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Consumer Class Actions: 17.1 Introduction

A class case should be prepared for trial like any other complex case—counsel should carefully consider at the outset of the case what legal standards apply, how liability and damages will be proven, and how a court will manage a trial of the size and type counsel has filed. Because these issues have important implications for meeting the class certification requirements of commonality, predominance, superiority and manageability, consideration given early in the litigation to how the case will be tried will help maximize the prospects for certification.

Consumer Class Actions: 17.2.3 Litigation Plan

One way in which class action pre-trial and trial proceedings are managed is by adopting a litigation or case management plan. Some courts require presentation of a formal proposed plan as part of the certification process, and many more encourage or require discussion of trial issues in seeking certification.3 Regardless of whether or not it is required to be presented to the court as a formal plan, class counsel should take the initiative in developing a litigation or case management plan, even if only for internal use.

Consumer Class Actions: 17.2.4 Trial by Jury

Shortly after the adoption of Federal Rule of Civil Procedure 23 in the 1960s, the Supreme Court confirmed that “it now seems settled in the lower federal courts that class action plaintiffs may obtain a jury trial on any legal issues they present.”6 When common legal and equitable issues arise in the same case, the legal questions must be presented for jury determination before the trial judge decides the equitable ones.7

Consumer Class Actions: 17.2.5 Liability and Damages in One Trial

A long-held plaintiffs’ trial stratagem is that a jury or judge should decide damages in conjunction with liability. This is the most straightforward approach and should be followed if at all possible. Whether and under what circumstances one trial may resolve all issues is case specific and case dependent. Normally, the management problems that arise in proving common liability issues are not insurmountable.

Consumer Class Actions: 17.2.7 Innovative Trial Structures

In certain cases, courts have adopted innovative trial structures to try the cases because of challenges in presenting evidence of liability or damages. These approaches are varied and are specific to the challenges of a particular case. For example, in Hilao v. Marcos,16 the Ninth Circuit affirmed a trifurcated trial approach that decided liability, punitive damages, and compensatory damages in three successive trial phases.

Consumer Class Actions: 17.3.3 Proof Through Class Members

Calling class members as witnesses for liability purposes involves balancing strategic considerations initially involving discovery and ultimately involving the presentation of the case at trial.

The decision to call absent class members as witnesses should be made strategically, and class counsel should be careful to balance the advantages and disadvantages. There can be instances in which the case for liability is strengthened considerably by calling absent class members. However, the identification of such witnesses may have negative implications as well:

Consumer Class Actions: 17.3.5 Proof Through Experts

In many cases, expert testimony regarding liability and common course of conduct can be crucial in demonstrating that the applicable standard of care was violated or that the defendant’s actions were unjustified, misleading, or unfair. Indeed, sometimes expert testimony is the only means by which liability may be proven. In appropriate cases, consideration should be given to calling the liability expert as the first witness in the case.

Consumer Class Actions: 17.4.2 Standards of Proof

At the outset, counsel should pay particular attention to the standards for proof of damages for their particular case and how the fact of damage and the amount of damages may be proven. While proof of damages is generally subject to a preponderance of the evidence standard, for some types of torts a number of jurisdictions require that the “fact” that at least some damage has occurred be shown with reasonable certainty.

Consumer Class Actions: 17.4.3 Classwide Proof by Use of a Formula

Counsel should determine early in the case whether classwide damages can be proven through proof of damages by the class representative. This may be done in conjunction with a Rule 16 case management conference or certification hearing or through a motion to determine the method by which damages may be proven.

Consumer Class Actions: 17.4.5 Classwide Proof by Sampling and Extrapolation

Sampling has been used in class cases, including frequent use in Title VII cases.39 As one court noted:

[C]ourts have approved various methods of discovering and determining damages in class actions on the basis of classwide, rather than individualized proof of damages, and the use of statistics and representative samples are one such legitimate method.40

Consumer Class Actions: 17.4.6.1 Generally

Individual issues sometimes arise in class actions seeking monetary relief under any class category.44 When they do, the computation of individual benefits for particular class members usually is handled in one of three ways after the common issues have been resolved in a classwide trial before the court or the jury. One is to have the court, or more likely a magistrate or a special master, hold individual hearings.

Home Foreclosures: 8.5.1.5 Removal of Actions

When a case has been filed in state court, the defendant may remove the case to federal court if federal jurisdiction standards are satisfied and removal procedures are followed. The party seeking removal bears the burden of establishing federal jurisdiction, including Article III standing, and generally there is a presumption against removal jurisdiction.357 Standing is an essential element of the federal court’s subject matter jurisdiction. In light of the Supreme Court’s holding in TransUnion, L.L.C. v.

Consumer Class Actions: 5.2 General Pleading Considerations

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.

Consumer Class Actions: 9.1 Introduction

You should expect that defense counsel will depose the class representatives in hopes of eliciting responses that will show that they are atypical, inadequate, or lack Article III standing, and are therefore unsuitable to represent the class.1 Some defense counsel use the deposition as an opportunity to harass or intimidate plaintiffs, who already are likely to be wary of the process. A class may be certified without allowing defense counsel to depose any named plaintiff, but that is very much the exception to the rule.

Consumer Class Actions: 5.4 Special Pleading Considerations—Spokeo, Ramirez, and Standing

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.

Consumer Class Actions: 5.7.2 Claim-Splitting

“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

Consumer Class Actions: 17.4.1 Overview

Classwide proof of damages may take many forms. Although counsel must always look to the simplest and most straightforward approach, each case will have its own challenges. These challenges arise both in the methods by which damages are computed as well as in the factual bases of proving them once a method is accepted by the court.

Fair Debt Collection: 11.11.2.2.3 Commonality

Federal Rule of Civil Procedure 23(a)(2) requires that issues of law or fact be common to the class.895 Defense challenges to commonality are often, in fact, arguments about whether the case has merit, and therefore are inappropriate.896 However, the Supreme Court, in both Wal-Mart Stores, Inc. v. Dukes,897 and Amgen Inc. v.

Consumer Class Actions: 10.6.3.1 Generally

In addition to meeting the prerequisite of superiority discussed in the preceding section, Rule 23(b)(3) certification requires that the common questions that satisfy the commonality requirement of Rule 23(a)(2) “predominate over any questions affecting only individual members.”576 The Supreme Court has said that “predominance is a test readily met in certain cases alleging consumer or securities fraud.”577 The predominance inquiry “tests whether proposed classes are sufficiently cohesive to