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Archive for the ‘rule 23’ Category

One of the key questions in the aftermath of the Supreme Court’s recent decision in Comcast Corp. v. Behrend is the extent to which damages must be susceptible to classwide calculation in order to justify class certification.  In particular, the question is as follows: When the Comcast Court held that class certification was improper because the plaintiff had failed to demonstrate that “damages are capable of measurement on a classwide basis,” did it mean that Rule 23(b)(3) certification is never proper if damages cannot be determined on a classwide basis?  If the answer to this question is yes, then consumer class actions are in trouble because it’s a rare case where classwide determination of damages is possible.  But if the answer to this question is no, then as the Comcast dissent suggested, “the opinion breaks no new ground on the standard for certifying a class action under Federal Rule of Civil Procedure 23(b)(3).”

Yesterday, in the second of two moldy washing machine class actions that had been vacated and remanded for further consideration in light of Comcast, the Seventh Circuit Court of Appeals joined the Sixth Circuit in answering “no” to this question.  In Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030 (7th Cir., Aug. 22, 2013) (Posner, J.), the court reaffirmed its earlier decision that if common issues predominate over individualized issues in resolving the question of liability, then a class can be certified even if the question damages would require individual determinations. As usual, Judge Posner’s decision is colorful and an interesting read, even for those who disagree with the outcome.  The Sixth Circuit’s decision, which was issued last month, is In re Whirlpool Corp. Front‐Loading Washer Products Liability Litigation, No. 10-4188 (6th Cir. July 18, 2013).

In evaluating the potential broader impact of the Sixth and Seventh Circuit’s decisions, it is important to maintain a clear distinction between the question of damages and the related questions of injury and causation of damages.  Courts have long accepted that individualized damages questions do not prevent class certification, and the moldy washer decisions themselves break little new ground other than to interpret Comcast as not having altered that longstanding principle.  However, saying that individualized questions of damages can be left for a later proceeding is very different than saying that there is a good reason to certify a class when the elements necessary to prove liability itself (which typically include both the existence of injury and causation) cannot all be resolved on a classwide basis.  Individualized questions of whether a given class member has suffered any compensable injury at all or whether the allegedly wrongful conduct caused any alleged injury should still defeat predominance, and neither Sears nor Whirlpool should be read to suggest differently.  In those cases, because the plaintiffs had advanced what these courts concluded was a viable theory of common injury, the only individualized questions related to the amount of, and not the existence of, damages. See In re Whirlpool Corp., slip op. at 22 (“Because all Duet owners were injured at the point of sale upon paying a premium price for the Duets as designed, even those owners who have not experienced a mold problem are properly included within the certified class.)

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The United States Supreme Court issued its decision in Comcast Corp. v. Behrend, No. 11-864 today.  In a 5-4 decision, the Court held that the class of cable subscribers had been improperly certified.  Justice Scalia, writing for the majority, reasoned that the expert testimony offered by the plaintiff to show that antitrust damages were capable of class-wide proof addressed alleged damages that did not logically flow from the plaintiff’s theory of class-wide liability.  The majority held that the trial court had erred by refusing to consider questions concerning the expert testimony on damages that might overlap with the “merits,” while the Third Circuit had erred by accepting the plaintiffs’ contention that it had a class-wide theory of damages through expert testimony without actually scrutinizing the factual basis for that contention:

The Court of Appeals simply concluded that respondents “provided a method to measure and quantify damages on a classwide basis,” finding it unnecessary to decide “whether the methodology [was] a just and reasonable inference or speculative.” 655 F. 3d, at 206.  Under that logic, at the class-certification stage any method of measurement is acceptable so long as it can be applied classwide, no matter how arbitrary the measurements may be.  Such a proposition would reduce Rule 23(b)(3)’s predominance requirement to a nullity.

The dissenting Justices would have dismissed the writ of certiorari as having been improvidently granted.  The dissent’s criticism of the majority’s holding has more to do with the procedural posture of the case and the methodology used by the majority in reaching its factual conclusions than with the legal class certification concepts underlying the majority’s reasoning.  In particular, the dissent faulted the majority for having changed the issue on review after the conclusion of briefing and took issue with the majority’s analysis of the factual basis for the expert’s opinions.

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The Supreme Court has issued its opinion in one of the most highly anticipated class action-related cases on the docket this term.  The result in Amgen Inc. v. Connecticut Retirement Plans and Trust Funds, No. 11-1085, slip op. (U.S., Feb. 27, 2013) is not surprising given the content and tone of the questioning at oral argument.  In an 6-3 opinion authored by Justice Ginsberg, the Court held that the plaintiff in a securities fraud case based on a fraud-on-the-market theory of reliance does not have to prove materiality of the fraudulent statement or omission at the class certification stage.  Because materiality is a common question capable of resolution simultaneously for the entire class, the majority reasoned, it does not have to be proven at the class certification stage.  Justices Scalia, Thomas, and Kennedy dissented.

Amgen is an important decision in the securities fraud context because it addresses the lingering question of whether any special prerequisites exist in certifying a securities fraud class action that aren’t required in certifying other types of class actions.  Like the Supreme Court’s earlier decision in Erica P. John Fund v. Halliburton Co., 131 S. Ct. 2179 (2011), Amgen will probably have an impact beyond the securities fraud context.  In the context of class certification decisions more broadly, the opinion will be almost certainly be cited as clarifying the distinction between issues impacting the elements of class certification, which must be resolved at the class certification phase, and merits issues, which can wait until trial to be resolved.

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Work commitments have prevented me from commenting in detail on some key developments in class actions over the past week or so, but please be sure to check out my Twitter feed for some links.  The key developments include: 1) the Supreme Court granting certiorari in Amex III to decide whether federal law can apply to hold a class arbitration waiver unconscionable; and 2) Judge Posner’s decision favorable to class certification of warranty claims in case involving allegedly moldy washing machines.

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This is the second of what will be six posts summarizing my notes of the six presentations at the ABA’s 16th Annual Class Actions Institute held last month in Chicago.  For more on this excellent conference, see this October 31, 2012 CAB Post.

Session 2 addressed a topic of great relevance to all class action practitioners, regardless of the subject matter area of practice.  It was entitled “The Class Definition That Works . . . or Does It?” Strategies for Pleading and Attacking Class Definitions;  The Most Basic and Most Ignored Step in a Class-Action Lawsuits Success or Failure.  The panel of academics, judges and practitioners discussed recent developments in the state and federal courts regarding the requirements for a class definition.  They also discussed practical tips for plaintiffs in articulating a class definition that will withstand attack at the class certification stage, and practical tips for defendants in defeating class certification by attacking the plaintiff’s choice of class definition.  Program Chair Daniel R. Karon moderated the panel discussion, which consisted of The Honorable James G. Carr, Bart D. Cohen, Donald Frederico, Professor Dean Robert Klonoff, Sabrina H. Strong, and Ranae D. Steiner. 

Here are some highlights of the pointers made by the panel during the presentation:

  • Many courts have accepted several additional elements as implicit under Rule 23 and similar state rules of civil procedure, including that the class definition be sufficiently clear and narrow so that the class is ascertainable and not overly broad.  These requirements are implied in order to ensure 1) that the class can be identified from a practical perspective; 2) that the defendant has notice of the claims being made against it and by whom those claims are being made; and 3) that the court can manage the litigation.
  • These issues can also be expressed through the other, express Rule 23 elements.  For example, if a class is not ascertainable, then there is no basis to conclude that numerosity is present.  Similarly, an inability to distinguish class members who have a claim from those who do not should lead the court to conclude that common issues do not predominate.
  • Many trial judges would prefer to consider issues relating to the class definition in terms of the express Rule 23 elements rather than by accepting addition, implicit requirements.
  • Rather than declining to certify altogether, courts are often willing to work with plaintiffs’ counsel to try to come up with alternative class definitions that resolve problems associated with a class as originally proposed.
  • Because most judges are not dealing with these types of issues on a daily basis, the involvement of counsel on both sides is essential to the judge’s well-reasoned evaluation of the potential legal and practical problems with the proposed class definition and whether those problems can be remedied without violating the rights of the defendant or absent class members or overburdening the court.

The panel grouped issues relating to class definitions into various categories.  The panel discussed each of these categories in reference to an example case.  In many instances, the categories overlap, and the example cases often illustrated more than one of the categories.  I have listed below, for each category, the key problems, the example case(s) discussed by the panel, and my notes on insights offered by panelists:

Lack of objective criteria for class membership

Issue – Membership in the class depends on criteria that cannot be established without looking at each class member individually.

Example -  Solo v. Bausch & Lomb Inc., MDL No. 1785, 2009 WL 4287706 (D.S.C. Sept. 25, 2009):  In class action seeking compensation for the lost value of tainted contact lens solution that purchasers were encouraged to dump out as part of a product recall, class defined as consisting of all purchasers who “lack[ed] full reimbursement” for the value of the solution purchased.

Notes - fixes proposed by panel members included 1) Expand definition to remove individualized issues, e.g. “all who purchased”, but this could create overbreadth problems; 2) create subclasses based on date of purchase, and estimate likely amount of consumption for members in each subclass.

Vagueness

Issue – The class definition is too vague and indefinite to determine who is in the class.

ExampleHeisler v. Maxtor Corp., No. 5:06-cv-06634, 2010 U.S. Dist. LEXIS 125745 (N.D. Cal. Nov. 17, 2010): Class defined as anyone who experienced a hard drive “failure.”  The problem was determining what constituted a “failure” and limiting that phrase to failures caused by the alleged product defect. 

Notes - The Maxtor case provides an example of a decision where the court preferred to characterize the issues in relation to the express Rule 23 requirements.  The case also illustrates a common problem in cases where causation may be an issue.  By trying to limit class membership to only those individuals who suffered harm, the plaintiffs created a vagueness problem.

Failsafe Class

Issue - Class definition includes only those individuals who will ultimately prove their claims on the merits, so that class membership is not determined until a decision on the merits occurs.  The main problem with failsafe class is that it puts the defendant in a lose-lose situation.  Either the class wins at trial, binding the defendant to a classwide judgment, or the defendant prevails but gets no preclusive effect against absent class members.

ExampleNudell v. Burlington N. & Santa Fe Ry. Co., 2002 WL 1543725 (D.N.D. 2002): The court denied certification after determining that class membership hinged on class members’ ability to prove all of the factual issues that would prove their claims on the merits, including that they owned land abutting a railroad easement, that they did not give consent to the placement of utility cables on the easement, and so on. 

Notes - The problem in Nudell may have been due to a failure to develop the record sufficiently to convince the court that class membership could be determined based on objective criteria.  This is an example of a case where problems with the class definition could be remedied.  The case ultimately settled on a classwide basis after the class was re-defined.

Overbreadth

Problem – Class includes members who did not suffer injury or who have no legal right to recover.

ExamplesSanders v. Apple Inc., 672 F. Supp. 2d 978 (N.D. Cal. 2009): In action for deceptive advertising, class definition included all persons who “own” a 20-inch iMac.  The court found this definition overly broad because it included individuals who didn’t purchase the product and those who weren’t deceived by the advertising.  Anderson v. United Fin. Sys. Corp., 281 F.R.D. 292 (N.D. Ohio 2012): Class was found to be overly broad because it included class members whose claims were time-barred and who had no private right of action.

Notes - In some cases, overbreadth can be cured simply by narrowing the class definition.  On others, however, overbreadth is a symptom of predominance issues that may be difficult to remedy.

Class Definitions in Class Action Settlements

The panel also discussed issues in class definition within the settlement context.  As is true with other threshold requirements, the courts are generally more lenient about class definitions in the settlement context than they are in the litigation context, in large part because manageability concerns are lessened when otherwise contested issues do not have to be resolved.  An example is the DeBeers diamond settlement, Sullivan v. D.B. Invs., Inc., 667 F.3d 273 (3d Cir. 2011), where the Third Circuit affirmed certification of a settlement class over objections claiming that some of the class members would not have had a private right of action due to variations in state law.  Whether the inclusion of class members whose claims are barred or significantly weaker than other class members should be a bar to certification of a settlement class probably depends on whether other class members will suffer as a result.  If it’s simply a matter of the defendant agreeing to waive defenses as to a portion of the class, then courts are more likely to overlook variations in the strengths and weaknesses of individual class members’ claims.

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Editor’s Note – This article is a joint submission to CAB and the BakerHostetler Class Action Lawsuit Defense Blog.  Please visit our firm’s blog for more riveting class action-related content.

A definitive ruling on whether courts may certify class actions to decide discrete issues, as opposed to cases or claims, will have to wait.  Last Monday, the United States Supreme Court denied a writ of certiorari to review the Seventh Circuit Court of Appeals’ ruling in McReynolds v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 672 F.3d 482 (7th Cir. 2012).

In McReynolds, which was decided after the Court’s ruling in Wal-Mart Stores, Inc. v. Dukes, the Seventh Circuit had reversed a denial of certification of a class in a disparate impact employment discrimination case, holding that a class could be certified for the limited purpose of resolving the issue of whether a specific policy of the Defendant created an unlawful disparate impact on black stock brokers.  For a more detailed summary of Judge Posner’s decision in McReynolds, see Deborah Renner’s March 1, 2012 CALD post.

The issues that had been presented for review by the Supreme Court were as follows:

(1) Whether the Seventh Circuit’s certification of a disparate impact injunction class conflicts with this Court’s decision in Wal-Mart Stores, Inc. v. Dukes, which rejected certification of a nationwide class that, like this one, asserted disparate impact claims based on employment policies requiring the exercise of managerial discretion; and

(2) whether the Seventh Circuit erred in holding, in conflict with other circuits, that Federal Rule of Civil Procedure Rule 23(c)(4) permits class certification of a discrete sub-issue when the claim as a whole does not satisfy Rule 23(b) and hundreds of individual trials would be needed to determine liability.

The denial of certification means that the lower federal courts will be left to decide whether and under what circumstances “issue certification” is permitted.  A procedural tool not often applied in practice until recently,  issue certification, at least in some form, is expressly permitted under FRCP 23(c)(4) (“When appropriate, an action may be brought or maintained as a class action with respect to particular issues.”).  However, a common question that arises in the interpretation of this language, and the one that had been presented for review in McReynolds, is whether issue certification is permitted when the resolution of the issue certified would not eliminate the need to resolve individualized issues before any claim could be resolved.

The federal circuits are split on whether issue certification is allowed to resolve discrete issues short of a full claim.  The Fifth Circuit has not allowed issue certification in a class action for damages where predominance cannot otherwise be satisfied, and it has not allowed issue certification in a class action for injunctive or declaratory relief in cases when monetary relief is the predominant relief sought.  Castano v. American Tobacco Co., 84 F.3d 734, 745 n.21 (5th Cir. 1996) (“[a] district court cannot manufacture predominance through the nimble use of subdivision (c)(4).”); Allison v. Citgo Petroleum Corp., 151 F.3d 402 (5th Cir. 1998).  [Ed. Note: just before the Supreme Court denied the petition for certiorari, in McReynolds, the 5th Circuit issued its decision in Rodriquez v. Countrywide Home Loans, Inc., No. 11-40056 (Sept. 14, 2012), a case that the McReynolds plaintiffs argued in supplemental briefing to the Supreme Court eliminated the Circuit split.  In Rodriguez, the 5th Circuit approved of the use of Rule 23(c)(4) to certify a class for the purpose of resolving injunctive and equitable relief, leaving damages for a different proceeding].  The Second Circuit has been more open to issue certification. Robinson v. Metro North Commuter,  R.R. Co., 267 F.3d 147 (2d Cir. 2001) (holding that “litigating the pattern-or-practice liability phase [of a disparate treatment discrimination case] for the class as a whole would both reduce the range of issues in dispute and promote judicial economy”); In re Nassau County Strip Search Cases, 461 F.3d 219 (2d Cir. 2006) (holding that “a court may employ Rule 23(c)(4) to certify a class on a particular issue even if the action as a whole does not satisfy Rule 23(b)(3)’s predominance requirement.”). The approach taken by Judge Posner in McReynolds generally follow the Second Circuit’s approach by allowing issue certification even where predominance would not be satisfied with respect to the claim as a whole.

An interesting feature of issue certification is that unlike full-blown class certification of a claim or case, issue certification does not necessarily put a defendant at risk of catastrophic liability in a single stroke, because any individualized defenses to liabilty on the claim as a whole may still be available even after the common issue is decided.  On the other hand, it is this feature that often begs the question whether issue certification has any utility in materially advancing litigation that will inevitably require individualized proceedings before reaching finality.  It also leaves the procedure vulnerable to a great risk of misinterpretation and abuse, which may explain the Fifth Circuit’s skepticism.  Plaintiffs may seek and courts may grant issue certification on the mistaken impression that to certify part of a class will hasten the resolution of litigation.  Defendants may fear issue certification based on a mistaken belief that certification of even part of a class action puts them at risk of aggregated liability.

The real question with issue certification tends to be whether formally certifying an issue for class-wide treatment creates any practical efficiency that materially advances litigation.

In many cases, there are legal issues, the answer to which indisputably have class-wide implications, but the question arises whether formal certification of these issues is even necessary.  For example, common legal issues are often resolved in a preliminary motion.  Even if these issues are not resolved on a class-wide basis after a formal order of certification, their resolution has a practical class-wide effect.  Examples would be decisions on the interpretation of a particular statutory provision.  For example, does the statute confer a private right of action?  Is proof of injury required as an essential element of a statutory claim? Whatever the initial court’s decision on this type of issue is likely to have a practical impact on any later litigation, so the resolution of the issue in the first case to address it tends to have a practical impact on any other affected litigants that usually avoids the need for duplicate litigation on the same issue.

In other cases, resolution of issue, however indisputably common, can often bring the litigation no further to conclusion.  For example, in products liability case against a tobacco company, resolution of the factual issue whether cigarettes cause cancer probably does not move most cases closer to resolution because the primary issue in the case is going to be whether cigarettes caused the plaintiff’s cancer.

A big problem with issue certification is that resolution of important issue in a vacuum, without proper context, can have disastrous and unfair consequences later in a case. Answering the question whether the defendant was “negligent” is a problem in most cases becuase the question of “negligence usually depends not simply on whether the defendant breached an applicable standard of care, but also whether that breach caused injury to the plaintiff.  So, certifying the question of “negligence” is usually inappropriate due to the necessity to resolve individualized questions of fact.  Unless the question on which the class is to be certified is very well defined, certification in these types of case can create serious problems.  Certification of whether the defendant breached an applicable standard of care may be a more appropriate question for certification, but only if resolution of that question could materially advance the litigation to a resolution.  In many cases, as in the tobacco example noted above, certifying a preliminary question of “breach of the standard of care” does not create any real efficiencies in the litigation as a practical matter.

Thus, there are serious questions whether issue certification has any social utility in many cases.  However, not only are there situations in which issue certification is not only beneficial from the perspective of judicial economy, but there are also situations in which issue certification can be used by a defendant to its own advantage.  They include:

1) a case in which certification appears imminent, despite the presence of individualized issues; in these cases, issue certification provides a an alternative to full blown certification in a way that may preserve the defendant’s ability to avoid having a determination of mass liability in a single case or the defendant’s ability to raise important individualized defenses.

2) to illustrate the analytical and manageability flaws in certification of an entire case or claim.  In some cases, pointing out issue certification as an option may serve not only to provide an option short of full-blown certification, but also to show to the court how certification of merely the issues that are truly common may not create any real efficiency in resolving the litigation.  In these cases, pointing out that issue certification is an option may serve to avoid class certification in its entirety.

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Tiger Joyce, President of the American Tort Reform Association, authored an impassioned op-ed for the Washington Times yesterday entitled A Class-action Blow to U.S. Manufacturing.  Joyce argues that the entire manufacturing industry is at risk if the United States Supreme Court declines to grant certiorari of the Sixth Circuit’s decision in the case of Whirlpool v. Glazer, No. 12-322, in which the court upheld class certification of claims that washing machines were defectively designed, causing chronic mold problems.  Whether Joyce’s warning is hyperbole or prescience remains to be seen, but the case does raise some interesting issues of note to class action practitioners.  The issues presented for review are as follows:

1. Whether a class may be certified under Rule 23(b)(3) even though most class members have not been harmed and could not sue on their own behalf.

2. Whether a class may be certified without resolving factual disputes that bear directly on the requirements of Rule 23.

3. Whether a class may be certified without determining whether factual dissimilarities among putative class members give rise to individualized issues that predominate over any common issues.

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The United States Supreme Court has granted certiorari in another class action to be heard during the October 2012 term.  In Comcast Corp. v. Behrend, No. 11-864, an antitrust class action, the Court will address the following issue:

Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.

The case is an appeal from the Third Circuit Court of Appeals’ ruling in 2011 upholding the district court’s finding that the plaintiff had presented by a preponderance of the evidence that damages could be proved on a common, class-wide basis.  However, a lengthy opinion from Judge Jordan, concurring in part and dissenting in part, took issue with the conclusions reached by the plaintiffs’ expert that antitrust damages could be established on a common basis for the class as a whole. 

As with many of the cases addressed by the Supreme Court over the past few years, this case provides an opportunity for the court to either enter a specific ruling narrowly tailored to the area of law in which it applies (here, antitrust or competition law) or a sweeping ruling impacting the procedure governing class certification more generally.  In particular, the Behrend case could potentially resolve the issue whether difficulties in proving damages on a class-wide basis is a reason to deny certification.  For many years, lower courts have relied on the rule that individualized damages issues are not a barrier to class certification.   A reversal of that rule could have a major impact on the viability of class actions in a variety of contexts.

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I’m embarrassingly late in posting a link to a terrific article from Steptoe & Johnson Partner Jennifer Quinn-Barabanov entitled Has Dukes Killed Medical Monitoring?  The article, published in the November 2011 Issue of DRI’s For the Defense Magazine, explores the potential impact of the Supreme Court’s decision Dukes in defending against class certification of product liability claims that seek as a remedy medical monitoring of class members who were exposed to an allegedly harmful product.

I highly recommend Quinn-Barabanov’s article for those of you who may have missed it when it came out in November.  The article is a must-read for anyone facing (or prosecuting) a medical monitoring class action.

It also makes at least two key contributions that are independent of the medical monitoring context.  First, it offers an analysis of the potential application of various aspects of the Wal-mart Stores Inc. v. Dukes decision outside of the employment discrimination context, including the arguably heightened commonality analysis and the admissibility of expert testimony in support of class certification.  Second, it is a good primer on the possible distinctions between truly injunctive relief, which still may be the basis for a Rule 23(b)(2) class action, and merely equitable relief incidental to a claim for monetary relief, which the Dukes Court held cannot support class certification under Rule 23(b)(2).

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Mark Herrmann, former contributor to Drug and Device Law Blog and Vice President and Chief Counsel for Litigation at Aon, Inc., recently authored and entertaining and enlightening post in the legal industry blog, Above The Law.  In Inside Straight, Torpedoing Class Actions, Herrmann highlighted a 2009 book by Northwestern Law’s Martin Redish entitled Wholesale Justice: Constitutional Democracy and the Problem of the Class Action Lawsuit, in which Redish argues that as applied in current practice, class actions undermine the foundations of American constitutional law.  Rather than exploring the nuances of Redish’s constitutional analysis, Herrmann uses the book to make a deeper point about the state of class action defense practice:

My gripe is this: Redish may be right, and he may be wrong; I’m not taking sides here. I haven’t read the cases, and I don’t exactly have any firmly-held beliefs about the nuances of the Presentment Clause (whatever the heck that is). But Redish is a smart guy. His ideas are surely plausible, and no law firm would be sanctioned for making these arguments in a brief. So where are the law firms? Why isn’t every class action defense firm in America mentioning to clients that these arguments exist?

This post is not intended to be a response to or criticism of Herrman’s commentary, as I don’t disagree with a word of it.  Think of it instead as a supplement, intended to address the related topic of how clients can select outside counsel who will keep them abreast of arguments like the ones discussed in Professor Redish’s book.  I have two simple suggestions, each of which I will expand upon below: 1) Hire bloggers, and 2) Ask for competing litigation strategy proposals before selecting outside counsel.

Hire Bloggers as Outside Counsel

Reacting to Herrmann’s post gives me an opportunity to engage in the blatant self-promotion that this blog was created for, if a bit less subtly than usual.  

There is no better way to ensure that your outside counsel is up to speed on possible arguments than to hire blogger.  Bloggers are constantly doing their own research and tracking in current issues, theories, and litigation trends from many different sources, including law reviews, trade journals, other blogs, news feeds, and court decisions.  Those arguments that they don’t become aware of through their own study are often brought to their attention by their readers.

Blogging also reflects several other traits that are favorable in any outside lawyer.  It shows a strong work ethic (after all, most of us do this in our spare time), and demonstrates intellectual curiosity.  A blog also serves as a permanent public resource that any potential client can consult to get insights into a lawyer’s writing style, creativity, and analytical abilities. 

Of course, none of this would be news to Herrmann, who was one of the premier Biglaw bloggers before moving in-house a few years ago.  If I were looking for outside counsel in a class action, among the first lawyers I would consider would be my fellow Biglaw bloggers Andrew Trask and Russell Jackson, as well as Herrmann’s former blogging partner, Jim Beck.

For obviously selfish reasons, I’m highlighting bloggers here, but these same arguments apply to any lawyer who writes, lectures, or teaches in any medium.  A frequent contributor to law reviews or trade journals an adjunct professor at a law school, a frequent CLE panelist, or even a lawyer who takes the time to actually read law reviews and trade journals (rather than simply let them pile up on the corner of a desk) can also have many of these same desirable traits.  And, there are plenty of lawyers who can walk and chew gum at the same time (in other words, lawyers who are both able to keep up with academic trends and who know their way around a courtroom).

Seek Competitive Litigation Proposals

Especially in the current market, class action defendants have their pick of whom to select as outside counsel.  Discounts and alternative fee arrangements are understandably a focus of outside counsel selection in today’s market, but the is no reason that cost considerations have to be considered at the expense of counsel’s ideas, arguments, and litigation approaches.  If you are dissatisfied with the initiative or creativity of your current lawyer, why not ask multiple firms to submit competitive proposals for their litigation strategies before you hire them? 

This approach has many advantages: it allows you to synthesize the ideas of attorneys with different perspectives and take advantage of all of their ideas regardless of whom you ultimately choose to represent you; it ensures that the attorneys that you ultimately select will have thought through potential arguments, and their litigation strategy more generally; it encourages creativity and discourages complacency.  Attorneys should have the self-confidence in their abilities and ideas necessary to show a willingness to pit them against those of the competition before you start paying them.  And,  the willingness to put together a litigation proposal also demonstrates a capacity to give your matter the attention that it deserves.  If you give them a fair shot, attorneys should always be happy to share their ideas on any given case even if they aren’t ultimately selected in every case.  The benefits of a competitive selection of outside counsel in class action litigation seem obvious, and certainly the trend is in this direction, but too often I still see these decisions being made based on longstanding relationships or on who is the lowest bidder.

Asking for prospective counsel to share their ideas doesn’t just let you collect good ideas for the eventual defense in the litigation.  It also gives you a chance to evaluate the thoughtfulness and completeness of a particular firm’s approach to the litigation.  Take Redish’s book as an example.  Herrmann’s thesis is certainly not necessarily that constitutional arguments can or should be raised haphazardly in every case, costs be damned. It is merely that clients should expect their counsel to be up to speed on all the possible arguments, however esoteric.  So, knowing that Professor Redish’s book exists and then mastering his arguments are good first steps, but then there are a host of nuances to consider.  For example, For every academic argument there is an equally compelling (at least to some) argument on the other side.  What arguments could the plaintiff make in response to the constitutional arguments, and which set of arguments is more likely to be persuasive to the judge assigned to the case?  What about the appellate courts?  Also, what if the case strategy includes retention of a class action expert, a role that Professor Redish has had in past cases?  Certainly, Redish’s arguments about the constitutionality of Rule 23 are a factor that any client would want to consider before retaining him as an expert witness.

In summary, while I agree wholeheartedly with Herrmann’s point that clients should be able to expect their outside counsel to keep abreast of academic trends, I would add there are some simple things that clients can do to better ensure that they have outside counsel who will do so.

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