federal judge. A MDL helps the court system handle cases efficiently by conserving resources and promoting consistent rulings in lawsuits involving similar claims. Examples of MDL litigation Kershaw|Talley attorneys handle include: J&J, Plaintiffs Seek Arbitration In Sutures MDL – Law360 and William A. Kershaw Appointed to the Plaintiff’s Discovery Committee in the DePuy Orthopedics Multi-District Litigation.

What is a class action? 
A class action is a lawsuit allowing numerous individuals or entities to bring a legal claim against the same defendant(s) as a group (i.e. the class). The class must be similarly situated meaning they have similar problems and circumstances, and common legal and factual concerns because of the defendant’s actions.

An example of class action handled by Kershaw|Talley: Kershaw Cutter & Ratinoff wins $45.5 million judgment.

What is the difference between a class action and a mass tort? 
In mass tort litigation, each plaintiff has a complex individual claim resulting from distinct damages and circumstances. Each plaintiff receives a separate trial since they are treated individually. However, each plaintiff was allegedly harmed by the same defendant(s). Examples of cases involving mass torts could include birth defects caused by prescription drugs and injuries secondary to defective hip implants.

In a class action, the plaintiffs, known collectively as the class, are not treated individually. The class was allegedly harmed by the same defendant(s), but all members of the class are treated as one plaintiff.  There is only one trial for the entire class. Examples of a class action could include car’s fuel pump doesn’t work properly and employees not provided with meal breaks and rest periods.

What is a putative class action?
A putative class action is a potential class action. The procedure for filing a class action is filing suit with one or several named plaintiffs on behalf of a putative class. The putative class must consist of a group of individuals or business entities that allegedly suffered a common wrong. Generally, these cases involve a particular product defect or policy, or standard action on the part of a company applicable to all potential class members in a uniform manner.

An example of a putative class action handled by Kershaw|Talley: BMW Can’t Shake Class, State Claims In Water Damage Suit – Law360.

How does a class action become certified? 
After the summons and complaint are filed, we typically conduct discovery. Discovery is a process whereby each side is allowed to investigate the facts and evidence supporting the other side’s case. Following this initial round of discovery, plaintiffs typically file a “Motion for Class Certification.” This Motion describes the legal claims to be pursued on behalf of the proposed class, and how the proposed class meets the legal requirements for class actions. This includes, for instance, the requirements that there are a sufficient number of class members and that “there are questions of law or fact common to the class.”  If the court agrees that the proposed class meets these procedural requirements, the case is “certified” to proceed as a class action.

Who brings a class action?
An individual, a group of people, or an entity, known as the class representative, can bring a class action. Any class member who meets the requirements of typicality and adequacy may serve as a class representative. The class representative stands in for the rest of the class and sues on behalf of all class members. The class representative is also known as the “lead plaintiff” or “named plaintiff.”

What types of class actions may be filed?
Class actions are filed for the following reasons:

  • Compensatory or monetary damages
  • Resolving disputes over a limited fund, when the assets available to pay claims are limited and may not be sufficient to satisfy all claims (i.e. a court distributes proceeds from a fund insufficient to satisfy all class members)
  • Seeking declaratory judgment (i.e. the court declares the rights, duties or obligations of one or more parties in a dispute)
  • Seeking injunctive relief (i.e. court requires an individual or entity to perform or refrain from a certain action in order to prevent a potential injustice)

What is a Qui Tam Lawsuit?
Fraud claims are often referred to as “qui tam,” from the Latin phrase:
“Qui tam pro domino rege quam pro se ipso in hac parte sequitur”
“Who brings the action for the king as well as himself.”

A qui tam lawsuit is a lawsuit brought on behalf of the United States Government or State Governments harmed as a result of individuals or entities not delivering goods or services as promised. The “qui tam” statute originated during the Civil War to target and stop dishonest suppliers to the Union military. An individual acting as a “whistleblower” brings a case on behalf of the government.

The qui tam statute is also called the “False Claims Act”, the “Lincoln Law”, and the “Informer’s Act”.

What is a whistleblower?
A “whistleblower”, also known as the “relator”,  is a private individual who discloses their knowledge of past or present fraudulent activity against the federal government. Essentially, it is an individual “blowing the whistle” on a situation involving misconduct or fraud against the government. The whistleblower subsequently sues on behalf of the government to recover compensatory damages, civil penalties, and triple damages. If a qui tam lawsuit is successful, the whistleblower is entitled to a percentage of the actual damages and civil penalties the government recovers.  The percentage paid to the whistleblower can be tens or hundreds of thousands of dollars depending on the amount recovered by the government.

When can you file a Qui Tam Lawsuit? 
A Qui Tam Lawsuit may be filed due to:

  • Medicare Fraud
  • Defense Contract Fraud
  • Healthcare Fraud
  • Pharmaceutical Fraud
  • Lying to obtain government grants
  • Financial Aid Fraud


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