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Federal Practice Manual for Legal Aid Attorneys: 7.2.13 Rule 23(b)(2) Classes

Class certification under Rule 23(b)(2) is far more common than (b)(1) classes and the traditional class action tool for poverty lawyers. Under Rule 23(b)(2), the class must show that the defendant acted in a way “generally applicable” to class members, making classwide declaratory and injunctive relief appropriate.3571 In Wal-Mart, the Court held:

Federal Practice Manual for Legal Aid Attorneys: 7.2.15 Defendant Classes

This chapter is focused on the certification of plaintiff class actions, with named plaintiffs litigating on behalf of absent class members. Litigation on behalf of a Rule 23(b)(2) class can obtain systemic injunctive and declaratory relief against a defendant whose practices and policies have injured a number of similarly situated individuals.

It is also worth referencing here the existence of defendant class actions, which are:

Federal Practice Manual for Legal Aid Attorneys: 7.3.2 Defining the Class

Rule 23(c)(1)(B) provides that a class action certification order “must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).”3649 Rule 23(c)(1)(C) provides that the class may be defined or redefined at any time before final judgment.3650 This may occur either following a motion of either party or by the court.3651 Thus, counsel should reevaluate the initially drafted definition as discov

Federal Practice Manual for Legal Aid Attorneys: 7.3.4 Geographic Scope

Counsel must consider whether there is ongoing or planned litigation in the same or an overlapping geographical area. If other attorneys are likely to bring the same or a very similar case in a different geographic area soon, limiting the geographic size of the class may be recommended. While expanding the geographic scope may help in establishing numerosity, complications can arise with commonality, management of the class, and relief.

Federal Practice Manual for Legal Aid Attorneys: 7.3.5 Common Claims and Injuries

To assure standing of the class representatives, the class definition should be tied to the injury suffered by all class members and to the “one stroke” relief sought.3656 For example, rather than drafting a class definition as “all inpatients of X psychiatric hospital,” it is better to define the class more specifically as “all inpatients of X psychiatric hospital who, since [date] have been or will be placed in isolation or restraints without written standards or appeal rights.” The latter definition more precisely shows that the class me

Federal Practice Manual for Legal Aid Attorneys: 7.3.6 Precertification Discovery

After counsel has selected and defined the class and filed suit, the next questions are whether the court will allow pre-certification discovery and what the scope of that discovery will be. The two main issues frequently encountered by advocates are: (1) whether discovery related to the existence of the class should be permitted before class certification; and (2) whether discovery on the merits should be held in abeyance until the motion for class certification is determined.

Federal Practice Manual for Legal Aid Attorneys: 7.4.2 Interlocutory Appellate Review of Denial or Grant of Certification

Rule 23(f) authorizes a circuit court, in its discretion, to permit an interlocutory appeal of an order granting or denying class certification. A petition for permission to seek appeal must be filed with the circuit clerk within 14 days after the district court order is entered (with the exception of a Rule 23(e)(1) order regarding notice of proposed settlement).3713 Under the Rule, “[c]ourts of appeals wield ‘unfettered discretion.’”3714

Federal Practice Manual for Legal Aid Attorneys: 7.4.4 Communication With Class Members

Class counsel frequently want to communicate informally with potential class members. Plaintiffs’ counsel may wish to keep class members informed of the status of the litigation, as well as seek supporting evidence. Defense counsel may also want to obtain information from absent class members, or may wish to compromise or settle their claims.3746 The question of whether plaintiffs’ counsel or defendant’s counsel can have access to information identifying class members or communicate with them during litigation arises regularly.

Federal Practice Manual for Legal Aid Attorneys: 7.5.2 Notice and Settlement

As with many other aspects of class actions, during notice, settlement and fairness proceedings, the court is the protector of the class or putative class. Some courts describe the role of the court at this stage of the proceedings as a fiduciary one.3769 Individual litigants are generally free to compromise their claims and plaintiffs are free to dismiss them voluntarily or, if the complaint has been answered, with the agreement of the defendant under Federal Rule of Procedure 41(a).

Federal Practice Manual for Legal Aid Attorneys: 7.5.3 Fairness Hearings

After preliminary approval of the proposed settlement, the court will order the parties to send the court-approved notice to class members3801 and it will schedule a “fairness hearing” to address final approval. This typically triggers the opportunity for class members to object prior to or at the hearing, or in the case of Rule 23(b)(3), to opt out of the class.

Federal Practice Manual for Legal Aid Attorneys: 9.1.3 Taxation of Damages and Other Financial Impacts on Clients

A client's recovery of damages and award of attorney’s fees can result in unintended and harmful impacts. Attorneys should counsel their clients as early as possible about these potential harms and options to mitigate their impact. Money damages, whether achieved through settlement or awarded by a court, are often taxable and, in many cases, so are the associated attorney’s fees regardless of whether these fees are turned over to the client.

Federal Practice Manual for Legal Aid Attorneys: 9.2.0 Entry of Judgment

[SECTION 9.2 IS UNDERGOING REVISION]

Section 9.2 updated 2013 by Anne Louise Blanchard

A case concludes in the district court by entry of judgment pursuant to Federal Rule of Civil Procedure 58.4375 The judgment generally includes whatever relief is ordered by the court. It usually refers to any prior or contemporaneous decision adjudicating liability and any ruling on relief when appropriate relief is disputed.

Federal Practice Manual for Legal Aid Attorneys: 9.2.2 Negotiated Settlements

Judgments arrived at, in whole or in part, by negotiation have the potential advantage of far greater specificity than a court might otherwise order.4377 When an effective remedy requires major changes in an agency’s mode of operation, such as promulgating new rules, establishing new practices, and monitoring implementation and outcomes, truly workable results often can be more effectively obtained through negotiation than a court-fashioned decree.4378 Courts generally are reluctant to get i

Federal Practice Manual for Legal Aid Attorneys: 9.2.5 Conditional Stipulations of Dismissal

Basing a settlement on the defendant’s compliance with certain conditions is not uncommon. Such conditional stipulations of dismissal can be simple, with full compliance anticipated almost immediately, or complex, involving detailed structural changes in agency practices requiring phased compliance over several years. Such stipulations often contain specific provisions for monitoring and enforcement.

Federal Practice Manual for Legal Aid Attorneys: 9.2.6 Drafting Consent Decrees or Other Remedial Orders

Other issues and factors need to be considered when preparing to negotiate a settlement designed to implement systemic change in the defendant’s policies or practices.4402 Some of the more common issues are: (1) defining the class and choosing defendants; (2) statement of facts and goals; (3) declaratory relief; (4) admission of liability; (5) implementation plan; (6) regulations; (7) defining compliance; (8) monitoring compliance; (9) funding; (10) duration of the decree; (11) retention of jurisdiction; (12) specifying grounds for modifica

Federal Practice Manual for Legal Aid Attorneys: 9.2.8 Statement of Facts and Goals

To make express the basis of the parties’ agreement and to guide resolution of any future disputes, a recitation in the decree of the critical facts and the goals that the parties seek to further by entering into the decree may be helpful.4408 Such a statement is especially appropriate in a proposed decree in a class action as a predicate to a fairness hearing to establish that the decree fairly and adequately resolves class claims. This may be set forth in an introductory section or in detail.

Federal Practice Manual for Legal Aid Attorneys: 9.2.11 Implementation Plan

The decree itself should specify the details of who will do what, and by when, to accomplish the desired changes in institutional behavior, or the decree should contain a blueprint for the process of developing such an implementation plan. For example, in a more straightforward case, where the parties are able to agree in advance on what steps are necessary to accomplish the agreed-upon performance changes, such as issuance of new procedures and training of staff, the decree can simply specify the timetable for such actions.

Federal Practice Manual for Legal Aid Attorneys: 9.2.12 Regulations

An appropriate remedy often requires the agency to promulgate new regulations to correct or replace an invalid policy or practice. Incorporating the actual text of the new regulation(s) in the decree has the advantages of certainty, because the parties know exactly what they are agreeing to, and security, because the defendants cannot alter the regulation without a court-granted modification under Federal Rule of Civil Procedure 60.

Federal Practice Manual for Legal Aid Attorneys: 9.2.13 Defining Compliance

If at all possible, the decree itself should define, in objectively measurable terms, what constitutes compliance. The decree should not, for example, state merely that persons are entitled to timely services, or to treatment in the least restrictive setting, but actually define what “timely” and “least restrictive” mean in a manner not subject to reasonable dispute. A court may refuse to enforce an overly vague decree.4424

Federal Practice Manual for Legal Aid Attorneys: 9.2.14 Monitoring Compliance

In any case where ongoing compliance is at issue, plaintiffs must ensure that a formal monitoring process will inform them whether there are compliance problems. Although relying on anecdotal case information, statistics or reports obtained through another method, such as Freedom of Information Act requests or formal discovery is possible, it is more desirable for the decree itself to detail an effective monitoring system.