A.Operation of the class action
Certification
Prerequisites to a class action [FRCP 23(a)]:
1. There must be a class (FRCP 23(c)(1)(c))
i. Not 1. too broad or 2. too specific or 3. too vague or 4. too amorphous (unclassifiable)
2. The class representative must be a member of the class (not written but implied in FRCP 23(a))
3. Joinder of all members must be “Impracticable” (FRCP 23(a)(1))
Numerosity
25-40 people is were you start considering other facts to determine if there is a class
< 25=no class / > 40=class
Commonality: Questions of law or fact common to the class (FRCP 23(a)(2))
The representative claims or defenses “are typical” of the class (FRCP 23(a)(3))
*Falcon (the telephone company race discrimination case)
Fairly and Adequately protect the interest of the class (FRCP 23(a)(4))
Both the class representative and the attorney (court can only control class rep.)
Different for securities fraud cases. There the class rep is who ever has the largest financial stake in the case as long as they fulfill the rest of the factors.
Action must be maintainable. Does the class fall within 1 of the 3 categories (23b)?
Prejudice Class Action [notice is permissive] (FRCP 23(b)(1))*** WTF? B1: If tried separately, there can be contradicting results and can therefore prejudice one of the D or the P.
Injunctive and Declaratory Relief [notice is permissive] (FRCP 23(b)(2)
Damage Class Actions [notice is Mandatory because membership is permissive] (FRCP 23(b)(3))
1. Common question of fact that predominate over individual claims
2. Class action method must be superior to other ways of handling lawsuit (Joinder)
Once above 7 are met:
1. Judge must certify the class as soon as practicable
2. If certified, judge must:
i. Approve a description of the class
ii. Define the substantive issues that the suit will consider
iii. Appoint a class representative
3. Decision to certify class is appealable as an interlocutory (temporary) order
Notice (parts of due process) *this is all based on weather a decision is fair to a party, giving them the opportunity to be heard*
1. Membership is Mandatory: Prejudice & Injunctive/Declaratory
a. Because membership in class is mandatory
b. Notice is permissive because the decision will effect all of the member of the class anyways
c. As it affects all Δs in the same way so they can do nothing to alter the suit by their participation or lack of participation
2. Membership is Permissive: Damages
a. Because parties can opt out to protect their own rights
3. Only named rep needs to be diverse and meet AIC unless $5mil is satisfied. See §1332.
Class certification not always good:
Increases frivolous claims
Higher likelihood of finding D liable because multiple Ps
Pressures D to settle (publicity, bad press for D)
P might spend years and lots of $ pursuing a class action and then judge can decide it’s not a class up until the end of the suit. Retroactive. Unfair to P
2) Order regulating the conduct of pretrial and trial proceedings
a) Individualization: courts must determine if D liable, if so, calculate damages, distribute award
i) Bifurcated trial: single trial for liability, then if liable, trial for damages and distribution OR
ii) Sampling: judge selects some cases at random to adjudicate, those Ps get actual awards and absent Ps get statistically computed award
iii) Fluid class recovery: general reward given some other way to benefit all class members
(1) Cab co. has to lower all cab fares for a while
(2) Toshiba to pay all class members, any left over money to charity to provide laptops to needy kids
3) Settlement
a) Members must get notice and second chance to opt out
b) Protect due process rights
c) Protect judgment from collateral attack
d) Members can object, but no one member’s wishes dispositive
i) “in-kind” payments: coupons, discounts. Sometimes acceptable
4) Attorney’s fees
a) Based on percentage of award or
b) Hourly rate
II. Class Action and Jurisdiction
B. Subject-Matter Jurisdiction
a. 2005 Congress passed a minimal div statute: a class action has diversity jurisdiction so long as one P is diverse from one D and AIC exceeds $5 million for class
b. Court can deny jurisdiction under 6 factors (balancing test)
· Such cases can be removed
C. Personal jurisdiction
· P’s do not all need to fall under PJ because their interests are properly represented by the class representative
i. PJ is mainly for the D
· Choice of law concern: state law that has the most interest in the case and does not conflict with other state laws that have interests in the case too law
Class Actions and Jurisdiction
SMJ (Diversity Suits)
Personal Jurisdiciton
Phillips v. Shutts: class action Ps do not need to meet minimum contacts like a typical D. minimal notice and option to opt out is sufficient
I. Discovery
Def: Any pre-trial devices (or the collection of) that can be used by a party to obtain
facts & info about his case in order to assist the party’s preparation for trial
1. Purpose for discovery:
i. To preserve relevant information that might not be available at trial
ii. To ascertain and isolate those issues that actually are in controversy between the parties
iii. To find out what testimony and other evidence is available on each of the disputed factual issues
1. Want to discover all the possessive parties factual claims and to prove or disprove the elements of the claim.
A. Scope Rule 26:
i. Discovery is any thing that is:
1. reasonably calculated to lead to the discovery of admissible evidence OR
2. any relevant material.
a. The material itself need not be admissible at trial.
ii. Limitations on information:
1. Attorney-client privileges (an absolute privilege)
a. Purpose is to encourage full and frank communications between the attorney and client. (Upjohn)
b. The elements:
i. The holder of the privilege is a client or seeks to be a client. Only the holder of the privilege can claim the privilege (the client). BUT when acting on behalf of the client, the attorney must claim it as well. (must be a communication)
ii. The other party is a member of a bar OR is acting in his or her capacity as a lawyer. (even as students, if our clients believe were lawyers, there’s privilege) (of something about the law)
iii. The communication related to a fact of which the attorney was informed: a. by the clients; b. without the presence of strangers; c. for purpose of securing 1 of 3 things (an opinion on the law, legal services, or assistance in a legal proceedings.)
iv. The client must claim and now waive the privilege. The attorney can claim the privilege on the clients own behalf but not on the attorneys behalf. (ex: in an attorney malpractice exchange, attorney cant client documents in their previous interaction is not privileged)
2. Attorney Work Product (exception)
a. Consist of documents containing the mental impressionsof an attorney that were prepared during the course of litigation or before litigation.
b. This is available upon showings of (protected but not privileged and may be discovered upon 2 things:
i. good cause and
ii. a substantial need for the information and
iii. undue hardship.
c. This protects an attorneys mental process and is NOT AN ABSOLUTE EXCEPTION
d. Difference between this and material prepared in anticipation of litigation: This needs to be done
i. by an attorney and
ii. does not need to be done in anticipation of litigation, it can be done anytime
e. To protects must produce:
i. Detialed logs, description of document
ii. And producing party may seek a protective order from the court (26(c))
3. Material prepared in anticipation of litigation (exception)
a. Material that was prepared in anticipation of trial and cannot be discovered absent a showing of 3 things:
i. Good Cause
ii. Substantial Need
iii. Undue hardship to receive the substantial equivalent by other means
b. This is a sub step of attorney work product. The are very similar but have a few things different.
c. This can be prepared by NON-attorneys with an eye towards litigation that is impending.
4. Expert Testimony: provide opinions (vs. factual like witnesses) as to what the facts state
a. Must disclose any testifying witnesses (experts) pursuant to Rule 26(a) disclosures & must be accompanied with a written expert report
b. Afterwards the other side must be given the opportunity to depose the expert
c. Any expert that is retained by a party who is not going to testify need not be disclosed
B. Order of operations
i. Pre-litigation discovery Rule 27: Allows doe discovery may be conducted prior to lawsuit
1. Requirements:
a. Party expects to be a party to a federal suit but can’t bring the suit right now
b. Must state the subject matter of the suit
c. State the facts which the party expects to establish by the proposed testimony
2. Happens infrequently
3. Done to perpetuate testimony ONLY, not for ANY other reason
i
Provides 2 requirement for the court to step in:
i) Scheduling Order (Rule 16(b))
(1) Happens after the parties have filed the 26(f) plan
(2) In practice this does not always happen, but most courts issue a scheduling order 90 days after the D files an answer (usually automatically)
ii) Final Pre-trial Conference
B. Also allows for several interim conferences called by parties or court
C. Gives the authority to magistrates & District to be more hands on
D. Parties must be in attendance to ALL pre-trial conferences and be ready and willing to participate
E. Pre-trial Order (Rule 16(e))
a. Memorialize what happened at pre-trial conference
b. set future dates and order further compliance from the parties on designated matter
F. Sanctions rule 16(f)
a. Parties may be sanctioned if they
i. fail to obey any order or
ii. if no appearance made, or
iii. appears substantially unprepared during appearance or
iv. Fails to participate in good faith.
III. Devises that End Litigation Before the trial
I. Voluntary Dismissal {Rule 41(a)}
(Brought by the P before the motion for SJ and there are no inferences. If it’s granted, the case is dismissed without prejudice unless it is filed by a second time P.)
1. By plaintiff: any action may be voluntary dismissed without a court order by the P by:
1. The P must do this before the answer of motions for summary judgment
2. If granted it will dismissed without prejudice unless it is being filed for a second time.
II. Involuntary Dismissal {Rule 41(b)} motion of dismissal for failure to prosecute.
1. When a P is not moving the litigation forward
a. The D may file anytime after P has failed to appear or comply with rules
b. Must be done by order of the court
c. If granted it will be adjudication on the merits and one side or the other will win.
III. Default Judgment {Rule 55}
1. Failure to plead or otherwise defend
a. It is done by the clerk or the P when the party had failed to appear or otherwise defend
b. if it is granted, judgment will be for the P and it will be an adjudication, not on the merits, which means it will not set precedent.
* Notice must be given to the D 3 days prior to the hearing for default if the party had appeared in the action**?
IV. Summary Judgment {Rule 56}
a. Availed for prompt dismissal without trial when there is:
1. No Genuine issue of material fact; AND
a. Genuine Issue: an issue that a reasonable Jury could decide either way on
b. material fact: when that fact will effect that outcome of the case
2. When the movant is entitled to judgment as a matter of law(burden in on moving party)
2. Moving party must show that it is entitled to judgment as a matter of law
b. Burden
1. Initial burden is with moving party – must show that it is entitled to judgment as a matter of law by just showing that no issue of material fact exists (burden of production)
a.Can point out to trial court judge that the non-moving party does not have enough to make its case
2. Then shifts to non-moving party to show there is an issue of material fact (burden of production)
3. If non-moving party so shows, then shifts back to moving party. Can dispute by proving 1 of 2 ways:(burden of persuasion)
a. Fact is not material
b. Issue is not genuine
c. Can be brought by either party
i. Cross-motion for summary judgment:
1. In order for a non-moving party to benefit from a motion (to get a judgment) they need to file a cross-motion for summary judgment
2. This is done because if a party who files a SJ motion gets the motion denied, then the case just goes back to where it was before the motion was made.
B. Timing: 20 days after the commencement of the proceedings subject to the Rule 16 order as the cut-off date for Dispositive motion
C. Can be effective for entire case or just partial SJ for certain claims or certain parties
