Pretrial Filings to Influence Certification TUESDAY, NOVEMBER 10, - - PowerPoint PPT Presentation

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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

• f 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
• f 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
• therwise 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 michael.daly@dbr.com

Stephen A. Loney

Hogan Lovells US LLP 1835 Market Street, 29th Floor Philadelphia, Pennsylvania 19103 P: 267.675.4677 stephen.loney@hoganlovells.com

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

• f 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

EARLY?

Prior to certification:

Unlikely to be approved Any advantage can also be realized by targeted early discovery planning.

THE NORM

Fold it into certification process:

This is what the courts expect – most likely to be approved.

LATER

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

• f 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

• f 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

• rder 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

73

Changes to Federal Rules of Civil Procedure Nothing new in Rule 23, BUT….

74

• Several Federal Rules to be amended as
• f 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 michael.daly@dbr.com

Stephen A. Loney

Hogan Lovells US LLP 1835 Market Street, 29th Floor Philadelphia, Pennsylvania 19103 P: 267.675.4677 stephen.loney@hoganlovells.com