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We on the Class Actions Team are asked this question almost every day. And rightly so! Failing to protect your own rights in a class action can prevent you from receiving compensation for the losses you suffered, even if compensation is paid to the class.

Take, for example, the settlement of a class action where a fixed sum of money has been recovered for the benefit of the class. Far more often than not, each class member will be required to “prove” his, her, or its individual damages in order to participate in the settlement distribution. If you don’t have the documentation or information needed to support your personal claim, it may be difficult, if not impossible, for you to obtain your rightful share of the settlement.

However, if you take a few simple steps to safeguard your rights early on, enforcing them later (i.e. proving your entitlement to damages) will be much easier.

What these steps are will, of course, vary with the type of class action you’re involved in. For this reason, Siskinds maintains separate webpages for all of our class actions, with FAQ sections that are tailored to address the common concerns unique to each proceeding. Every FAQ section will have a heading “What should I do to protect my rights?”, where class members (and those who think they may be class members) can find the most detailed guidance on this issue. But in short, the two most important things you can do to protect your rights are:

  1. Sign up to receive updates on your class action (for Siskinds’ class actions, you can register online on the dedicated class action webpage. You are also welcome to contact our team by phone or email); and
  2. Keep good records.

In a securities class action, the only records you may need to prove your claim are financial statements that evidence your purchase and sale transactions and share ownership. In most cases, these records can be readily obtained from your broker or financial institution. Similarly, in a price-fixing class action, the only records you may need to prove your claim are your purchase records. If you purchased directly from a defendant in the class action, you might be able to prove your claim through records maintained by the defendants and made available to you as part of the claims process. By contrast, the records required to prove a claim in a pharmaceutical class action tend to be considerably more extensive and difficult to obtain, particularly after a prolonged period of time.

An example: Siskinds is currently pursuing a proposed class action on behalf of infants born with birth defects that are alleged to have been caused by the drug, Zofran, and their family members. Zofran has been approved by Health Canada to treat the nausea and vomiting that can accompany chemotherapy, radiation treatment, and surgery, but Zofran was also prescribed “off-label” to treat morning sickness in pregnant women. Zofran has been linked to birth defects in children born to women who were treated with Zofran in their first trimester of pregnancy.

To protect your rights in this class action, Siskinds is advising that class members and potential class members keep detailed records of:

  • Zofran-related medical expenses not covered by your provincial health plan (ex. prescriptions, medical devices)
  • Zofran-related medical treatments, along with the names and contact information for each person that treated a class member
  • the times that Zofran-related injuries kept you from attending work or school
  • the expenses incurred for the benefit of a class member, including payment for services provided to the class member as a result of his or her injury (ex. nursing, housekeeping)
  • travel expenses of visiting a class member during his or her treatment or recovery
  • funeral expenses, if your loved one passed away because of a Zofran-related injury

Most importantly: Siskinds is asking class members and potential class members to reach out to us as soon as you can so that we can contact your health care providers and obtain relevant medical and pharmacy records. As mentioned above, these records become harder to collect over time and may prove vital to the success of your claim.

In the Zofran class action, as in any class action, if you have any questions about your individual claim and how to protect your rights, please contact a member of the Siskinds Class Actions Team. We are always eager to help you protect and enforce your rights.

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