using class action trial plans and other pretrial filings to...
TRANSCRIPT
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Presenting a live 90-minute webinar with interactive Q&A
Using Class Action Trial Plans and Other
Pretrial Filings to Influence Certification
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, NOVEMBER 10, 2015
Michael P. Daly, Drinker Biddle & Reath, Philadelphia
Todd Jackson, Feinberg Jackson Worthman & Wasow, Oakland, Calif.
Stephen A. Loney, Jr., Hogan Lovells, Philadelphia
Adam W. Hansen, Nichols Kaster, Minneapolis
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A D A M H A N S E N
N I C H O L S K A S T E R , P L L P
CLASS ACTION TRIAL PLANS:
T O D D J A C K S O N
F E I N B E R G , J A C K S O N , W O R T H M A N
& W A S O W , L L P
Other contributors include Barry Goldstein of Goldstein, Borgen, Dardarian & Ho, Katherine M. Kimpel
of Sanford Heisler Kimpel, LLP, and Anna P. Prakash of Nichols Kaster, PLLP.
Strategic Use During Certification, Decertification,
Summary Judgment, Discovery and Trial
I. PRE-FILING CHECKLIST
I. PRE-FILING CHECKLIST
Identify core claims and core proof needed
• Examine Claims: assess typicality
• Examine Proof: assess commonality (i.e., amount of common
proof)
7
I. PRE-FILING CHECKLIST
Map out corporate structure and interrelations
• Work with clients to outline smaller scale corporate structures,
with special attention to reporting structures and lines of
responsibility
• Explore large scale organizational structures, with focus on (1)
financial and legal relationships and (2) practical office and
geographical considerations
• Confirm the legal entity paying the client – check the check!
8
I. PRE-FILING CHECKLIST
Identify and define class as clearly as possible
• Class members: assess ascertainability
• Definition: avoid failsafe class
• Scope: be flexible, realistic and (sometimes) conservative
9
I. PRE-FILING CHECKLIST
Venue & Jurisdiction
• Consider the Class Action Fairness Act
• Consider Arbitration Issues
10
I. PRE-FILING CHECKLIST
Class Members as Witnesses
• Identify scope of available witnesses
• Identify needed number to prove up case and start to consider
selection variables for arguments about representivity at
certification and trial (i.e., geographic location, job position,
time period, etc.)
• Consider whether use of Equal Pay Act in gender
discrimination cases can assist in this process
11
I. PRE-FILING CHECKLIST
Defendants and their Agents as Witnesses
• Identify PMKs/30b6 witnesses and key decision makers
• Again, start to consider selection variables for arguments about
representivity at certification and trial (i.e., knowledge over
practices affecting all class members vs. some, knowledge for
entire class period vs. portion, etc.)
12
I. PRE-FILING CHECKLIST
Documents, Systems, and Data
• Review how defendant is organized (i.e., locations, hierarchy,
central decisionmaking, etc.) for purposes of necessary
discovery requests
• If possible, identify common systems and places where
systems differ (SAP, POS, and payroll systems, HR
documents, written policies, and periods of implementation,
etc.)
13
I. PRE-FILING CHECKLIST
Experts and Damages
• Think about predominance
• What is your theory of damages and does it apply to everyone?
• What do you need to calculate damages (data, experts, etc.)?
• Consult expert if needed for purposes of filing
14
II. DISCOVERY CHECKLIST
15
II. DISCOVERY CHECKLIST
Shape discovery around your trial plan
• How can you reinforce common themes?
• What do you need to win certification?
• What will be decided prior to trial and what do you need to
make that happen?
• How do you want the proof to come in at trial and what do you
need to make that happen?
• Think about damages and predominance now, do not wait.
16
II. DISCOVERY CHECKLIST
Document Requests/Data/E-Docs
• Ask for what you need to sharpen your class definition
• Database with class information and key data fields (consider
identifiers vs names)
• What do you need for damages?
• Phrase in terms of common proof (i.e., the policy or policies in
place during class period pertaining to xyz action).
• 30(b)(6) tech/PMK on key systems
• Ascertaining class members/claims/damages within those
systems (may need consultant)
17
II. DISCOVERY CHECKLIST
• Experts (see Certification/Decertification Checklist below
for more details)
18
II. DISCOVERY CHECKLIST
Requests for Admission
• Narrow the issues for trial and also certification
• Admissions as to numerosity
• Admissions as to policy documents covering entire class
period
19
II. DISCOVERY CHECKLIST
Depositions
• Video – key trial planning and preparation in long class cases
• Defendants: question witnesses without injecting any divisions
of class or time period unless prompted
• Can testimony about “variations” be summarized by a
common theme?
• Plaintiffs: prep with common themes present
20
II. DISCOVERY CHECKLIST
Samples and Representivity
• Absent class members
• Collective members in FLSA litigation
• Try for a stipulation to avoid later trouble
• Cherry-picking vs random selection vs defense selection
• Class data – samples vs. production of all data
• Is the sample truly representative?
• Stipulation against arguing against representivity
21
II. DISCOVERY CHECKLIST
Statements and Class Members
• Draft early template for declarations at certification – avoid
cookie cutter declarations
• Consider reaching agreement on contact with putative class
members early.
22
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
23
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Organize the Proof
• Core documents that explain what can be decided on a class-
wide basis
• Core data that will be used on class-wide basis
• Declarations from class members
• Have assessments of declaration witnesses by multiple
decision makers
• Review declaration with witness on phone to ascertain
accuracy
24
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Experts
• Statistics
• Data experts
• Social science experts
• Industrial Organizational Psychologists
• Unconcious Bias/Implicit Bias
• Other Social Science Testimony
• Damages experts
• Survey experts
• Daubert issues
• Comcast issues
25
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Damages calculations
• Decide what methodology will work
• Running the full calculation vs. just saying you can
• Consider summary judgment
26
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
“Individualized Issues”
• Determine possible issues and necessary steps to try for class
• Expert analysis needed at class cert, if any
• Consider suggesting alternatives to decertification (i.e., special
master, issue class, etc.)
27
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Draft fully developed trial plan
• Full trial proof outline for each claim/defense
• Key claims and proof for each element, including witnesses
and documents
• Write out why those witnesses and documents speak to all
class members’ claims
• Decide expert’s role
• Decide bifurcation and carefully consider what to present/hold
back
28
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Share trial plan (or a portion) with court as an exhibit
• Consider a mock verdict form showing how questions are
answered on a classwide basis
• Consider written summary highlighting common proof and
common themes
29
IV. PRE-TRIAL CHECKLIST
30
IV. PRE-TRIAL CHECKLIST
What kind of trial is it?
• Is it a jury trial or a judge trial? Or both? Or arbitration too?
• Who are your witnesses talking to?
• What kind of appellate review will you be encountering?
31
IV. PRE-TRIAL CHECKLIST
Do you need to make changes to the trial plan?
• Make changes if necessary, but make them known
• Are there things you want to be teeing up for appeal?
32
IV. PRE-TRIAL CHECKLIST
How can you narrow the scope of trial through pre-trial
briefings?
• Motions in limine: not just for standard evidentiary disputes.
• Keep certification issues out; certification is legal, not factual
• But present proof in a manner consistent with certification
• Get the special verdict form and proposed jury instructions in
front of the judge as early as possible
• Communicate with the court and opposing counsel
33
IV. PRE-TRIAL CHECKLIST
Consider drafting key post-trial issues to see if that changes
trial plan
• Anticipate things that might come up during trial, e.g.:
• evidentiary disputes raised through examination
• JNOV
• How do you avoid judicial intervention? (e.g. controlling
excessive jury verdicts)
34
V. TRIAL CHECKLIST
35
V. TRIAL CHECKLIST
Verdict form
• Consistent with trial plan?
• Consistent with expert/damages methodology?
• Damages – option for individual determinations or class as a
legal entity?
36
V. TRIAL CHECKLIST
Proof
• What is the best way to get your common proof in?
• Assess which documents are vital to case in chief and what is
more likely simply rebuttal
• Where possible, reach agreement on documents to be
introduced and stipulate to admission
• Consider using demonstratives, summary exhibits, or special
presentation methods to help fact-finders understand and
remember key documents
37
V. TRIAL CHECKLIST
Plaintiff witnesses
• Who will be called?
• If representivity/samples not decided, try to reach agreement with defendant
• If randomized/representative, develop a plan for outreach
• If not randomized, research necessary geographic, job title, job level and experience considerations and identify witnesses to cover all if possible
• Consider letting defendant call whomever they want (within a reasonable number) to appeal-proof verdict
• Preparation! Preparation! Preparation! Be sure to work with Plaintiffs so they are comfortable hitting common class themes in response to a range of questions, friendly and hostile.
• Anticipate and disarm any potential factual landmines that might otherwise contribute to a motion to decertify. Again, preparation!
38
V. TRIAL CHECKLIST
Defense witnesses
• Assess who to call in your case in chief – it’s not just liability, it is also certification at stake.
• Assess who is necessary to introduce documents and where agreement with Defendants will vitiate need to call witnesses
• Assess who is likely to be unavailable and depose by video prior to trial.
• Assess whether a trial deposition is necessary on witnesses previously deposed, witnesses previously deposed as 30(b)(6)/PMK designees, and where not previously deposed
• Use each witness, even if called by the Defense, to build on your common themes and on other evidence relevant to certification (e.g. centralized decisionmaking, relevant policy application, etc.)
39
V. TRIAL CHECKLIST
Expert witnesses
• Assess whether necessary and when to put on
• Avoid surprises by making methodology and calculations
known well in advance of trial
• Use demonstratives to make more accessible to the jury
40
A D A M H A N S E N
N I C H O L S K A S T E R , P L L P
CLASS ACTION TRIAL PLANS:
T O D D J A C K S O N
L E W I S , F E I N B E R G , L E E
& J A C K S O N , P . C .
Strategic Use During Certification, Decertification,
Summary Judgment, Discovery and Trial
The Strategic Use of Pretrial Filings to Oppose Class Certification: Defendants’ Perspective
Michael P. Daly Drinker Biddle & Reath LLP
One Logan Square, Ste. 2000
Philadelphia, PA 19103
P: 215.988.2604
Stephen A. Loney Hogan Lovells US LLP
1835 Market Street, 29th Floor
Philadelphia, Pennsylvania 19103
P: 267.675.4677
Overview
• A Primer on Rule 23(b)(3)
• Strategic Use of Pretrial Filings
• Using Trial Plans to Oppose Certification or
Decertify Class
• Potential Impacts of New Federal Rules
and Supreme Court Decisions
43
Why Is This Important?
Certification can create hydraulic pressure to settle
frivolous claims in order to avoid ruinous liability:
• Fed. R. Civ. P. 23(f), 1998 Advisory Committee Note (“certification …
may force a defendant to settle rather than incur the costs of defending
a class action and run the risk of potentially ruinous liability”)
• In re Visa Check/MasterMoney Antitrust Litig., 280 F.3d 124, 148 (2d Cir.
2001) (“Even a defendant who is innocent and holy may rationally
choose to pay a few hundred million dollars in settlement of a class
action rather than ‘run the risk of ruinous liability.’”)
• In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1298 (7th Cir. 1995)
(“They may not wish to roll these dice. That is putting it mildly. They
will be under intense pressure to settle.”)
44
What Are The Prerequisites of Rule 23?
• Rule 23(a)
― Ascertainability
― Numerosity
― Commonality
― Typicality
― Adequacy
AND
• Rule 23(b)(3)
― Predominance
― Superiority
45
EACH AND EVERY FACTOR MUST BE SATISFIED
SO, EACH AND EVERY FACTOR MUST BE ESTABLISHED IN CLASS CERTIFICATION AND/OR TRIAL PLAN
What About (b)(1) and (b)(2)?
Rule 23(b)(2) applies to classes seeking a single injunction for all:
“[A]pplies only when a single injunction or declaratory judgment
would provide relief to each member of the class.”
“It does not authorize class certification when each individual
class member would be entitled to a different injunction or
declaratory judgment....]
“Similarly, it does not authorize class certification when each class
member would be entitled to an individualized award of monetary
damages…. [W]e think it clear that individualized monetary
claims belong in Rule 23(b)(3).”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557-58 (2011).
46
What Does (b)(3) Require?
“A class action may be maintained if Rule 23(a) is
satisfied and if: …
(3) the court finds that the questions of law or fact
common to class members predominate over any
questions affecting only individual members, and that
a class action is superior to other available methods
for fairly and efficiently adjudicating the
controversy….”
Fed. R. Civ. P. 23(b)(3) (emphasis added).
47
What is Predominance?
“Subdivision (b)(3) encompasses those cases in which a
class action would achieve economies of time, effort, and
expense, and promote uniformity of decision as to
persons similarly situated, without sacrificing procedural
fairness or bringing about other undesirable results….”
Fed. R. Civ. P. 23(b)(3), 1966 advisory committee notes (emphasis
added)
48
What is Predominance?
“What matters to class certification ... is not the raising
of common ‘questions’—even in droves—but, rather the
capacity of a classwide proceeding to generate common
answers apt to drive the resolution of the litigation.
Dissimilarities within the proposed class are what have
the potential to impede the generation of common
answers”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2557-58 (2011)
(discussing Rule 23(a)).
49
What is Superiority?
“The matters pertinent to these findings include:
(A) the class members’ interests in individually controlling the
prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the
controversy already begun by or against class members;
(C) the desirability or undesirability of concentrating the
litigation of the claims in the particular forum; and
(D) the likely difficulties in managing a class action."
Fed. R. Civ. P. 23(b)(3) (emphasis added).
50
What is Superiority?
“That common questions predominate is not itself sufficient to
justify a class action under subdivision (b)(3), for another
method of handling the litigious situation may be available
which has greater practical advantages…. [S]ubdivision (b)(3)
requires, as a further condition of maintaining the class action,
that the court … should consider the problems of management
which are likely to arise in the conduct of a class action.”
Fed. R. Civ. P. 23(b)(3), 1966 advisory committee notes
51
Plaintiff Bears The Burden of Proof
52
“Rule 23 does not set forth a mere pleading standard. A party
seeking class certification must affirmatively demonstrate his
compliance with the Rule—that is, he must be prepared to prove
that there are in fact sufficiently numerous parties, common
questions of law or fact, etc…. Because respondents provide no
convincing proof of a companywide discriminatory pay and
promotion policy, we have concluded that they have not
established the existence of any common question.”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2551, 2556 (2011)
(emphasis added)
Vehicles For Opposing Certification
53
• Moving to Strike
• Moving to Dismiss
• Answering the Complaint
• Moving to Require a Trial Plan
• Responding to a Certification Motion
• Petitioning for an Interlocutory Appeal
• Moving to Decertify Before/During Trial
Motions to Strike Class Allegations
54
• The gist of a motion to strike is that it is clear from the
complaint that a class action could not be certified.
• I.e., there is no need to wait until after discovery.
• Examples: Fail-safe, overbroad, or unascertainable classes.
• Various procedural hooks have been used:
• Fed. R. Civ. P. 23(d)(1)(D) (“the court may issue orders that: … require
that the pleadings be amended to eliminate allegations about
representation of absent persons and that the action proceed accordingly”)
• Fed. R. Civ. P. 12(c) (“After the pleadings are closed—but early enough not
to delay trial—a party may move for judgment on the pleadings.”)
• Fed. R. Civ. P. 12(f) (“The court may strike from a pleading an insufficient
defense or any redundant, immaterial, impertinent, or scandalous matter.”)
Motions to Strike Class Allegations
55
PROS:
• May educate the Court
• Court may start to think of
the case as unmanageable
• Could result in allegations
being stricken
• Could increase leverage if
there is an early settlement
• As the movant, defendant
gets to frame the issues and
gets the last word in reply
CONS:
• May educate the Plaintiff
• Court may start to think of the
case as a class action
• Could result in bad law of the
case being made
• Could decrease leverage if
there isn’t an early settlement
• As the movant, defendant may
in some courts have to bear an
unstated burden of persuasion
Moving to Dismiss
56
• A motion to dismiss will not in and of itself defeat certification.
But it can be a valuable opportunity to shape the field of battle.
• Plaintiffs often try to survive dismissal by arguing that their
claims depend on facts that require discovery and/or a jury:
• misleading oral statements, ambiguities in agreements,
equitable tolling of limitations, unusual “injuries in fact,”
application of different states' laws
• Plaintiffs would presumably make those points at deposition too,
but it is best to have counsel commit to them in writing as well.
• Plaintiff may be judicially estopped from disclaiming factual
nature of claims after surviving dismissal on that basis
Answering the Complaint
57
• The Answer is not just an opportunity to respond to allegations.
Is it also a powerful tool for increasing the burden on Plaintiffs.
• How?
• Fed. R. Civ. P. 8(c)(1) (“In responding to a pleading, a party must
affirmatively state any avoidance or affirmative defense ….”)
• Fed. R. Civ. P. 13(a)(1) (“A pleading must state as a counterclaim
any claim that … the pleader has against an opposing party if the
claim … (A) arises out of the transaction or occurrence that is the
subject matter of the opposing party's claim.” (emphasis added))
• Fed. R. Civ. P. 13(b) (“A pleading may state as a counterclaim
against an opposing party any claim that is not compulsory.”
(emphasis added))
Answering the Complaint
58
“Because the Rules Enabling Act forbids interpreting Rule
23 to ‘abridge, enlarge or modify any substantive right,’
a class cannot be certified on the premise that Wal-Mart
will not be entitled to litigate its statutory defenses to
individual claims.”
Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2561 (2011).
Moving to Require a Trial Plan
59
• “Difficulties in managing a class action” includes conducting a
trial and instructing a jury. Fed. R. Civ. P. 23(b)(3)(D).
• “A critical need is to determine how the case will be tried.
An increasing number of courts require a party requesting class
certification to present a ‘trial plan’ that describes the issues
likely to be presented at trial and tests whether they are
susceptible of class-wide proof.” Fed. R. Civ. P. 23(c)(1),
2003 advisory committee notes.
Moving to Require a Trial Plan
60
A trial plan should account not only for differences in evidence but
also for differences in the law that will apply:
•“For the most part, courts determine manageability by reviewing
affidavits, declarations, trial plans, and choice-of-law analyses that
counsel present.” Manual for Complex Litigation (Fourth) §21.142
(2004).
•In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293, 1300 (7th Cir. 1995)
(reversing certification and criticizing proposed plan to conduct “a
single trial before a single jury instructed in accordance with no
actual law of any jurisdiction — a jury that will receive a kind of
Esperanto instruction, merging the negligence standards of the 50
states and the District of Columbia”).
Moving to Require a Trial Plan
61
• It is well-settled that Plaintiffs have the burden of proving that
trial would be manageable, and that trial courts should deny
certification if they cannot satisfy that burden:
• Espenscheid v. DirectSAT USA, LLC, 705 F.3d 770 (2013) ("If class counsel is
incapable of proposing a feasible litigation plan though asked to do so, the
judge's duty is at an end.")
• Madison v. Chalmette Ref., L.L.C., 637 F.3d 551 (5th Cir. 2011) (“We must
reverse because, ‘in its certification order, the [district] court did not
indicate that it [had] seriously considered the administration of the trial.
Instead, it appears to have adopted a figure-it-out-as-we-go along
approach….”)
• Robinson v. Texas Auto. Dealers, 387 F.3d 416, 425 (5th Cir. 2004) (“The …
court abused its discretion by … not conducting any kind of analysis or
discussion regarding how it would administer the trial.”)
Moving to Require a Trial Plan
62
• Several appellate courts have recommended that plaintiffs (or
that trial courts encourage them to file) file formal “trial plans”:
• Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) (“[T]he
proposal of a workable trial plan will often go a long way toward
demonstrating that manageability concerns do not excessively
undermine the superiority of the class action vehicle. We therefore
recommend that district courts make it a usual practice to direct
plaintiffs to present feasible trial plans, which should include
proposed jury instructions, as early as practicable….”)
• Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d 179,
186 n.7 (3d Cir. 2006) (“the pre-certification presentation of the
aforementioned trial plans represents an advisable practice within
the class action arena.")
Moving to Require a Trial Plan
63
• But courts have not held that a separate “trial plan” is required.
Rather, many expect that Plaintiffs will address manageability in
their class certification motions:
• Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) (“We do
not mean to say that submission of a trial plan by the plaintiff is
necessarily a prerequisite, as a matter of law, … in every case.”)
• Feder v. Elec. Data Sys. Corp., 429 F.3d 125 (5th Cir. 2005) (“We did
not hold in Robinson … that the submission of a trial plan was a
prerequisite….”)
• Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 n.4 (9th Cir. 2005)
(“We decline Ford’s suggestion that the district court’s failure to
adopt a trial plan or to articulate how the class action would be
tried was an abuse of discretion.”)
When to Seek a Trial Plan EA
RLY
? Prior to certification:
Unlikely to be approved
Any advantage can also be realized by targeted early discovery planning.
THE
NO
RM
Fold it into certification process:
This is what the courts expect – most likely to be approved.
LATE
R
Post-certification:
If class certified without plan, consider moving post-certification to set up motion to de-certify or put tighter parameters around further proceedings
64
Moving to Require a Trial Plan
65
PROS:
• Will educate Court about the need
for a trial plan
• Expose gaps in Plaintiff’s inability
to propose a manageable trial plan
• Can make this request in opposition
to a motion to certify class or in
support of a motion to decertify
class
• Force Plaintiffs to define and
narrow the scope of post-
certification arguments and
discovery
CONS:
• Will educate Plaintiff about the
need for a trial plan and motivate
a disorganized plaintiff to get
their ducks in a row
• Will give Plaintiff more pages
with which to brief this and other
Rule 23 prerequisites
Responding to a Certification Motion
66
• Be methodical. Identify every “issue that is central to the
validity of each one of the claims” and demonstrate that
classwide proceeding will not “generate common answers apt to
drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551.
• That means identifying every essential element of every claim,
every defense, and every counterclaim, and analyzing what law
applies to them and what facts would prove or disprove them.
Strategy in Response to Certification Motion: Poking Holes in the Trial Plan
Common trial plan pitfalls to highlight in complex cases:
Lack of specificity -- trial plan simply regurgitates class
certification arguments without specifying HOW each element
will be proved at trial. See MP Vista, Inc. v. Motiva Enter.,
LLC, 286 F.R.D. 299, 313 (E.D. La. 2012) (rejecting trial plan
that “largely ignore[d] the specifics of how a trial might
proceed”
Over-complicating – being too ambitious in describing the
anticipated proofs can swallow plaintiffs’ common issues.
Common issue in multi-phase trial plans.
Over-simplifying – plan glosses over thorny manageability,
commonality, predominance or superiority issues in an attempt
to make claims appear more manageable than they are.
67
Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996), is instructive on
each of these points.
Guiding Principles: Due Process as a Class Certification Defense
• Defendants should highlight their
fundamental constitutional right to a
fair trial
• Constitutional Due Process means the
defendant has the right to insist that
every element of every claim be
proven.
• If a trial plan does not establish how
each and every element will be proven,
it is defective
68
Petitioning for an Interlocutory Appeal
69
• Appeal is discretionary. Fed. R. Civ. P. 23(f) (“A court
of appeals may permit an appeal from an order
granting or denying class-action certification….”).
• The Bad News: On average across all circuits, only
25% of Defendants’ petitions for permission to appeal
are granted. (Average is even lower if Plaintiffs file.)
• The Good News: If a petition is granted, courts are
likely to disfavor certification. On average across all
circuits, orders granting certification were reversed
70% of the time.
Petitioning for an Interlocutory Appeal
70
PROS:
• If petition is granted, trial
court’s certification order
may be reversed before
further discovery or trial.
• May convince courts to stay
proceedings pending review
of petition and then appeal.
CONS:
• If petition is denied, trial
court and plaintiff’s counsel
may feel emboldened by what
is only a procedural ruling.
• Stay is not automatic. Movant
must convince either trial or
appellate court to issue stay.
Moving to Decertify Before/During Trial
71
• Most courts are reluctant to reconsider their prior orders.
• However, certification orders are inherently preliminary and
subject to review and revision in light of new evidence, etc.
• Timing and positioning is critical:
• A reflexive motion to reconsider based on same record; or
• A reflective motion to decertify based on complete record
Moving to Decertify Before/During Trial
72
PROS:
• May give court a procedural
vehicle for vacating prior
order due to new evidence
• May give the defendant
leverage for a settlement.
CONS:
• May give court a procedural
vehicle for correcting errors in
prior ruling before an appeal.
Potential Impact of Forthcoming SCOTUS Review
Tyson Foods, Inc. v. Bouaphakeo • If defendants prevail, ability to create trial plan that
relies on aggregate or average statistical data analysis to prove damages will be curbed even further.
Spokeo v. Robins • If defendants prevail, proof of damages in trial plan will
have to include individualized concrete harm, even under statutes providing for automatic statutory damages.
Campbell-Ewald v. Gomez • Expected to settle questions of proving typicality and
adequacy where individual plaintiff has received offer of judgment
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Changes to Federal Rules of Civil Procedure Nothing new in Rule 23, BUT….
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• Several Federal Rules to be amended as
of December 1, 2015. Amendments
emphasize early and effective judicial
case management.
• It starts with Rule 1, which impacts how
all other rules should be interpreted –
Advisory Committee Notes emphasize the
parties’ obligations “to secure the just,
speedy and inexpensive determination of
every action”
• Courts are encouraged to get a handle on
cases early and make sure discovery is
targeted and proportional to the claims
involved.
Changes to Federal Rules of Civil Procedure Nothing new in Rule 23, BUT….
• Rule 26 is specifically amended to
curb fishing expeditions
― 26(b)(1) amended to eliminate
the phrase, “reasonably
calculated to lead to the
discovery of admissible
evidence”
― 26(c)(1)(B) amended to expressly
recognize the courts’ ability to
allocate discovery expenses in
protective orders
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Potential Further Changes to Federal Rules: What’s happening to Rule 23?
Advisory Committee Subcommittee on Rule 23 has been working on proposed
changes all year
Advisory Committee met just last week to
consider proposed changes to Rule 23:
• Tighter requirements on defining a class
to ensure ascertainability
• Amending Rule 23(b)(3) to make the
predominance element subject to
subsection (b)(4) – effectively authorizing
issue classes
• Amending Rule 23(f) to permit immediate
interlocutory appeal from any order deciding as part of issue-class structure
• Considering alternatives to Rule 68 offer of judgment rules that could
effectively resolve the mootness issues presented in Campbell-Ewald
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Any Questions?
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Michael P. Daly Drinker Biddle & Reath LLP
One Logan Square, Ste. 2000
Philadelphia, PA 19103
P: 215.988.2604
Stephen A. Loney Hogan Lovells US LLP
1835 Market Street, 29th Floor
Philadelphia, Pennsylvania 19103
P: 267.675.4677