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Complex Litigation
University of Kansas School of Law
Hines, Laura J.

Complex Litigation: Professor Hines Fall 2015
■            Analysis Checklist
i.                 Ascertainability
ii.                Requirements
1. 23(a)
i.                 Numerosity
ii.                Commonality
iii.              Typicality
iv.              Adequacy of Representation
2. 23(b)(1)
1.                23(b)(1)(A): Risk of Inconsistent Adjudications
2.                23(b)(1)(B): Limited Funds
3. 23(b)(2) : Injunctive Cases
1.                Equitable Relief
2.                Cohesiveness
3.                Constitutional Issue of Mandatory Class
4. 23(b)(3): Money Damages
1.                Predominance
2.                Superiority
3.                Cohesiveness
                                      c. Pred and Superiority Concerns
                                                i. Novel questions
ii. Erie Doctrine
                                                iii. Maturity
iv. Manageability
B. General Concerns
i.                 Roll of Dice
ii.                Drum Beat
iii.              7th Amendment (Right to jury and re-examination clause)
iv.              Erie Rule
v.                Due Process
vi.              Federalism
C. Settlement Class Action
D. Preclusion Doctrine
i.                 Issue Class Action, 23(c)(4)
ii.                Collateral Estoppel/Issue Preclusion
E. Bifurcation/Trifurcation
F. Different Types of Complex Litigation
i.                 Consolidations, 42(a)
ii.                Multi-District Litigation, 28 USC 1407
iii.              Subject Matter Jurisdiction: 21
iv.              Personal Jurisdiction: 22
v.                CAFA Jurisdiction
vi.              Damages
1.                Cy Pres
2.                Punitive Damages
                G. Asbestos Litigation
H. Substantive Legal Issues
i.                 Indeterminate Plaintiffs
ii.                Indeterminate Defendants
iii.              Affirmative Defenses
iv.              Role of Objectors
                Writ of Mandamus
General Class Actions
■       Competing factors are plaintiff autonomy and judicial economy
■       In effect a preclusion device, b/c the outcome of the class action precludes the later claims of any member of the class
23(c)(1)(B) requires that a certification order must define the class to be certified. For a class action to be certified the class must be ascertainable, easily identifiable, Agent Orange. According to Marcus class members are impossible to identify without extensive fact finding or mini trials. If class members cannot first be identified by defendant’s records [of purchase] then there must be a reliable, administratively feasible alternative.
■       Analysis of Ascertainability (Carrerra):
            1. Whether the D’s records can ascertain class members AND
            2. if not, whether there is a reliable administratively feasible alternative:
a. Method must be reliable and administratively feasible based on objective criteria
                        b. Method must permit a D to challenge the evidence used to prove membership
c. Method of ascertaining a class member must have evidentiary support that the    method will be successful.
            3. Burden of proving facts related to ascertanability
a. Factual determinations necessary to make R. 23 findings must be made by a preponderance of the evidence that is currently and readily ascertained based on objective criteria.
23(a) Requirements
23(a) Overall
■       Describes why we would be willing to sacrifice the individual prosecution of the claims
In order to be certified as a class action, the court must conduct a rigorous analysis into 23(a) requirements, Gen. Tel. Co. v. Falcon. 23(a) requires a class action to have commonality, typicality, numerosity and adequacy of representation. Mere repetition of R. 23(a) language is not sufficient, AMS.
■       Settlement: The court should not “authorize separate liberalized criteria for settlement classes, Georgine. The 23 requirements must be satisfied without taking into account the settlement and analyze as if the action were going to be litigated.
■       Variations in state law claims can defeat 23(a), Castano
23(a)(1) requires numerosity, meaning that the class be “so numerous that joinder of all members is impracticable.” There is no strict number of numerosity of the class, but AMS found that when class size reaches substantial proportions then the impracticability requirement is usually satisfied. Agent Orange found numerosity would be satisfied with only the plaintiffs in the 167 actions, while AMS found 15-20,000 plaintiffs met this element.
23(a)(2) requires commonality, meaning there are questions of law or fact common to the class. Commonality ensures resources are saved by serving more clients by permitting an issue potentially affecting every [class member] to be litigated. There needs to be only a single issue common to all members of the class. Jenkins finds commonality is satisfied when a resolution of the common questions affect all or a substantial number of class members. Walmart found that the common contention must be of such a nature that is capable of class wide resolution-which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. Moreover, Scalia stated commonality is when the common question or fact is central to each claim and will resolve all issues in one stroke.
■       Settlement Class context, common issues arise from the settlement itself, In re School of Asbestos
The typicality requirement outlined in 23(a)(3) requires that the claims or defenses of the representative parties are typical of the claims or defenses of the class. First, the court must have a name representative to determine typicality, Dalkon Shield. Typicality determines whether a sufficient representative exists between the injury to the names plaintiff and the conduct affecting the class, AMS. A represe

ion, barring class action would prejudice the class (mandatory class action)
●       (b)(1)(A): when barring class action could result in inconsistent/ varying adjudications for individual members
●       (b)(1)(B): Limited Fund Scenarios/Mandatory Punitive CA
●       In effect, the required joinder of CAs
●       23(b)(2): Injunctive/Declaratory Relief (mandatory class action)
●       doesn’t include money damages
●       23(b)(3): when commonality predominates and superior method (not mandatory class action)
Trigger: plaintiffs would seek conflicting injunctions against D if allowed to pursue individual actions
23(b)(1)(A) authorizes a class action when the prosecution of separation actions would create a risk of “inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class.” Inconsistent or incompatible is not the mere fact that some plaintiffs may prevail and some lose in separate lawsuits and does not justify 23(b)(1)(A) certification. See In re Bendictin Products Liab. Litigation. Amchem outlined two scenarios where (b)(1)(A) would be applicable: when a party is obliged by law to treat the members of the class alike (i.e. gov’t imposing a tax) or when the party must treat all members alike as a matter of practical necessity (i.e. defendant is a riparian owner being sued by downriver owners). Thus, if a situation should arise in which different results in separate actions would result in the inability of the certification seeking party to pursue a clear course of conduct, then (b)(1)(A) certification may be appropriate.
23(b)(1)(B) certification is applicable when individual actions could result in the disposition of the interests of other members not parties to the adjudication or substantially impair or impede their ability to protect their interests. The rationale of this rule is to protect potential claimants and provide equality of treatment. (b)(1)(B) applies to the limited fund scenario, when there are multiple claimants to a limited fund and there is a risk that litigants who sue on an individual basis will deplete the fund for the late-comers.
            i. Plaintiffs have tried to get things like medical monitoring injunctions, but court have been reluctant to certify. Medical monitoring can be certified where more purely injunctive.