Presenting a live 90-minute webinar with interactive Q&A Summary Judgment in Class Action Litigation: Plaintiff and Defense Strategies for Filing Motions Leveraging Motions to Dispose of Claims, Establish Liability, or Improve Settlement Posture THURSDAY, JUNE 22, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: David R. King, Partner, Herrick Feinstein , Newark, N.J. Jeremy N. Nash, Counsel, Lite DePalma Greenberg , Newark, N.J. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-869-6667 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 35.
Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to “Conference Materials” in the middle of the left - • hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon. •
SUMMARY JUDGMENT IN CLASS ACTION LITIGATION: DEFENSE STRATEGIES LEVERAGING MOTIONS TO DISPOSE OF CLAIMS, ESTABLISH LIABILITY, OR IMPROVE SETTLEMENT POSTURE David R. King dking@herrick.com
Why Class Actions are Different Procedural Complexity 1) Driven by Plaintiff’s Attorneys – Not Their Clients 2) Stakes are High 3) Certification is the Key Battle 4) 6
Initial Pleadings: Motions to Dismiss and Motions to Strike Class Allegations -Typically brought together, in lieu of an answer 7
Motions to Dismiss Purposes: Simplify the Case: Attack Legally Defective Claims Set the Tone: Aggressive Defense Educate the Court About The Plaintiffs’ Flaws 8
Motions to Dismiss Strategic Considerations 1. Common Defense Approach: Why Not? Any downside to filing a motion to dismiss? Given stakes of class action litigation, cost not typically a reason not to move Courts expect to see motions to dismiss in class actions Losing motion to dismiss will not typically affect settlement value. 9
Motions to Dismiss Strategic Considerations 2. Significant potential upside: May winnow the case down May knock out high damage claims (e.g., consumer fraud, treble damage claims) May position the case for a more favorable settlement 10
Motions to Dismiss Strategic Considerations 3. Depending on the basis of motion, may or may not impact claims against other class members: Attacks based on factual allegations specific to class representatives may allow for repleading with a new class representative Plaintiff will have to locate another representative without the same defect 11
Motion to Strike Class Allegations Purposes: Take an early shot at defeating a class action Send a strong message that the plaintiffs are in for a battle Establish weaknesses with a particular class representative Potentially avoid costs of class certification briefing 12
Motion to Strike Class Allegations Strategic Considerations Not allowed with all Judges/Courts – Do your research Some courts shift burden of proof to defendants on a motion to strike 13
Motions to Strike Case Example: Pilgrim v. Universal Health Card, LLC, 660 F.3d 943, 949 (6th Cir. Ohio 2011) (appropriate to strike class claims where no “discovery or . . . factual development” would alter the central defect in the class claim). 14
Motion to Strike Class Allegations Strategic Considerations Best attacks are based on predominance (FRCP 23(b)(3) and ascertainability – defects in class definition If not an incurable defect, motion to strike may educate Plaintiffs’ counsel and enable them to cure an issue before the certification motion Courts typically give option to replead 15
Motion to Strike Class Allegations Strategic Considerations Choose your battles – do not bring a weak motion to strike Weak motions may actually set the plaintiffs up for a successful certification motion – predispose the Judge 16
Pre-certification Motions: Summary Judgment Purposes: To defeat a class, or at least a class representative’s claims, before certifications avoiding the cost of the certification process avoiding the cost and burden of class with discovery avoiding the risk of escalation of settlement value at certification To educate the Court, and class counsel, on flaws in the Plaintiffs’ case 17
Pre-Certification: Summary Judgment Case Example: Powers v. Credit Mgmt. Servs., Inc. , 776 F.3d 567, 571 n.1 (8th Cir. 2015) (“Although a district court must determine whether to certify a class at ‘an early practicable time’ in the litigation, Rule 23(c)(1)(A), it is not uncommon for a district court to rule on a summary judgment motion that will clarify or simplify the litigation prior to ruling on class certification.”). 18
Pre-certification Summary Judgment Motions Strategic Considerations Winning is great – but it may not end the case 1) No res judicata effect on other class members Other lawsuits can be brought But other plaintiffs will have a strike against them 19
Pre-certification Summary Judgment Motions Strategic Considerations 2) Losing motions can still help your case Motion may force plaintiff to commit to a position Position may be used against them on Certification motion Lose the battle but win the war 20
Pre-Certification Summary Judgment Motions Case Example: Barnes v. Am. Tobacco Co. , 161 F.3d 127, 133-34 (3d Cir. 1998) (noting that trial court decertified class “[a] fter reviewing the summary judgment record ,” because “the individual issue of addiction, which plaintiffs had previously represented as playing no part in this case, is still actually part of the present case”). 21
Pre-certification Summary Judgment Motions Strategic Considerations 3) Losing motions can affect settlement value adversely May knock out a defense that could have been used during negotiations 22
Pre-certification Summary Judgment Motions Strategic Considerations 4) Moving before all discovery complete Two edged sword: May avoid costs of discovery May lose because discovery is incomplete 23
Newark | Chicago | Philadelphia Newark | Chicago | Philadelphia Plaintiffs’ Perspective: Summary Judgment Practice In Class Actions Jeremy Nash PART I: Precertification jnash@litedepalma.com
Overview: Parts I & II. In class actions, whether a plaintiff can or should move for summary judgment changes over the course of a case. Part I: The period of time leading up to the filing of the class certification motion. Part II: The period of time between filing the class motion and completion of class notice, and the period of time between completion of class notice and trial. 25
Part I: Plaintiffs’ Precertification Summary Judgment Strategies and Tactics. A. District Courts’ Discretion To Schedule Precertification Merits Motions. B. Why Plaintiffs Ordinarily Do Not Seek Early Merits Determinations. C. The Implications For Plaintiffs Of Defendants’ Precertification Summary Judgment Motions. D. Strategies and Tactics To Keep Defendants’ Early Merits Motions Off The Calendar. 26
A. District Courts’ Discretion To Schedule Precertification Merits Motions. In class actions, district court judges have broad discretion in deciding when to schedule summary judgment motions. “ At an early practicable time “[ T]he use of the word after a person sues or is sued ‘practicable’ is a signal to as a class representative, the judges to ‘ weigh the court must determine by order particular circumstances of whether to certify the action particular cases and decide as a class action.” concretely what will work.’” Rule 23(c)(1)(A) Villa v. San Francisco Forty-Niners, Ltd. , 104 F. Supp. 3d 1017, 1020 (N.D. Cal. 2015) (quoting Wright v. Schock , 742 F.2d 541, 543 (9th Cir. 1984)). 27
Recommend
More recommend
