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Consumer Class Actions: 6.3.4 Specific Actions Relating to Preserving ESI

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.

Consumer Class Actions: 6.3.6 Arguing the Motion

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

Consumer Class Actions: 6.4.1 Potential Problems with Improper Defense Contact

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.

Consumer Class Actions: 6.4.2 Overview: Allowance and Restriction of Contact

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.

Consumer Class Actions: 6.4.3 Defense Communication with Putative Class Members Pre-Certification

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 t

Consumer Class Actions: 6.4.4 Defense Communication with Class Members After Certification

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

Consumer Class Actions: 10.1 Introduction

This chapter focuses on the requirements for getting a class certified under Federal Rule of Civil Procedure 23 (Rule 23). Many state class action procedures are patterned after Rule 23, but there are state-to-state differences that must be taken into account. State procedural variations from Rule 23 are detailed in Appendix C, infra, which also analyzes the case law in each state interpreting those procedures.

Consumer Class Actions: 10.3.3.1 Generally

Rule 23 requires that the claims or defenses of the representative parties be typical of, or align with, the claims or defenses of the class so that the interests of class members “will be fairly and adequately protected in their absence.”117 The typicality requirement is met if the named representative’s claims are essentially the same as those of the class at large and if the named representative’s claims arise from the same course of conduct giving rise to the claims of other class members.118

Consumer Class Actions: 10.3.3.2.1 Introduction

In federal court cases, the extent to which the plaintiff’s claims are typical is sometimes raised by the defendants as an issue of Article III standing, which is a prerequisite to federal court subject matter jurisdiction.134 To demonstrate Article III standing, a plaintiff must allege an injury in fact that is concrete and particularized, as well as actual or imminent—rather than conjectural or hypothetical—and is likely to be redressed by a favorable decision.135 Article III does not appl

Consumer Class Actions: 10.3.3.2.4 Standing to sue multiple defendants

When there are multiple defendants, a proposed class representative who has no claim against one or some of the defendants generally lacks standing to sue such defendants as a representative of unnamed class members who do have such claims, and they will be dismissed for lack of jurisdiction at the pleading stage.186 A limited exception has been suggested in cases in which “all defendants are juridically related in a manner that suggests a single resolution of the dispute would be expeditious.”187

Consumer Class Actions: 10.3.3.3 Unique Defenses

Some courts have held that the existence of a unique defense peculiar to the named plaintiff or a small portion of the class precludes a finding of typicality.189 The concern about a unique defense affecting typicality overlaps with the issue of the class representative’s adequacy because a class representative may be vulnerable to a motion for summary judgment predicated on the defense and also “might devote time and effort to the defense at the expense of issues that are common and controlling for the class.”

Consumer Class Actions: 10.3.3.4 Typicality and the Relief Sought by Plaintiff

It is not essential that the relief sought by the named plaintiff be precisely coextensive with the relief to which the class members may be entitled.195 Differences in the relief sought on behalf of the named plaintiff and the class members do not defeat a class action if the factual and legal grounds for seeking relief are the same.196 For example, in an action litigated under the Fair Debt Collection Practices Act, the named plaintiff is not atypical simply because their claim is for stat

Consumer Class Actions: 10.3.4.1 Generally

The essence of the adequacy inquiry is whether the named plaintiffs and their counsel will prosecute the action vigorously on behalf of the class.203 A single named plaintiff who meets this test will suffice even if other proffered class representatives do not.204

Consumer Class Actions: 10.3.4.2 Adequacy of Class Counsel

The proposed class attorney will generally be found to be adequate if the attorney is qualified, experienced, and able to conduct the litigation vigorously.205 Class counsel must possess the experience and skills to pursue the type of litigation involved.206 Counsel’s historic win/loss ratio is, however, irrelevant to this determination.207

Consumer Class Actions: 10.3.4.3 Class Representative’s Interests Must Be Both Similar to and Not Antagonistic to Other Class Members’ Interests

“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the class they seek to represent.”223 It is critical that the interests of the named plaintiff not be antagonistic to those of other class members;224 antagonism, however, is an issue only if it relates to the matters in controversy.225 Furthermore, antagonism and intraclass conflict must be determined based on the members of the class

Consumer Class Actions: 10.3.4.4 Plaintiff’s Ability to Pay Litigation Costs

If the costs of preparing the class list and mailing notice will be substantial because the class is large and the other costs of prosecuting the case (discovery and trial) also are substantial, the defendant may try to defeat class certification by arguing that the named plaintiff does not have the financial ability to proceed with the case and therefore is not an adequate class representative. The defendant will use discovery to try to obtain facts to support this argument.

Consumer Class Actions: 10.3.4.5 Plaintiff’s Credibility and Moral Character

The plaintiff’s credibility may be relevant to their ability to serve as a class representative if it is directly related to key issues in the lawsuit.292 Courts have rejected defense arguments that a proposed class representative was inadequate because that person “may have, in defendants’ view, given contradictory testimony or suffered lapses of memory.”293 Minor discrepancies in testimony in the course of the class litigation will not prevent certification even though they may be useful i

Consumer Class Actions: 10.3.4.7 Plaintiff’s Lack of Control Over the Litigation

Defendants may argue that named plaintiffs are inadequate class representatives because they are not supervising the attorney for the class but are allowing the attorney to have unfettered control over the litigation. This argument is related to and sometimes overlaps with a defendant’s contention that the proposed representative is not sufficiently knowledgeable about the claims or the class action process, discussed immediately above.