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Civil Procedure II Outline - Part 15

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Rule 23 B Factors

aa. In addition to satisfying the rule 23a prerequisites and the implicit factors a party seeking class certification must also satisfy one of three subsections of rule 23b

  1. 23(b)(2)
    1. This subsection authorizes the maintenance of a class action where in addition to satisfying rule 23(a) “the party opposing the class has acted or refused to act on grounds generally applicable to the class thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.
      1. Rule 23b2 is intended for class seeking primarily injunctive or declaratory relief not money damages.
        1. Intended for those groups hoping to achieve broad based injunctive relief rather than cases in which a lawyer located a plaintiff and brought a class action in the hope of a fee.
    2. Cohesiveness.
      1. Because actions certified under this subsection do not allow individual members to opt out corts demand that the class be cohesive or that members be bound together through pre existing or continuing legal relationships or by some significa common trait such as race or gender.
  2. 23b3
    1. Certification under this subsection requires that “ the questions of law or fact common to the members of the class predominate over any question affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.
    2. Predominance
      1. When making the determination as to predominance of utmost importance is whether the issue is common to the class and subject to generalized proof or whether it is instead an issue unique to each class member.
        1. To evaluate predominance, the district court must examine the type of evidence needed to establish a plaintiff's case.
          1. If to make a prima facie showing on a given question the members of a proposed class must present evidence that varies from member to member, then it is an individual question for purposes of rule 23B3 if the same evidence will suffice for each member to make a prima facie showing then it becomes a common question.
    3. Superiority
      1. The second test under rule 23b is whether the class action is superior to other reliable methods for the fair and efficient adjudication of the controversy. IN evaluating property the court must consider four non-exclusive factors.
        1. The interest of the members of the class in individually controlling the prosecution or defense in separate actions
        2. The extent and nature of any litigation concentrating the controversy already commenced by or against members of the class
        3. The desirability of undesirability of concentrating the litigation of the claims in the particular form
        4. The difficulties likely to be encountered in the management of a class action.

bb. Notes After

  1. 23b1
    1. The prejudice class
      1. Recognizes that these kinds of prejudice can be avoided or mitigated by using a different more ambitious joinder divide: a class action treating the missing person as members of the class. Hence the shorthand phrase, prejudicial class for both the rule 23b1
  2. 23b2
    1. The injunctive relief or civil rights class action.
      1. Civil rights actions and employment discrimination actions often seek primilary injunctive relief: an injunction ordering the defendent to stop viiolating the plaintiffs civil rights, to stop discriminating in hiring or to sop discrimintin in pormotion and to promote those agaisnt whom it had discriminated.
        1. Key to b2 class is the indivisible nature of the injunctive relief or declaratory remedy warranted the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.
  3. 23b3
    1. The damages class actions
      1. Must putative class actions seeking damages are certified under rule 23b
        1. Authorizes certification of a damages class action only if despite the variable of many questions of fact and law among class members a class action o=is more efficient than individual actions, the common questions predominate and the putative class members are given the chance to skip the class
          1. To opt out from the class leaving them free to pursue their own action but also excluding them from the benefit of any class judgment.
    2. Efficiency Calculus
      1. How does rule 23b3 suggest that a court should make the efficey judgement.
        1. First it has to assure that the questions common to class members predominate over any individualized questions.
          1. In deciding predominance courts have considered a number of factors including whether
            1. The substantive elements of class members claims require the same proof for each class member.
            2. The proposed class is bound together by a mutual interest in resolving common questions more than it is divided by individual interest
            3. The resolution of an issue common to the class would significantly advance the litigation
            4. One or more common issues constitute significant parts of each class members individual case
            5. The common questions are central to all of the members claims
            6. The same theory of liability is asserted by or against all class members and all defendants raise the same basic defenses.
        2. Second Superiority
          1. Requires a finding that the class action is superior to other available methods for fairly and efficiently adjudicating the controversy.
            1. Here the rule does not leave the court at sea; it lists pertinent facts that balance the prospect and existence of individual actions against the desirability and manageability of class actions.
              1. Vs single actions, joinder
    3. Why class type matters
      1. It matters which rule 23b class is designated partly because 23b3 imposes additional procedural requirements for designation beyond rule 23 a buth there re two additional factors rha amej even a greater difference
        1. First rule 23c2b requires that rule 23b3 class members each be afforded individual notice where practicable.
          1. For a large class this can be expensive and as we shall see below it is usually an expense carried by the party who seeks class certification
        2. Second the notice must afford each class member an opportunity to request exclusion from the class- to opt out.
    4. Class Action Jurisdiction and Conduct.
      1. First as different as they are, they remain civil actions that are subject to the baseline requirements of subject matter jurisdiction, personal jurisdiction, and venue in federal courts.
        1. Even if an action qualifies for certification it cannot proceed in federal court unless it satisfies these requirements.
      2. Second, to protect the rights and interest of absent class members the trial court plays a more active role in conducting the class action that it typically plays in ordinary non-class litigation.
        1. Rule 23 elaborates on the role by permitting the trial court to issue orders that relate attorney fees. And by requiring the court to select and appoint class counsel and to approve a settlement voluntary dismissal or compromise of claims issues or defense in a certified class action.
      3. SMJ of Class action
        1. Court held that only the presentatie particles citizenship need to be diverse from that of the defendant.
          1. Ben hur allows easy satisfaction of the citizenship requirement for diversity based class actions in federal court.
        2. 1367
          1. Gives a federal court supplemental jurisdiction over claims that arise from the same transaction esa claim over which the court has original subject matter jurisdiction. Thus as long as a class representative claims meets the amount in controversy requirement his claim can anchor supplemental jurisdiction over the other class members below amount claims.
        3. Class Action Fairness Act of 2005
          1. First Cafa gives federal courts original subject matter jurisdiction over class actions in which the aggregated amount in controversy exceeds 5 million.
            1. In other words the act requires only minimal diversity for qualifying class actions and apparently overrules the common law rule against aggregating individual plaintiffs claims. 1332D
          2. Second permits removal from state to federal court of actions that satisfy this amended diversity requirement even by citizens of the forum state and even more than a year after the action was filed in state court. It thus eliminated class actions and mass torts.
            1. At the same time however CAFA gives a federal court the discretion to decline jurisdiction if it finds that one third to two thirds of the plaintiff class members are from the same state as the primary dependent and the action has various attributes identifying it with a particular stage.
        4. Notice
          1. 23b3
            1. Damage actions are entitled to the “best notice practicable under the circumstance including individual notice to all members who can be identified through reasonable effort”
              1. 23c2b
          2. This rule mandates notice only for rule 23b3 damages class and not 23b1 and 23b2 classes, because damages actions are viable as individual actions.
        5. Settlement of Class Actions
          1. Rule 23e deals with the problem by requiring that notice of this proposed settlement be sent to all class members who would be bound by the settlement.
          2. Unlike 23c2 This notice requirement applies to every type of class.
            1. Sometimes when the class action is settled before the notice is combined into a single notice.
          3. Second it requires that the court hold a “fairness Hearing” on the proposed settlement at which objections from class members can be heard.
          4. Third it requires the court to approve the settlement only if it finds it to be “fair, reasonable and adequate”
            1. Factors to determine if the settlement is fair, reasonable and accurate.
              1. The strength of the plaintiff's case;
              2. He risk, expense complexity and likely duration of further litigation
              3. The risk of maintaining class action status through the trial; 4 the amount offered in settlement
              4. The extent of discovery completed and the stage of proceedings
              5. The experience and views of counsel
              6. The presence of a governmental participant;
              7. The reaction of the class members to the proposed settlement.
          5. Fourth the rule allows a court to require a second opt out opportunity in rule 23b3 damages class actions. Finally the court also controls the award of attorneys fees under rule 23(h). These provisions provide the court with a kit bag of tools to police class actions settlements and thereby protect the class.
  4. Class Actions Summary of Basic Principles
    1. A class action is a civil action in which a party acts as a representative for similarly situated non parties who are bound by any resulting judgment. The chief justification for class actions is efficiency in that they facilitate the litigation of comom issues and interest in a single binding lawsuit instead of multiple individuals.
    2. The binding effect of a class action judgment on absent class members is consistent with due process because the class representative litigate as a surrogate for the class members. This surrogacy based exception to the usual due process requirement of individual notice and an opportunity to be heard is premised on the substantial identity of the interest between the class representative and the class members, the adequacy of presentation of those interest by the class representative and the application of transparent judicial procedures for the designation and conduct of the class litigation.
    3. To certify an action as a class action, a court must find that the putative class meets the general rule 23a requirements of class definition, class membership, numerosity, commonality, typicality, and adequacy of representation.
      1. The class must also qualify as one of more of the rule 23b classes because rule 23b3 damages classes are most likely to present individual issues and claims that could be viable as individual actions
        1. Rule 23b3 requires that the class representative in addition to meeting the general requirements of rule 23a show the common issues predominate and that a class action would be superior to alternative methods of adjudication. Members of a rule 23b3 class must be given individual notice, where practicable, of the class action and of their right to exclude themselves from opt out of class.
    4. Federal courts that conduct class actions, like all civil actions, must have SMJ in diversity based class action; only the class representatives citizenship must be diverse from that of opposing parties and only a single class representative needs to satisfy the amount in controversy.
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