Civil Procedure II Outline - Part 14

w. 14(a)(1)

1. An Impleader addresses the situation in which a plaintiff's claim against the defendant triggers a right of the defender to be reimbursed by someone else if it pays the plaintiff's claim or part of it.
2. The defendant must allege that the new party is or may be liable to the defendant for all or party of amy judgment the plaintiff recovers from the defendant.

x. A class action judgment is binding.

1. Has a preclusive effect not just on the class representatives, but also on the rest of the class that they represented. Thus it prevents class members from suing for the same transaction again.

y. Why not just a rule 20 joinder?

1. A class action is simply another kind of joinder for cases in which persons with similar interests are so numerous that it is more efficient for a few class representatives to litigate on behalf of the rest of the class.
   1. The rest of the class members are not made active parties and are usually not individually involved in discovery.
      1. This makes the cases easier to manage, yet assures that the interest they share with the class members will be heard and fairly litigated.
2. Due Process concerns with Class actions.
   1. Party statues is the key to due process because a party receives notice of the lawsuit and the opportunity to participate.
   2. Can a Class action ever bind absent class members.
      1. The united States Supreme Court expressly recognized that class or representative lawsuits were an exception to the general due process principle that one cannot be bound by a judgment in a lawsuit to which one is not a party.
         1. For the sake of efficiency, there are so many people that their joining by the usual rules is impractical either because some are outside the jurisdiction, some are unknown, or there are just too many.
         2. The interest of those not joined ( the absent class members not before the court must be of the same class as the interests of those who are” joined.
         3. Second the absentees interest must in fact be adequately represented by parties who are present.
         4. Thirdly, courts must adopt and employ procedures to ensure that the common interest and adequate representation requirements are satisfied and that the litigation is so conducted as to insure the full and fair consideration of the common issue.
   3. Rule 23
      1. A(1) requires the court to certify the lawsuit as a class action provided that the party seeking class action certification shows that joinder of all members is impracticable.
      2. Rule 23(a)(2)-(3)
         1. Requires that the representatives parties share the interest of the absent class members
            1. They share common questions and typical claims or defenses.
      3. Rule 23(a)(4)
         1. Requires that the representatives fairly and adequately represent the class.
      4. Rule 23 B describes additional requirements for some kinds of classes which go primarily to the efficiency of the class actions.
   4. In re Teflon
      1. Rule 23A Prerequisites
         1. The burden is on the party seeking certification to satisfy each of the rule 23(a) factors.
         2. The court must accept as true the substantive facts as alleged in the complaint but must also look beyond the pleadings to evidence submitted by the parties in order to ensure specific prerequisites have been satisfied.
         3. Assuming a party seeking certification is able to satisfy all of the factors set under 23(a) the party must also satisfy at least one of the conditions enumerated under rule 23b. In the present case plaintiffs assert that the proposed class actions in states have a liquidated statutory penalty or where only injunct relief is sought are properly certified under rule 23b 2. Plaintiffs seek certification under rule 23b3 for actions in the remaining states.
      2. Rule 23 Implicit Requirements
         1. A well crafted class definition must ensure that the court can determine objectively who is in the class and therefore bound by the ultimate ruling.
            1. The court should not be required to restart to speculation or engage in length, individualized inquiries in order to identify class members.
            2. Identification of the class serves at least two obvious purposes in the context of certification. First it alerts the court and parties to the burdens that such a process might entail.
            3. Second, identifying the class ensures that those who are actually harmed by defendants’ wrongful conduct will be the recipients of the relief eventually provided.
      3. Requirements under Rule 23 (a)
         1. Assuming the class definition had been drafted to ensure that membership is objectively ascertainable and at least one viable class representatives exists for each of the subclasses put forth by plaintiffs, plaintiffs must nevertheless satisfy all four prerequisites listed in 23 A
            1. Numerosity
               1. Class be so numerous that joinder of all members is impracticable
                  1. A reviewing court must consider these factors
                  2. The number of person in the proposed class,
                  3. The type of action at issue,
                  4. The monetary value of the individual claims and the inconvenience of trying each case individually.
            2. Commonality
               1. Each class member's claims contain “questions of law and fact common to the class.
                  1. It is not necessary to demonstrate that every question of law or fact is common to each member of the class, Rather the issues liking the class members must be “substantially related” to the resolution of the case.
            3. Typicality
               1. To satisfy this requirement the proponent of certification must show that the claims or defense of the representative parties are typical of the claims or defense of the class. In general typicality is established if the claims of all members arise from a single event or saher the same legal theory. If the legal theories of the representative plaintiffs are the same or similar to those of the class, slight differences in fact will not defeat certification.
               2. The presence of a common legal thoru does not establish typicality when proof of a violation requires individualized inquiry.
               3. In situations where claims turn on individual facts, no economy is achieved and the typicality requirement cannot be met.
            4. Adequacy of representation.
               1. The fourth express requirement under rule 23a is that the representative parties will fairly and adequately protect the interest of the class.
                  1. Two factors are relevant to this inquiry.
                  2. Whether the named representatives and their counsel are willing and competent to pursue the litigation
                  3. And whether the interest of the representative plaintiffs are antagonistic to the interest of others in the class.
                  4. Look out for clima splitting which prevents the representative plaintiffs from adequate presenting the full interest of absent class members.

z. Notes after the Case

1. Initiating The class action process
   1. Must file a motion for a certification order form the court, called a putative class action until certified.
      1. Rule 23(c)(1)
         1. Rule 23(c)(5) authorizes the creation of subclasses.
   2. Must meet the general prerequisites for class actions set out in rule 23A
   3. and the specific requirements for one or more of the types of classes set out in rule 23(B)
2. Details in numerosity
   1. This rule picks no bright lines as to how many class members will ratify the numerosity requirement but some cases suggest that the line falls somewhere between twenty and forty members.
      1. However geogracy can matter: it may be more impactful for twenty members to join together as co plaintiffs if they are located in fifteen different states than for two hundred class members from the same city to join together.
3. Commonality
   1. Lawyers typically seek class certification only if there are common questions of fact however rule 23 a does not require all or even most questions to be in common.
      1. In an opinion by justice claims the court said that to meet the commonality requirement of rule 23a2 it is not enough to allege that the class members all suffered a violation of the same law. Their claims must depend upon a common contention of such a nature that it is capable of classwide resolution which means the determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.
4. Typicality
   1. Addresses the class representatives claims
      1. Vastly dissimilar claims can have a common question of law in fact, by requiring class representative to asset claims that are typical of the class rule 23 assures that the class representative will feel the pain of the class members.
         1. Similar not identical.
      2. Turns significant on the narre of the claim or defense asserted by the class. Claims arising under differing state consumer protection and consumer fraud laws, applying different states law to different class representatives undercuts the typicality of the representatives claims.
5. Adequate Representation
   1. First the class must be represented by adequate counsel
      1. Rule 23(c)(1)(b) requires the court in its certification order to appoint class counsel under rule 23(g) which directs the court to consider the lawyers preparation experience knowledge of the law and resources.
      2. Second rule 23(a) 4 refers to the adequacy of representation by the class representatives.