EB-5 集体诉讼

In contrast to a lawsuit where several investors are “pooled” together and join in a single lawsuit against an investment issuer, there is also the option of one or more investors filing a “class action” lawsuit where a single investor can serve as the representative of a “class” of all other “similarly situated” investors.

Class action litigation – especially in the EB-5 context where securities, corporate and immigration law intersect – is extremely complex and few attorneys are sufficiently well-versed to handle it. While it has its challenges, there are also tremendous benefits that come with filing a class action.

Not all cases may be subjected to “class” treatment. There are very strict and demanding obligations that one must meet before a court will allow a single person to stand in the shoes of many others and make legal decisions on their behalf. In addition to the “commonality” requirement noted in the “pooled” litigation page, class actions also require meeting several other criteria. These include “numerosity” (the size of the class must be of a sufficient size), “typicality” (the representative must be typical of all the other members of the class) and “superiority” (a class action must be a superior litigation method compared to others). Each of these criteria are nuanced and can be applied differently in practice.

If a case can be brought on a “class-wide” basis, the economics of doing so differ greatly as compared to a “pooled” litigation. First, by bringing the case on behalf of an entire class of investors – i.e., potentially all of the investors in a particular failed project – the plaintiffs have acquired leverage that can be met and often exceeds that of the investment issuer. In other words, by proceeding as a “class”, the plaintiffs’ case represents a much larger risk to the investment issuer than if only one or a group of investors filed suit. This can dramatically affect the litigation, add pressure on the investment issuer to settle and help resolve the case quicker.

Secondly, attorneys who specialize in class action litigation frequently accept engagements on a contingency basis, meaning they do not get paid unless they are successful. And while the expenses of litigating a class case can be high, the attorneys will frequently front them, meaning that the clients do not pay any of the expenses associated with litigation (such as court costs, depositions, travel, translators, expert witnesses, etc.). Only if the suit is successful will a typical class counsel get paid for their time and be reimbursed for the expenses they had to lay out. These amounts are taken from the total recovery. In addition, the attorneys will only get paid and reimbursed after the class has been informed of the amounts at issue and after the court has approved it. In other words, by filing a class action, investors bear little financial risk in filing the lawsuit and can rely on numerous court-ordered protections to make sure that the fees and expenses that are eventually paid (if the suit is successful) are reasonable and appropriate.

When specialized class counsel (who are also well-versed in immigration, securities and corporate law) agree to accept a complex and costly case on contingency, it is frequently a strong indication that the attorneys believe in the case and expect that it will be successful.