CIVIL PROCEDURE OUTLINE – SPRING 2007
I. CLASS ACTIONS
·Purpose: Efficiency, conserving judicial resources, protect individual rights (negative value goal) and promote corporate accountability
5 steps:
P files (“on behalf of others similarly situated”) and serves, D files Motion to dismiss or answers.
certification. (as early as practicable) usually limited disc. Is conducted. Not limited to pleadings, look at proof
court appoints class counsel. (in the interest of protecting absent class members) 23(g)
Notice: depends on what type of class. 23©(2) Prejudice and injunctive – may require notice. Can’t opt out of these. Everyone has to be here to guard from different judgments. Here, the goal is to protect everyone’s interests. Everyone’s interest is affected the same way. In injunctive classes, its’ really focused on the D. damages – must notify so they can opt out
interlocutory appeal 23(f). (of certification) not appeal as of right. You have to get court’s permission
FRCP 23(a): Requirements:
·Numerosity: joinder of all members is impracticable: (compare to rule 20) Ps are unidentifiable/future ps (common w/ injunctive relief), size, geography, negative value (not gonna sue for $1), size of individual claims
·Commonality: there are question of law or fact common to the class (not hard to reach) Permissive application. Sometimes even one significant common question is sufficient. The critical question is whether “differences in the factual background of each claim will affect the outcome of the legal issue.” To find commonality, focus on D’s conduct.
·Typicality: claims or defenses of reps are typical of the class. goal: ensure the rep is aligned with interests of everyone in the class. Typicality is usually found when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to provide the defendant’s liability.
·Fair and Adequate Representation: Hansberry reps will fairly and adequately protect the interests of the class: (1) embodies the due process concern that a class action judgment ought not to bind parties that haven’t literally had their day in court, unless, they have had a figurative day in court via adequate representation. (2) a defect in the adequacy of rep might leave the judgment open to collateral attack.
FRCP 23(b): Class types
·Prejudice Class: 23(b)(1) Separate actions could create a risk of:
1.Prejudice to D (rare): inconsistent results or incompatible standards of conduct for the opposing class, (does not refer to situations where D would have to pay damages to some claimants but not others. Rather, it applies when different results in in
to be encountered in the mgmt of a class action. (for superiority)
*If individual actions would cause prejudice that can be avoided by using the class action device, certification is said to create a “mandatory” class action and therefore the absentee can’t opt-out of the class.
·How does state law affect the predominance and superiority inquiry? Predominance: state law applicable to common issues may vary. Thus, just because the issues are common does not mean that the outcome of a trial would be equitable. One state doesn’t predominate over another. Every P must have relied on D’s statements. This impacts the predominance analysis says Castano.
Superiority: Puts too much pressure on D to settle, don’t know if you’re going to conserve judicial resources bc you don’t know if anyone will sue on this claim (immature tort), don’t even know if there are meritorious claims (fakers will join and make it a big deal), time efficiency – choice of law alone would take years, people have an incentive to sue ( no negative value problems), manageability would be a nightmare.
