Class Action Strategy & Practice Guide

Name: Class Action Strategy & Practice Guide
Brand: American Bar Association
Price: 137.99 EUR
Availability: OnlineOnly

Gregory C. Cook Jocelyn D. Larkin(Herausgeber*in)

American Bar Association (Verlag)

Erschienen am 19. August 2019

448 Seiten

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Inhalt

Intro
Title Page
Copyright Page
Contents
About the Contributors
Foreword
Chapter 1: Introduction
Chapter 2: Investigating and Filing a Class Action
Introduction
Evaluating a Potential Class Action: The Basics
Could This Case Be a Class Action?
Advantages and Disadvantages of a Class Action
Alternatives to Class Actions
Pre-filing Investigation and Discovery
Clients
Potential Defendants
Related Litigation or Investigations
Evidence Preservation
Experts
Identifying Class Representatives
Typicality
Adequacy
How Many Class Representatives?
American Pipe Tolling
Assembling a Team of Co-Counsel
Selecting Which Claims to Assert
Assessing the Available Claims
Amenability to Certification
Selecting a Venue
Federal Court Actions
Venue and MDL
State Court Actions and CAFA
Other Factors to Weigh in Selecting Venue
Addressing Choice of Law Issues
Which Choice of Law Rules Apply?
What Substantive Law Applies?
Choice of Law Issues in MDLs and Transfers
Strategic Calls Relating to Choice of Law
Defining the Class
Components of a Good Class Definition
Multiple Classes and Subclasses
Class Definition and Ascertainability
Drafting the Complaint and Class Allegations
Plausible Set of Facts, Not Bare Allegations or Legal Conclusions
Media-Friendly Introductory Paragraph
Class Definition and Class Allegations
Compelling Individual Stories with a Caution
Non-Class Claims for Named Plaintiffs?
Selection of Remedies
Meeting Demand or Exhaustion Requirements
Developing a Case Narrative and Communication Strategy
Themes and Case Narrative
Communication Tools
Media Strategy
Conclusion
Chapter 3: Defendant's Options for Forum Selection
Forum Options for Defendants
Moving to Compel Arbitration
Advantages and Disadvantages of Arbitration
Is There a Written Agreement to Arbitrate?
Is the Written Agreement Enforceable?
Who Decides Whether the Arbitration Agreement Is Enforceable?
What Does the Agreement Say about Class-Wide Proceedings and Who Decides?
What If Some Members of the Class Are Subject to Arbitration but the Named Plaintiff Is Not?
Moving to Enforce a Forum Selection Clause
Removing to Federal Court
The Advantages and Disadvantages of State Court
Procedures for Removal
Moving to Transfer Venue
Options for Defendants Facing Multiple Class Actions in Multiple Forums
The First-Filed Rule: Multiple Suits Pending in Federal Court
State Law Abatement Statutes: Multiple Suits Pending in the Courts of the Same State
Colorado River Abstention: Federal Abstention in Favor of a Pending State Court Action
Challenging Personal Jurisdiction for Class Members in the Wake of Bristol-Meyers Squibb
Conclusion
Chapter 4: Responding to the Class Action Complaint
Early Case Assessments
Investigating the Claim
Evaluating the Case
Analyzing and Quantifying the Risk
Developing a Defense Strategy
Early Resolution Strategy
Mooting Plaintiffs' Claims and the Class Allegations
Pre-Suit Refund and Argue for Dismissal
Post-Filing Pickoffs Generally Will Not Work
Recalls and Other Relief May Limit Class Action Risk
Beware of Catalyst Fees
Jurisdiction/Venue/Arbitration
Evaluating Venue
Options for Changing Venue: Removal
Challenges to Personal Jurisdiction
Motion to Transfer Venue
MDL Transfer
Arbitration
Motion to Dismiss Strategy
Arguments against Filing a Motion to Dismiss
Defending Class Actions Requires the Long View
Arguments in Favor of Filing a Motion to Dismiss
Common Dismissal Arguments
Motion to Strike Class Allegations
Legal Basis for Motion to Strike
Timing of Motion
Motion to Deny Certification
Burden of Proof
Grounds for Motion to Strike
Answering the Class Action Complaint/Affirmative Defenses
Developing Defense Themes and Narrative
Chapter 5: Class Action Discovery Strategy
Plaintiffs' Discovery Strategy
Consider Seeking Discovery Despite a Motion to Dismiss
Merits/Class Bifurcation
How to Maximize Pre-certification Discovery
How Much Pre-certification Discovery to Propound-Be Targeted
How to Conduct Efficient Pre-certification Depositions
Shifting Discovery Costs
Defense Discovery Strategy
Stay Pending Motion to Dismiss
Merits/Class Bifurcation
Other Ways to Limit Pre-certification Discovery
Shifting Discovery Costs
Offensive Discovery
Pre-certification Access to Class List
Communication with Putative Class Members
Discovery Concerning Communications between Plaintiffs' Counsel and Putative Class Members
Discovery against Absent Class Members
ESI Considerations
Rolling Productions
Conclusion
Appendix: Sample Working Proof Outline
Rule 23(a)
Chapter 6: Summary Judgment Strategy
History of the Relationship between Class Certification and Summary Judgment
Class Certification or Summary Judgment: Which Should Come First?
Strategic Considerations: Defendants
What Issues Are Often Raised in Pre-certification Motions for Summary Judgment?
Plaintiff's Strategy Considerations
What Extraordinary Circumstances May Warrant a Plaintiff's Motion for Summary Judgment?
What Can Plaintiff's Counsel Do to Avoid the Likelihood of an Early Summary Judgment Motion by Defendants?
Conclusion
Chapter 7: Class Certification Strategy
Class Certification Basics
Plaintiff's Strategy
Defense Strategy
Interplay between Merits and Class Certification
Motions to Deny Class Certification or to Strike Class Allegations
Class Definition and Ascertainability
Objectivity
Independence (Avoiding the "Fail-Safe" Class)
Establishing and Challenging Numerosity
Establishing and Challenging Commonality
Establishing and Challenging Typicality
Establishing and Challenging Adequacy
Injunctive Relief and Limited Fund Classes
Plaintiff's Strategy
Defense Strategy
Damages Classes
Establishing and Challenging Predominance
A Word about Experts
Establishing and Challenging Superiority
Issue Certification-Rule 23(c)(4)
Appointment of Class Counsel
Appellate Strategy
Conclusion
Chapter 8: Managing Multiple Class and Enforcement Actions
MDL Consolidation
Strategic Concerns
The Mechanics of MDL Consolidation
Procedural Concerns
Common Questions of Fact
Number and Complexity of Questions
Convenience of Parties and Witnesses
Judicial Efficiency
When Is the Best Time to File the MDL Motion?
How to Conduct the Actions after Consolidation
Determining Leadership and Working Protocols
Filing the Consolidated Amended Complaint
Pursuing Exemplar-State Class Actions
Bristol-Myers Squibb Co. v. Superior Court of California's Effect on Consolidated Lawsuits
Remand and Trial
Coordination among Actions When MDL Is Not Available
Parallel Government Enforcement Actions
Advantages and Disadvantages
Criminal Issues and Fifth Amendment Concerns
Stays
Conclusion
Chapter 9: Class Action Settlement
Judicial Review of Class Action Settlements
Scope of Rule 23(e)
Court Review of Class Settlements
Protecting the Settlement: Negotiating Key Terms
The Order of Negotiations
Settlement Term Sheet
Settlement Classes and Certification
Common Fund versus Claims Made Monetary Settlements
Claims Processing
Scope of the Release
Unclaimed Funds
Incentive Awards for Named Plaintiffs
Notice
Determining Attorney Fees
Injunctive Relief, Monitoring, and Compliance
The Settlement Approval Process
Preliminary Approval-New Attention
Fairness Hearing and Final Approval
Objectors
CAFA Compliance and Coupons
Coupon Settlements
CAFA Notice
Conclusion
Chapter 10: Trial Plans
Competing Strategic Considerations
Plaintiff's Perspective
Defense Perspective
Context: The Trial of Class and Collective Actions
Possible Elements of a Trial Plan
Standard Trial Plan Elements
Bifurcation
Issue Certification under Rule 23(c)(4)
The Teamsters Model
Representative Testimony
Conclusion
Chapter 11: How to Properly Use and Attack Experts in Class Actions
Determining the Need for and Type of Expert
Consulting/Non-Testifying Experts versus Testifying Experts
When to Use Expert Testimony
Areas of Expertise, Qualifications, and Scope
Uses for Experts in Class Actions
Use of Consulting Experts in Pre-filing Investigation or Early Case Evaluation and Discovery Planning
Role for Experts at Class Certification
Role of Experts at Trial
Conclusion
Table of Cases
Index

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