*Tension inherent in the three goals of the FRCP:Fairness;Efficiency;Inexpensive
Litigation Timeline:
1. Investigation
2. Complaint
3. Service of D
4. 26(f) Conference (no judge)
5. Rule 16 Scheduling Conference (with judge)
6. Scheduling Order
7. Discovery[class certification may occur during discovery]
a. Motion to Dismiss / Answer
8. Motion for Summary Judgment
9. Rule 16 final pre-trial conference
10. Jury Selection
11. Trial
12. Post-Trial Motions
13. Appeal
I. Intervention (Rule 24)
A. Intervention – device for outsider who has an interest in a lawsuit to voluntarily join it.
B. Rationale for allowing intervention:
1. Efficiency – prevents duplication
2. Deterrence
3. Justice – by having all issues viewed at once
4. Additional facts provided by intervenor
C. Tension between allowing intervention to promote justice and unwieldy litigation
D. FRCP Rule 24
1. Rule 24(a) Intervention of Right – 2 ways to intervene by right:
a. 24(a)(1) – statute gives an unconditional right to intervene; or
i. i.e. allowing state or U.S. attorney general to intervene in special cases because of the risk that private parties might mess things up
b. 24(a)(2) – intervenor bears burden of satisfying three-part test:
i. Interest in the Subject Matter
a. The intervenor claims an interest relating to the subject of the action
b. Continuum:
1. Direct economic interest (more likely to be an interest)
2. General non-economic interest (less likely)
c. The Court has a lot of discretion in defining what an “interest” is (pp.285-288):
1. NRDC – any significantly, protectable interest; any significant legal effect; not a direct interest in the outcome of the lawsuit;
2. Cascade – broad interpretation of “interest” including non-legally protected interest, such as economic concerns.
3. Donaldson – “significantly protectable interest,” rejects practical interest, possibly asserts a requirement of a legally-protected interest
4. New Orleans – interest must be one which the substantive law recognizes as belonging to or being owned by the applicant (zone of interest).
5. General interest in the public welfare is not a sufficient interest.
ii. Impairment of the interest
a. Intervenor is situated so disposing of the action may impair or impede the intervenor’s ability to protect his interest
b. Continuum:
1. Immediate effect, i.e. res judicata (more likely to be an impairment)
2. Adverse precedent that doesn’t affect immediate behavior (less likely)
iii. Inadequate Representation
a. Intervenor’s interest is not adequately represented by existing parties
b. Continuum:
1. Potential for malfeasance/collusion (more likely to be inadequate)
2. Existing parties want exactly the same thing (less likely)
iv. In practice, there are other factors tied up in the test, i.e. headache to litigate?
2. Rule 24(b) Permissive Intervention
3. Rule 24(c) Notice and Pleading Required
a. Intervention is procedurally accomplished by timely filing a motion and pleading
4. Timeliness – Intervention must be timely, assessed using four factors:
a. When intervenor knew or should have known of his interest in the case
b. Whether there was prejudice to existing parties from the delay in seeking intervention
c. Whether there would be prejudice to the intervenor if intervention were denied
d. Any unusual circumstances
E. National Resources Defense Council (NRDC) v. U.S. Nuclear Regulatory Commission (NRC)
1. Facts – States granting uranium licenses w/o requiring impact statements, contrary to a federal law. The NRDC sued to enjoin this. United Nuclear allowed to intervene w/o objection b/c it already had license. Kerr-McGee, a competitor, wanted to intervene.
2. Holding: K-M allowed to intervene b/c it satisfied burde
e procedure adopted doesn’t fairly ensure the protection of the interests of absent parties bound by it.
b. Due Process Floor – there must be safeguards to ensure that those that purport to represent the interest of the class don’t do anything or have motives/interests contrary to the class’s interest:
i. Principal-Agent Problem – Risk that the class representative will act in self-interest, contrary to the interest of the absent class members.
ii. Double Agent Problem – Risk of the attorney of the class acting in self-interest, in conflict with the interest of the class.
c. Requirements are intentionally set as a floor to avoid constitutionalizing/federalizing state class action procedures
4. Hansberry v. Lee – D was not bound by a previous class-action that established a racially restrictive covenant because D’s interests were not adequately represented by the P’s in the previous class-action because the P’s in the previous class action wanted the covenant enforced, while D in this case wants covenant voided so he can sell to a black family.
C. Certification
1. There are several brakes to address agency problems:
a. Judge decides whether a class is certified
b. All 4 of the Rule 23(a) prerequisites must be satisfied
2. Rule 23(a) – Prerequisites to a Class Action
a. Numerosity – the class must be so numerous that joinder of all class members is impracticable.
i. < 20 is not a class
ii. > 150 is a class
iii. 20-150 is a “gray area” where other considerations matter:
a. Geographic location
Amount claimed
