Civil Procedure II Outline - Part 4

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

1. prosecuting separate actions by or against individual class members would create a risk of:
   1. inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or
   2. adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;
2. the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or
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. The matters pertinent to these findings include:
   1. the class members’ interests in individually controlling the prosecution or defense of separate actions;
   2. the extent and nature of any litigation concerning the controversy already begun by or against class members;
   3. the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and
   4. the likely difficulties in managing a class action.
      • Analysis of 23(b) a party seeking class certification must also satisfy one of three subsections of rule 23b
        • 23(b1) The prejudice class
          • Recognizes that these kinds of prejudice can be avoided or mitigated by using a different more ambitious joinder divide: a class action treating the missing person as members of the class. Hence the shorthand phrase, prejudicial class for both the rule 23b1
        • 23(b)(2)
          • This subsection authorizes the maintenance of a class action where in addition to satisfying rule 23(a) “the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
            • Rule 23b2 is intended for class seeking primarily injunctive or declaratory relief not money damages.
              • Intended for those groups hoping to achieve broad based injunctive relief rather than cases in which a lawyer located a plaintiff and brought a class action in the hope of a fee.
          • Cohesiveness.
            • Because actions certified under this subsection do not allow individual members to opt out corts demand that the class be cohesive or that members be bound together through pre existing or continuing legal relationships or by some significa common trait such as race or gender.
          • The injunctive relief or civil rights class action.
            • Civil rights actions and employment discrimination actions often seek primilary injunctive relief: an injunction ordering the defendent to stop viiolating the plaintiffs civil rights, to stop discriminating in hiring or to sop discrimintin in pormotion and to promote those agaisnt whom it had discriminated.
              • Key to b2 class is the indivisible nature of the injunctive relief or declaratory remedy warranted the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them
        • 23b3
          • Certification under this subsection requires that “ the questions of law or fact common to the members of the class predominate over any question affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
          • Predominance
            • When making the determination as to predominance of utmost importance is whether the issue is common to the class and subject to generalized proof or whether it is instead an issue unique to each class member.
              • To evaluate predominance, the district court must examine the type of evidence needed to establish a plaintiff's case.
                • If to make a prima facie showing on a given question the members of a proposed class must present evidence that varies from member to member, then it is an individual question for purposes of rule 23B3 if the same evidence will suffice for each member to make a prima facie showing then it becomes a common question.
          • Superiority
            • The second test under rule 23b is whether the class action is superior to other reliable methods for the fair and efficient adjudication of the controversy. IN evaluating property the court must consider four non-exclusive factors.
              • The interest of the members of the class in individually controlling the prosecution or defense in separate actions
              • The extent and nature of any litigation concentrating the controversy already commenced by or against members of the class
              • The desirability of undesirability of concentrating the litigation of the claims in the particular form
              • The difficulties likely to be encountered in the management of a class action.
          • The damages class actions
            • Must putative class actions seeking damages are certified under rule 23b
              • Authorizes certification of a damages class action only if despite the variable of many questions of fact and law among class members a class action o=is more efficient than individual actions, the common questions predominate and the putative class members are given the chance to skip the class
                • To opt out from the class leaving them free to pursue their own action but also excluding them from the benefit of any class judgment.
          • Efficiency Calculus
            • How does rule 23b3 suggest that a court should make the efficey judgement.
              • First it has to assure that the questions common to class members predominate over any individualized questions.
                • In deciding predominance courts have considered a number of factors including whether
                  • The substantive elements of class members claims require the same proof for each class member.
                  • The proposed class is bound together by a mutual interest in resolving common questions more than it is divided by individual interest
                  • The resolution of an issue common to the class would significantly advance the litigation
                  • One or more common issues constitute significant parts of each class members individual case
                  • The common questions are central to all of the members claims
                  • The same theory of liability is asserted by or against all class members and all defendants raise the same basic defenses.
              • Second Superiority
                • Requires a finding that the class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
                  • Here the rule does not leave the court at sea; it lists pertinent facts that balance the prospect and existence of individual actions against the desirability and manageability of class actions.
                    • Vs single actions, joinder

(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.

1. Certification Order.
   1. Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.
   2. Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).
   3. Altering or Amending the Order. An order that grants or denies class certification may be altered or amended before final judgment.
2. Notice.
   1. For (b)(1) or (b)(2) Classes. For any class certified under Rule 23(b)(1) or (b)(2), the court may direct appropriate notice to the class.
   2. For (b)(3) Classes. For any class certified under Rule 23(b)(3)—or upon ordering notice under Rule 23(e)(1) to a class proposed to be certified for purposes of settlement under Rule 23(b)(3)—the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice may be by one or more of the following: United States mail, electronic means, or other appropriate means.The notice must clearly and concisely state in plain, easily understood language:
      1. the nature of the action;
      2. the definition of the class certified;
      3. the class claims, issues, or defenses;
      4. that a class member may enter an appearance through an attorney if the member so desires;
      5. that the court will exclude from the class any member who requests exclusion;
      6. the time and manner for requesting exclusion; and
      7. the binding effect of a class judgment on members under Rule 23(c)(3).
3. Judgment. Whether or not favorable to the class, the judgment in a class action must:
   1. for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and
   2. for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.
4. Particular Issues. When appropriate, an action may be brought or maintained as a class action with respect to particular issues.
5. Subclasses. When appropriate, a class may be divided into subclasses that are each treated as a class under this rule.

(d) Conducting the Action.

1. In General. In conducting an action under this rule, the court may issue orders that:
   1. determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;
   2. require—to protect class members and fairly conduct the action—giving appropriate notice to some or all class members of:
      1. any step in the action;
      2. the proposed extent of the judgment; or
      3. the members’ opportunity to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or to otherwise come into the action;
   3. impose conditions on the representative parties or on intervenors;
   4. require that the pleadings be amended to eliminate allegations about representation of absent persons and that the action proceed accordingly; or
   5. deal with similar procedural matters.
2. Combining and Amending Orders. An order under Rule 23(d)(1) may be altered or amended from time to time and may be combined with an order under Rule 16.
   • Analysis of
     • 23c2b requires that rule 23b3 class members each be afforded individual notice where practicable.
       • For a large class this can be expensive and as we shall see below it is usually an expense carried by the party who seeks class certification
     • Second the notice must afford each class member an opportunity to request exclusion from the class- to opt out.