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Consumer Class Actions: 7.3.3.5 Attorney Fees and Costs

A tender that is either intentionally or carelessly ambiguous as to whether costs and attorney fees are being provided may be rejected without risk of adverse consequences, meaning it will not moot a case. Some offers of judgment set out a specific amount being tendered for costs and fees. These can also be rejected if the amount does not cover at least the accrued costs and fees for the individual plaintiff.

Consumer Class Actions: 7.3.3.1 Generally

Campbell-Ewald left unresolved the question of what constitutes a complete tender, such that an individual case may arguably no longer present an Article III case or controversy. At issue is whether the tender provides sufficient relief and whether the form of the tender matters.

Consumer Class Actions: 7.3.3.2 Monetary Relief

Money is the most common form of relief sought by the named plaintiff(s). But a tender of money damages can be insufficient even if, at first glance, it might seem to satisfy a claim. For instance, since the amount of punitive damages that is appropriate cannot be determined from some formula, the amount that must be tendered to satisfy a general demand for punitive damages is necessarily unknowable. Therefore, an amount tendered, no matter how large, should not suffice.

Consumer Class Actions: 7.3.3.3 Declaratory/Injunctive Relief

Aside from money damages, any sought-after injunctive and declaratory relief should also be provided if a case is to be considered mooted.53 If all of the requested equitable relief is not tendered and the right to such relief is not settled law—that is, arguably by the Supreme Court itself—then a case or controversy would still remain.

Consumer Class Actions: 7.3.5 Motion to Strike Offer of Judgment

When a Rule 68 offer of judgment is made soon after a case is filed—and before a motion for certification can reasonably be filed—some plaintiffs’ counsel will move to strike the offer. The holding in Weiss v. Regal Collections first laid the groundwork for this motion and Campbell-Ewald firmly established its merit. In response to such a motion, a defendant may argue that it is not trying to moot a plaintiff’s claim by making the Rule 68 offer but merely attempting to shift the risk of costs to the plaintiff in the event that the plaintiff recovers less than the offer.

Consumer Class Actions: 7.4.1 Overview

The most frequent response by a defendant to a class action complaint is to file a motion to dismiss. The discussion below will be confined to procedural issues in the class action context.

Consumer Class Actions: 7.5 Defendant’s Motion to Strike or Redefine the Class

On occasion, defendants attempt to strike class allegations, or portions thereof, relying upon Federal Rule of Civil Procedure 12(f), which authorizes a motion to strike from a pleading any immaterial matter. Sometimes it is claimed that the requirements of Rule 23 cannot be met on the face of the pleadings. In other cases, the defendants assert that the claims of some members of the class are barred by the Rooker-Feldman doctrine or a statute of limitations.

Consumer Class Actions: 7.7 Counterclaims Against Class Members

A common defense tactic is to file counterclaims against class members and then allege that the existence of the counterclaims gives rise to lack of commonality and adequacy of representation problems. Chapter 10, infra, discusses whether such counterclaims should in fact prevent class certification. This section examines why the court should not allow such counterclaims in the first place.

Consumer Class Actions: 7.8 Efforts to Enjoin Similar Class Actions

Situations may arise in which there are similar, overlapping, or even other “copycat” later-filed class actions. Defendants may deploy various tactics in response to such cases, including seeking to transfer, dismiss, or stay them under the “first-filed” doctrine or by requesting invocation of a multidistrict litigation (MDL) process pursuant to 29 U.S.C. § 1407.

Consumer Class Actions: 9.3.1 General Information on the Process

At the preparatory sessions the client should be informed about how the actual deposition process works. First, ask if the client has testified before, in court or in a deposition. Regardless of the client’s prior experience, however, make sure to discuss the following points:

Consumer Class Actions: 9.3.2 Advice on Answering Questions

It is important to prepare the client on how to answer questions at the deposition. Acknowledge that the client may be nervous. Offer the rules listed below and explain to the client that following these rules will significantly reduce the chances that they will make a serious mistake:

Consumer Class Actions: 9.4.1 Background Questions

The deposition will typically begin with a series of questions about the plaintiff’s background, such as family, education, work history, and finances, or lack thereof. The personal nature of these questions can be off-putting to—or bring up unfortunate memories for—the plaintiff. It is therefore important to remind the plaintiff that these questions are standard in a deposition.9 Moreover, you can assure your client that you have asked, or will be asking, the same sort of questions of the defendant.

Consumer Class Actions: 9.4.2 Named Plaintiff’s Familiarity with the Complaint

Defendants often ask plaintiffs at their depositions whether they have reviewed the pleadings. Provide the plaintiff with a copy of the current complaint and any other critical documents, including the class motion, well in advance of the first preparatory session, preferably before or at the time they are filed. Instruct the plaintiff to read them over carefully. Also, prepare the plaintiff for a frequent defense tactic of showing the plaintiff a prior version of a complaint or other document, in hopes of getting conflicting testimony.

Consumer Class Actions: 9.4.3 History of Legal Representation

Although most questions regarding a counsel’s representation of the plaintiff are objectionable as an intrusion on the attorney-client or work product privilege, some are permissible, so it is advisable to prepare the plaintiff for such questions. Review the date and the reason for which the plaintiff first sought the attorney’s representation and go over the following information:

Consumer Class Actions: 9.4.4 The Named Plaintiff’s Ability to Represent the Class

In deposing the named plaintiff, the defendant’s attorneys hope to obtain testimony from which they can argue that the plaintiff is not a typical or an adequate class representative. As discussed above, spend sufficient time with the plaintiff to make certain that they have an adequate understanding of the class action device and can articulate that understanding. Review the reasons the plaintiff is bringing this case as a class action and the duties of a class representative, including those regarding settlement of the case.

Consumer Class Actions: 9.4.5 Mock Deposition of the Plaintiff

After completing your preparation of the named plaintiff, play the role of opposing counsel and ask the client questions. Start with the “breakfast question,” “What did you have for breakfast today?” When they answer, use it to illustrate what not to do. The answer should be “I had X,” not “I had X, but normally I have X, Y, and Z,” because then they open the door to a host of additional questions. “Why didn’t you have X, Y and Z?,” etc. Then move on to ask about specific facts, their role/duties as the class representative, and any potentially embarrassing details.

Consumer Class Actions: 9.5.1 Overview

Federal Rule of Civil Procedure 30(c)(2) provides that objections of all kinds must be noted on the record at the deposition but that, in general, the testimony must nevertheless be given, subject to the objection. Rule 30(c)(2) also mandates that the objection be “stated concisely in a nonargumentative and nonsuggestive manner.”

If the defendant’s attorney abuses or harasses the plaintiff at the deposition, be prepared to direct the plaintiff not to answer certain questions or to terminate the deposition.