The language of Rule 23 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only.
The time set in the former rule at 10 days has been revised to 14 days. See the Note to Rule 6.
Rule 23 is amended mainly to address issues related to settlement, and also to take account of issues that have emerged since the rule was last amended in 2003.
This chapter examines the steps consumer lawyers can take to protect the class efficiently and effectively throughout the different stages of litigation. The steps can be divided into three timeframes: before the complaint is filed, after the complaint is filed but before the class has been certified, and after the class is certified. With that framework in mind, this chapter discusses:
Timing and procedure are always critical in litigation. This is especially true in class actions because the problems and issues inherent to complex litigation are amplified. “The aggregation of a large number of claims and the ability to bind people who are not individual litigants tend to magnify [those] problems and issues, increase the stakes for the named parties, and create potential risks of prejudice or unfairness for absent class members.”4
The reasons for taking care to preserve documents are straightforward. A class member’s claim frequently depends upon the existence of records in the defendant’s possession. Missing records can extinguish a class member’s rights or at least make a proof of claim much more difficult, if not impossible. Destruction of records also may prove damaging to the class as a whole. For example, missing records may make it impossible for the plaintiff to prove numerosity or the extent and illegal nature of the defendant’s conduct.
Abraham Lincoln said, “[g]ive me six hours to chop down a tree and I will spend the first four sharpening the axe.” As with all litigation, much of the most important work on a case begins long before the complaint is filed. In order to protect the class, it is good practice for a consumer lawyer to spend a significant amount of time doing pre-suit investigation, which will enable class counsel to start the case in a strong position and with a good command of key evidence.
To lessen the odds of document destruction (be it on purpose or by accident), it is essential to take steps at the beginning of the lawsuit to ensure that the defendant does not destroy records. Case law imposes a “duty to preserve material evidence . . . not only during litigation but also . . .
The Federal Rules of Civil Procedure include requirements governing electronically stored information (ESI). ESI differs from paper information in many respects—for example, in volume, variety of sources and formats, dynamic quality, and hidden information (such as metadata and embedded data). ESI is dependent on the system that creates it. Deleting information from a computer usually does not erase it completely. These factors make both preservation and discovery of ESI more complicated than paper discovery.
If a case management order is not issued soon after the lawsuit is commenced—or if the defendant’s lawyer will not agree in writing that the defendant has taken the steps set out above—the plaintiff should bring a motion for a document preservation order.38 The Federal Rules of Civil Procedure provide authority for a federal court to order the preservation of documents.
Even if a judge denies a motion for a document preservation order, it is important that the plaintiff’s lawyer obtain, at some point during the argument on the motion, a statement by the defendant’s lawyer that the defendant has been told to preserve class members’ files.48 If corporate management and its lawyers have knowledge that a document retention policy will result in destruction of relevant documents in the absence of a preservation order, and they nevertheless do not issue a preservation directive, it is tantamount to an intentional de
Most defendants in consumer class actions do not engage in inappropriate communications with putative class members concerning the pending litigation. But some defendants do, in an attempt to render the claims moot or convince class members to: (1) opt out; (2) release their claims; (3) enter into out-of-court settlements; or (4) compromise their factual situations in some way.50 Hopefully, those kinds of issues will not arise, but it is important to be aware of possible problems and how to address them.
While this section is concerned with improper defense contact with class members—before and after class certification is granted—it is also helpful to consider related case law that has arisen in the context of contact with class members by plaintiff’s counsel and by objectors. The key Supreme Court decision setting forth criteria for non-communication orders is Gulf Oil Co. v.
The American Bar Association’s Standing Committee on Ethics and Professional Responsibility has issued a formal opinion on the issue of contact by counsel with putative members of a class prior to class certification.62 The formal opinion recognizes that, “[b]efore a class action has been certified, counsel for plaintiff and defense have interests in contacting putative members of the class” and that Model Rules of Professional Conduct 4.2 and 7.3 do not generally prohibit counsel for either party “from communicating with persons who may in the
Once the class has been certified, the defendants’ lawyers may not communicate directly with class members because the plaintiff’s lawyer represents all class members.85 State rules of professional responsibility based on the American Bar Association’s (ABA) Rule of Professional Conduct 4.286 invariably prohibit counsel from communicating with a party known to be represented by a lawyer, and class members must be treated as parties represented by a lawyer.87
Complaints are often the first document that judges and law clerks review in order to familiarize themselves with the case. A well-written and persuasive complaint can set the framework for positive court consideration of the case.1 The complaint should educate the judge about the context of the particular violation that the class has alleged—and persuade the judge that the facts and law support class certification and the merits of the claims.
A class action complaint should be drafted to withstand the judicial scrutiny that will be undertaken according to the standards applied by the forum court. The pleading should contain a complete statement of all facts and the legal elements necessary to show entitlement to class certification and relief on the merits of the claims. It should be written in anticipation of an immediate motion to dismiss by the defendants.
Federal Rule of Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the pleader is entitled to relief” so that defendants will have “fair notice of what the plaintiff’s claim is and the grounds upon which it rests.”15 Under the Supreme Court decision in Conley v.
In 2016, the Supreme Court decided Spokeo, Inc. v. Robins,28 which considered whether the plaintiff had Article III standing to redress a bare procedural violation of the Fair Credit Reporting Act (FCRA). The violation in Spokeo involved a credit reporting agency publishing inaccurate information about the consumer on its website. The Court decided that, to have standing, a plaintiff must have suffered or faced a material threat of a concrete, particularized injury—a bare procedural violation does not suffice.
Class complaints generally have the following sections:
Because the complaint will serve as the basis for class certification, it must carefully address each of the specific requirements set forth under Rule 23. Given that, at least in federal court, the allegations in the complaint will not be presumed to be true for the purposes of class certification, it is important to provide sufficient factual bases for establishing Rule 23 elements. As discussed above, these issues usually fit naturally in the “Class Action Allegations” section of the complaint.
1. Class Definition
“Claim-splitting” refers to the general requirement that all claims for relief arising from a single transaction or occurrence must be brought in one action.67 A subsequent suit, arising from the same transaction or events underlying a previous suit would be barred under the doctrine of res judicata.68
There are a variety of special pleading techniques that may be used in conjunction with class litigation. This section contains some of them.
1. Pleading Based on Information in the Possession of the Defendants
If there is information that is in the possession of only the defendant, such as a class list, then the appropriate allegations may be made based upon that information. This pleading may be important to verify that the defendant has the information, such as the proposed class list.
2. Pleading on Information and Belief
Conduct a thorough review of the underlying facts with the potential class representative before the complaint is filed. Make sure that the class representative understands the factual allegations that form the basis of the defendant’s wrongful conduct. To the extent possible, educate the class representative on the basic legal theories under which the case will be prosecuted.