Class Action and Fee Agreement

							Class Actions

  FRCP Rule 23 – note the Prerequisites to a Class Action
     Rule 23(b) 1-3 elements must also be present
     Rule 23(c) requires the court to “certify” the action – what does
      this mean?
     Why are the notice requirements so strict and detailed?
     How are settlements handled?
     Can you appeal a certification decision? Note the time limits
     What are the requirements for selection and approval of counsel?
     How are attorneys fees awarded?
  History
     Note the initial skepticism that greets class claims
     Note the particular areas where class action rights have been
      modified: Securities Fraud, Immigration cases, Legal Services
      cases
Class Actions

 Initiation of a Class Action Suit
   Certification –
       Requirement of a Class;
       The Class Representative must be a member of the Class
       Joinder of all members must be impracticable – too many
       Questions of law and fact that are common to the Class
       Representative claims or defenses are typical of the Class
   General Telephone v. Falcon
       Note the requirement that administrative remedies be exhausted
       Is there a difference between an individual act of discrimination
        and a policy of discrimination?
   Will the action “fairly and adequately protect the interest of
    the Class”?
Class Actions

  Rule 23(b) – Kinds of actions that are maintainable
       (b)(1) Prejudice Class Actions – no opting out
       (b)(2) Injunctive and Declaratory Relief – what is meant by the action
        only having to be “generally applicable” to the class?
       (b)(3) Damage Class Actions – class members claim to have been
        injured in the same way by the defendants – used in mass torts cases –
        note the “predominate” and “superior” issues, and the four factors to be
        considered in deciding those questions
   Castano v. American Tobacco – why did the Court reverse the
    certification of this class – do you agree?
   Hybrid Class Actions – a mixture of 23(b) elements
   Notice – to whom, and in how much detail, and the need to avoid
    legalese, and who pays the cost of notice
Class Actions

 Orders Appointing Class Counsel – Rule 23(g)
 Interlocutory Appeals from Certification Orders
 Orders regulating the conduct of pretrial and trial
   Single trials
   Bifurcated trials
   Sampling process
   Fluid class recovery
 Settlement
   Money damages
   Coupon Settlement
 Attorneys’ Fees – are they excessive? What is a lodestar fee?
Class Actions

 Due Process Considerations
  Hansberry v. Lee – has the litigant whose rights are affected
   by a decision been granted due process? Key is whether their
   interests are adequately represented by those who are present
   in the action.
      Since the parties purportedly bound by the agreement at issue
       did not share a unified view of the agreement – some believing
       it was valid and others disagreeing, no class of identical
       interests could be certified.
      This decision reflects that the adequacy of representation is
       reviewed at the certification stage, and again upon review – and
       that courts must be vigilant in examining potential conflicts
       among class members.
Class Actions & Jurisdiction
 Subject Matter Jurisdiction
   Which class members should the Court look to in determining
    diversity and amount in controversy jurisdiction?
       Supreme Tribe v. Cauble establishes that the citizenship of
        named parties is all the Court need review for diversity
       The recent Supreme Court decision in Exxon v. Allapattah
        suggests that the USDC first looks to the amount in controversy
        as to the named parties, and then, per 128 U.S.C. § 1337(a), the
        Court can decide whether it can exercise supplemental
        jurisdiction over the remaining claims, or apply the Zahn test.
Class Actions & Jurisdiction
 Personal Jurisdiction
   Phillips Petroleum v. Shutts – the due process rights of class
    action member plaintiffs are not the same, or as extensive, as
    those of defendants – and the right to opt out is a further
    protection of those plaintiff class members to choose to be
    represented by others in the class action – based thereon, the
    absence of minimum contacts between those members and the
    forum state and court is not a basis for attacking jurisdiction.
        Note the Court’s analysis and decision of the choice of law
         issue
        See Note 1 for the outcome on remand on the choice of law
         issue
   Venue – here again, we look only to the residence of the class
     representatives, and not that of the other class members
Class Actions – Settlement Classes
 Amchem v. Windsor
   Note the procedure used here – the settlement was negotiated
    and then all relevant pleadings were filed simultaneously
   The USSC majority, while agreeing that settlement is relevant
    to determining the propriety of a class certification, does not
    give it the priority that the USDC, and the dissenters on the
    Supreme Court, give it. Who is right on this issue?
   Is the Majority’s decision designed to force Congress to act?
   Should we ignore the differences in class members for the
    greater good a settlement will achieve?
 Ortiz v. Fibreboard – Limited fund class actions are very
  difficult to administer in unliquidated damages cases
 Possible Solutions – legislation, or subclasses approach