I will be speaking on a webinar panel with plaintiffs’ attorneys Keith J. Keogh and John G. Watts tomorrow discussing the latest trends in TCPA class action litigation. This is a reprise of a program we have done several times over the past few years, but we’ll be covering quite a few new developments this time around, including recent decisions on ascertainability, consent, mootness, standing, and the definition of an ATDS under the statute, as well as current and potential future FCC developments that may impact TCPA litigation in the future.
Posts Tagged ‘ascertainability’
Posted in class action reform, Federal Civil Procedure, rule 23, tagged advisory committee, amchem, ascertainability, blackmail, campbell-ewald, class action, class action settlement, class certification, cy pres, eisen, final approval, greenmail, issue certification, issue class, moot, objector blackmail, objectors, pick off, predominance, preliminary approval, rule 23, rule 23 subcommittee, rule 68, rules of civil procedure, settlement approval, settlement class on September 17, 2015| 3 Comments »
I was privileged to be invited to participate in a recent mini-conference with the Rule 23 Subcommittee to the Advisory Committee on Civil Rules, the committee that evaluates and proposed changes to the Federal Rules of Civil Procedure for consideration by the Supreme Court. Click this link to the materials for last week’s mini-conference, which was held in Dallas.
The mini-conference attendees included the Rule 23 Subcommittee, members of the larger Advisory Committee, and representatives of key stakeholders including: federal district court and circuit court judges; academic thought leaders; private plaintiffs’ attorneys; private outside defense attorneys; in-house corporate counsel; non-profit public interest attorneys; and public interest class action objectors. During the mini-conference, the attendees were encouraged to provide oral feedback on a variety of proposals being considered by the Subcommittee. Many participants had also provided written comments in advance of the conference, which can also be found by clicking the link in the first paragraph.
The topics under discussion by the subcommittee, and a short summary of the issues discussed during the mini-conference for each topic, are listed below. Note that I have not given a comprehensive summary of every comment made during the discussion of each topic but have rather focused just on some of the highlights. For another perspective on the mini-conference, be sure to check out this post from Jocelyn Larkin at the Impact Fund.
Any changes proposed by the subcommittee have to be published for public comment before going to the Supreme Court for approval. They won’t ultimately go into effect until 2018 even if they are ultimately proposed and approved. The Rule 23 Subcommittee is still accepting comments, so please feel free to offer your own suggestions.
Topic 1: Disclosures regarding proposed settlements
The Subcommittee’s current draft proposals contemplate providing more detailed guidance to courts in what factors should be considered in approving a class action settlement before ordering notice to be given to the proposed settlement class. The most extensive proposal sets forth a mandatory list of types of information that must be provided to the trial court before the court orders notice. The proposed committee notes also state, among other things, that an order to give notice of a proposed settlement to the settlement class is not “preliminary approval” of the settlement and is not a decision to certify the class. The goal would be to foreclose any argument by the parties that the court has already decided key issues relevant to final approval before any class member has been given notice of the settlement and an opportunity to object.
Several participants expressed concern with including a “laundry list” of information that had to be provided in every case, when not all of the categories of information are relevant in all cases. Others noted that the list of factors was better suited for the committee comments than in the rule itself, though it was pointed out that comments cannot be added to the rule in the absence of a change to the rule itself. Several participants suggested inclusion of a “catchall” factor allowing the court to request information not included in the list.
Several comments were raised about the proposed comments clarifying that the determination is a not a “preliminary approval” of the settlement, noting that it could create due process concerns to have a procedure that forces a class member to decide whether to opt out before a determination has been made that class certification is appropriate. Participant suggestions for addressing this concern included the possibility of using a phrase like “contingent certification,” which would be a formal class certification decision while making clear that the settlement has not been preliminarily approved.
Topic 2: Expanded treatment of settlement criteria
The second topic was whether the Subcommittee should provide more specific criteria in the rule about what the trial court must consider in giving final approval to a settlement. The proposals contemplate expanding the limited statement in the current rule that the court must determine that a proposed settlement is “fair reasonable and adequate.” Many of the Circuits have adopted their own tests for what must be considered, and though the factors to be considered tend to be similar, they are not identical from Circuit to Circuit. One justification for a possible rule change would be to bring national uniformity to the process. Another goal stated by the Subcommittee would be to encourage more involvement from objectors to ensure an adversarial process at final approval.
The Subcommittee posed the question to the participants whether there would be any value to establishing a uniform list of more detailed standards rather than relying on judicial gloss that may vary from Circuit to Circuit. Resulting comments were mixed, with one participant commenting that this may be a “solution looking for a problem.” As with the first topic, several participants noted that it would be good to include a catchall factor or statement that the list of enumerated factors is not exclusive. Still others observed that courts will likely add factors over time anyway, so that we may end up in the same situation down the road, with the additional factors varying from Circuit to Circuit. There was also significant discussion about whether the rule or comments should encourage more scrutiny over the amount of attorneys’ fees in comparison to class relief and the actual claims rate should be something that the rule should mandate courts evaluate.
Those who follow this blog probably know that my own feeling is that class relief in settlements should be evaluated based on the adequacy of notice and whether the settlement relief being made available to the class is fair reasonable and adequate in light of the strength of the claims and the litigation risks. I submit that this evaluation should be made without regard to the claims rate (except to the extent that a low claims rate may require more scrutiny over the notice program) and without regard to the amount of attorneys’ fees being requested (except to the extent that attorneys fees are being paid at the expense of class relief). However, many of the participants felt strongly that both fees and claims rate should be subject to more scrutiny than courts have traditionally given to those issues.
Topic 3: Cy pres provisions in settlements
The discussion next turned to one of the most controversial subjects in class action litigation today: whether and under what circumstances cy pres distributions can be included as part of a class action settlement. The Subcommittee’s current proposal would expressly permit cy pres distributions, but would require priority to be given to direct payments to class members if class members can be identified and if the distribution would be economically feasible, and would require the distribution to be made to a cy pres recipient “whose interests reasonably approximate those being pursued by the class.”
Comments on this topic were as varied as one would expect. One participant questioned whether it was appropriate for a rule of civil procedure to address a remedy not otherwise authorized by law, though another pointed out that the rule already does address fee awards payable only by agreement. This led to a discussion about whether the proposed revisions would violate the Rules Enabling Act. Several participants argued that cy pres distributions in settlements are a matter of contract and therefore should not be problematic, but others disagreed, pointing out that class action settlements are not like other private agreements because they are subject to supervision by the court. One participant pointed out that cy pres awards can serve a beneficial public purpose by, for example, providing funding for organizations that improve access to justice. Overall, though, there seemed to be general agreement among those who were not opposed to cy pres distributions altogether that cy pres recipients in class action settlements should bear some relation to the class members and their interests. Several creative solutions to identifying appropriate cy pres recipients were discussed, including the option of polling class members as part of the notice and claims process.
Topic 4: Objectors
The next topic was objectors. The current Subcommittee proposal would add a variety of requirements for objectors, including procedural requirements for perfecting a valid objection, and requirements for articulating what the objection is intended to achieve and on whose behalf, and requirements for court approval before objections can be withdrawn. Other requirements under consideration include express requirements for disclosing any financial consideration being paid to an objector or attorney in exchange for withdrawal of an objection.
There was a near unanimity among the participants that “greenmail” objectors (some would just call them “blackmail” objectors) remain a problem in class action settlements and that it would be beneficial to have procedures to prevent litigants from raising frivolous objections to class action settlements for the sole purpose of attempting to extract a monetary payment. Perhaps this was because greenmail objectors were one of the few groups not represented at the mini-conference, though I’m sure it’s not easy to identify attorneys willing to self-identify as representative of this group. Most participants seemed generally supportive of the purpose behind the committee’s proposed rules. Some questioned whether it was necessary to include an express rule provision that monetary payments to objectors be disclosed since the Class Action Fairness Acts already requires disclosure of any side agreements, but otherwise, this was not one of the more hotly debated topics.
Topic 5: Class Definition & Ascertainability
The Subcommittee is considering adding a section describing the requirements for how a class should be defined and determining whether the class is ascertainable. This is an active issue in the courts, and one on which the Circuits are split. The Subcommittee’s current proposal for defining ascertainability includes several alternative wording options, and numerous alternative definitions were proposed by participants and other interested parties in written submissions before the mini-conference, which are included as an appendix to the conference materials (see the link in the first paragraph above).
As has been true in the courts, much of the debate at the mini-conference focused on how to define what level of ascertainability should be required. Possibilities include: 1) whether the class is defined in such a way that class members would know whether they are in the class, 2) whether the class members can be identified using objective criteria, 3) whether the identification of class members is administratively feasible, and 4) whether the specific members of the class can be both identified and located. One participant noted that ascertainability is something that should only be an issue in Rule 23(b)(3) classes seeking monetary relief, as opposed to Rule 23(b)(2) classes, where notice is not required under the current rule. Another participant made the comment that trial plans can be a useful tool in forcing the parties to define a class in a way that makes clear whether the class is identifiable and the class action manageable as a practical matter.
As with some of the other topics, the Subcommittee raised the question whether this is an issue that should be left to the courts to develop before a rule change is appropriate. My best guess is that this is where the Subcommittee will end up on this issue, given the lack of consensus on how to define the ascertainability requirement. Of course, one option would be to simply add a provision requiring that the class be “ascertainable” and then see what the courts do with it.
Topic 6: Settlement Class Certification
The Supreme Court issued its decision in Amchem Products, Inc. v. Windsor in 1997, holding that class certification for settlement purposes was subject to the same requirements as certification for litigation purposes. Since then, courts have routinely certified settlement classes in cases in which certification would have been doubtful if it had been presented in the contested context. Recognizing this practical reality, the Subcommittee is considering changes to Rule 23 that would expressly permit settlement class certification in situations where the settlement would be superior to other methods of adjudicating the controversy and the court otherwise finds that the settlement is fair, reasonable, and adequate, without the need to establish that the other elements of Rule 23(b)(3) (in particular, predominance).
From my point of view, the general sentiment of the discussion of this topic during the mini-conference seemed to be one of “if it ain’t broke, don’t fix it.” The practitioners in the group seemed generally satisfied that the current jurisprudential climate seemed to be allowing settlements in those cases that needed to be settled as class actions, while other alternative procedures, like inventory settlements, had since been developed to permit settlements in mass tort cases of the type at issue in Amchem. Some of the academics had serious reservations about the Constitutional implications of the proposed rule. So, overall, the consensus seemed to be that no rule change was necessary at this point.
Topic 7: Issue Class Certification
Rule 23(c)(4) has long provided that class certification may be granted only as to certain issues and not an entire case. However, the idea of “issue certification” has not been used in practice until recently. Based on a perception that there was a Circuit split on whether certification of particular issues may be appropriate even if predominance could not be established as to an entire case, the Subcommittee is considering a change that would make clear that predominance is not a requirement for issue certification. Accompanying this change would be a proposed change to Rule 23(f) that would permit interlocutory appeal of the court’s determination on the merits of the issue certified, prior to a final judgment. However, since the change was originally suggested, the Circuits seemed to be coming into alignment, raising the question whether a rule change is necessary.
There was not a significant amount of debate at the – about this issue. Most seemed to be content with the suggestion that the courts be allowed to develop the decisional law on the question of when issue certification is appropriate before a rule change is considered. My own view is that it would be helpful to at least insert the requirement that the court determine that the resolution of the issue to be certified would “materially advance the litigation.” This would help avoid situations in which issue certification can potentially prolong expensive litigation that ultimately leads to no resolution all because of costs associated with resolving any individual facts in comparison to the amounts to be recovered or the number of class members who ultimately stand to benefit from a resolution of the issue in their favor. However, the Subcommittee seems to be coming to the conclusion that issue certification reform is not a high priority at this point.
Topic 8: Notice
The Subcommittee has proposed a modification to the rule that is intended to make clear that the “best notice practicable” may include notice by email or other electronic means. This is intended to remedy a perceived issue that the courts are reluctant to endorse electronic notice as a substitute for first class mail due to statements in the Supreme Court’s now 40-year decision in Eisen v. Carlisle & Jacquelin that best notice practicable is first class mail, when feasible.
Many attendees agreed that a specific reference to electronic notice would be a good idea and would help keep the rule consistent with modern technology and practice. However, concerns included that electronic mail may deprive lower-income individuals of adequate notice in certain cases. Another concern was whether the wording that the Subcommittee had proposed could be read to prioritize electronic notice over more traditional forms of notice.
Topic 9: Pick-Off and Rule 68
The rule changes being considered by the Subcommittee on this issue include proposing to amend Rule 68 to state that it does not apply to class actions brought under Rule 23, in an effort to put an end to the tactic of picking off putative class representatives by attempting to moot their individual claims with an offer of judgment.
Most of the attendees agreed that given the shift toward agreement in the federal Circuits that an unaccepted offer of judgment does not moot class claims, along with the fact that the Supreme Court has granted certiorari on that very issue in Campbell-Ewald Company v. Gomez, it would be premature to propose any significant revisions to the rules dealing with Rule 68 offers.
Posted in Articles, Class Action Trends, tagged 2014, 2015, antitrust, ascertainability, bakerhostetler, banking, class action, class certification, data privacy, employment, international class action, labor, securities, year-end on February 16, 2015| 4 Comments »
BakerHostetler’s 2014 Year-End Review of Class Actions (and what to expect in 2015) was published on February 2, and is available for download at the firm’s website. This annual summary is a joint effort of numerous attorneys throughout the firm, but for the second year in a row, the 2014 edition was ably edited by Dustin Dow in the firm’s Cleveland Office.
As the title suggests, the 59-page document provides a comprehensive update on the key decisions and trends in a variety of subject matter areas, including consumer protection, insurance, banking, data privacy, antitrust, securities, and labor and employment, as well the latest procedural developments impacting class action practice, both throughout the United States and abroad.
It’s free, so don’t miss it!
16th Annual Class Actions Institute In Review – Session 2 – “The Class Definition That Works . . . or Does It?”
Posted in Class Action Decisions, Practice Tips, rule 23, tagged ascertain, ascertainability, carr, class action, class certification, class definition, class member, class membership, collateral estoppel, fail-safe, failsafe, klonoff, numerosity, overbreadth, overbroad, overly broad, preclusion, predominance, res judicata, sullivan, vagueness on November 5, 2012| 4 Comments »
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.
Issue – The class definition is too vague and indefinite to determine who is in the class.
Example – Heisler 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.
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.
Example – Nudell 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.
Problem – Class includes members who did not suffer injury or who have no legal right to recover.
Examples – Sanders 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.
Posted in Class Action Decisions, Class Action News, Class Action Trends, Consumer Class Actions, Employment Class Actions, Securities Class Actions, Supreme Court Decisions, tagged all writs act, ascertainability, AT&T Mobility, class action waiver, class arbitration waiver, collateral estoppel, concepcion, consumer class action, expert witness discovery, fast food class action, hooters, mcdonald's class action, oppression remedy, rule 26(a)(2), securities class action, wage and hour class action on November 9, 2010| 4 Comments »
It’s back! We can’t promise that it will appear weekly, so we changed the name to Class Action Blogosphere “Periodic” Review. But, as always, we have combed through our favorite blogs and news feeds to bring our readers up to speed on a some of the notable developments in class action news.
The End of Consumer Class Actions as We Know Them?
One story is, by far, the biggest news in the class action world. Today, the U.S. Supreme Court will hear argument in the case of AT&T Mobility Services v. Concepcion. The key issue is whether class action exemptions in consumer contracts are enforceable even when state contract law bars such exemptions. AT&T argues that the Federal Arbitration Act preempts state contract law. Thus, if a class action exemption is tied to an arbitration clause it is enforceable despite contrary law at the state level. For an accessible read, check out Brian T. Fitzpatrick’s story in the San Francisco Chronicle…
… and see also
- this commentary from ProfessorBainbridge.com
- this short CAB entry
- this report from Ted Frank at Point of Law
- this editorial from guest commentator Charles Moore at The Legal Pulse:
- this oral argument preview from Kimberly A. Kralowec of The UCL Practitioner
All Writs Act Better than Collateral Estoppel
Class action defense lawyers may have a new tool to use against copycat class actions; particularly those involving plaintiffs’ lawyers who attempt to extort settlements through threat of discovery. It’s called the All Writs Act. It was used by Judge Posner in the Seventh Circuit to grant an injunction blocking a copycat class action in another jurisdiction. The case is called Thorogood v. Sears, Roebuck & Co. For more information check out Andrew Trask’s November 10 post on Class Action Countermeasures. Judge Posner even cites Trask’s new book, The Class Action Playbook. (See CAB Review of the book here).
For a slightly different take on Posner’s decision, read Russell Jackson’s post on Consumer Class Actions & Mass Torts.
Motion to Dismiss + Discovery = Motion Granted?
The Rule 12(b)(6) Motion to Dismiss can sometimes feel like a mini-motion for summary judgment. Over the years, courts have been more willing to consider information beyond merely the pleadings including documents that are referenced by plaintiffs and central to their claims. Anything more is supposed to convert the motion to dismiss into a motion for summary judgment, right? Maybe not. One court has apparently permitted discovery in the context of a Rule 12 Motion to dismiss. Get the story in a post titled Preemption, Pleading & Rule 11 at Drug and Device Law.
Big Changes Coming for Rule 26 and Expert Witnesses
The communications between attorneys and their expert witnesses are currently discoverable in federal court. Not for long. Federal Rule 26 is about to change in a way that will protect certain communications between counsel and expert. The rule change will also extend work product protection to the draft reports of experts. Check out the latest post in the North Carolina Business Litigation Report.
Hooters Waitresses Have no Class … Action?
Always read the fine print. According to the Washington Post, whatever the Supreme Court decides in AT&T Mobility Services vs. Concepcion may have ramifications for a class of waitresses trying to sue Hooters. You see, the job application has an arbitration clause that bars lawsuits.
Oppress Me, Please
Professor James C. Morton reports on a Canadian decision allowing class certification of a case seeking the remedy of “oppression” in his blog, Morton’s Musings. Doesn’t sound like a very pleasant remedy to us, but they march to the beat of their own drummer north of the border.
You Mean to Tell Me that Fast Food Makes you Fat!?
Sean P. Wajert of Mass Tort Defense reports on a recent decision denying class certification to a plaintiff seeking to hold a fast food chain responsible for allegedly misleading consumers into thinking that its fare poses no health risks.
Securities Class Action Filings Down
As reported in the Conference Board’s Governance Center Blog by guest contributor Anthony Galban, Sr. V.P. of Chubb & Son, securities class action filings are down significantly in 2010.
Hot Pockets are Fast and Tasty
Greg Mersol of Baker Hostetler’s new Employment Class Action Blog reports on the latest in a series of California decisions denying class certification in a wage and hour case seeking to hold an employer liable for not ensuring that its employees to take meal breaks.
Describe that Class for Me Again?
The Complex Litigator‘s H. Scott Leviant reviews a recent California Court of Appeal decision holding that class certification was not appropriate because the proposed class was not ascertainable.
Posted in Lawyers' Resources, Practice Tips, Uncategorized, tagged ascertainability, class action book, class action playbook, class action practice guide, class action scholarship, class certification, class certification brief, numerosity, plain language notice, practice tip, trask on October 12, 2010| 5 Comments »
Andrew Trask, author of the blog Class Action Countermeasures, recently sent me an advance copy of a new book that he co-authored with O’Melveny partner Brian Anderson: The Class Action Playbook (Oxford University Press 2010). The title is self-explanatory, and the book lives up to its name. It’s clear after just a few pages that the authors are eloquent writers who know their way around a class action. The book as a whole provides an anatomy of a class action from pre-filing to discovery, trial or settlement, appeal, and even post-judgment collateral attack. Each section contains concrete practice tips in addition to a discussion of the applicable legal principles and procedural requirements. Aside from being an accessible and comprehensive practitioner’s guide to litigating class actions, the book is filled with entertaining quips and illustrations that make the book an enjoyable read from cover to cover. Here are some examples:
On ascertainability as component of the numerosity requirement (pp. 23-24):
A merits-based (also known as a “fail-safe”) class is like Schrödinger’s cat: until the verdict, there is no way of telling whether the class has 1,000 members or none at all.
On drafting class certification briefs (p. 135):
Indeed, class-action litigation can sometimes seem almost fractal in nature. From the 30,000-foot view the plaintiff advocates, all issues look common: contracts are uniform, misrepresentations are substantially similar, and reasons for not hiring are all part of a larger pattern or practice. But from the close-up view the defendant advocates, every class member is unique, and common proof could never resolve everyone’s claims. One could say that the outcome of the class certification debate turns on whether the court decides that the lawsuit is best viewed through a telescope or a microscope.
On the importance of plain language notice (p. 185):
Most adults who pay with a credit card, use a cell phone, or drive a car have seen at least one class notice in their lives. Class notices have a reputation for being long and opaque, reading much like the credit cards agreements, cell phone calling plans, or warranties that the plaintiff complained about in the first place. Some of this complexity is unavoidable: It is extremely difficult to balance accuracy and clarity, and the presence of lawyers likely tips the scale in the wrong direction. . . .
I highly recommend the Class Action Playbook to fellow practitioners and their clients as well as students, judges, and academics alike. Very well done, gentlemen.