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Civil Procedure II Outline - Part 5

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(e) Settlement, Voluntary Dismissal, or Compromise. The claims, issues, or defenses of a certified class—or a class proposed to be certified for purposes of settlement—may be settled, voluntarily dismissed, or compromised only with the court's approval. The following procedures apply to a proposed settlement, voluntary dismissal, or compromise:

  1. Notice to the Class.
    1. Information That Parties Must Provide to the Court. The parties must provide the court with information sufficient to enable it to determine whether to give notice of the proposal to the class.
    2. Grounds for a Decision to Give Notice. The court must direct notice in a reasonable manner to all class members who would be bound by the proposal if giving notice is justified by the parties' showing that the court will likely be able to:
      1. approve the proposal under Rule 23(e)(2); and
      2. certify the class for purposes of judgment on the proposal.
  2. Approval of the Proposal. If the proposal would bind class members, the court may approve it only after a hearing and only on finding that it is fair, reasonable, and adequate after considering whether:
    1. the class representatives and class counsel have adequately represented the class;
    2. the proposal was negotiated at arm's length;
    3. the relief provided for the class is adequate, taking into account:
      1. the costs, risks, and delay of trial and appeal;
      2. the effectiveness of any proposed method of distributing relief to the class, including the method of processing class-member claims;
      3. the terms of any proposed award of attorney's fees, including timing of payment; and
      4. any agreement required to be identified under Rule 23(e)(3); and
    4. the proposal treats class members equitably relative to each other.
  3. Identifying Agreements. The parties seeking approval must file a statement identifying any agreement made in connection with the proposal.
  4. New Opportunity to Be Excluded. If the class action was previously certified under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.
  5. Class-Member Objections.
    1. In General. Any class member may object to the proposal if it requires court approval under this subdivision (e). The objection must state whether it applies only to the objector, to a specific subset of the class, or to the entire class, and also state with specificity the grounds for the objection.
    2. Court Approval Required for Payment in Connection with an Objection. Unless approved by the court after a hearing, no payment or other consideration may be provided in connection with:
      1. forgoing or withdrawing an objection, or
      2. forgoing, dismissing, or abandoning an appeal from a judgment approving the proposal.
    3. Procedure for Approval After an Appeal. If approval under Rule 23(e)(5)(B) has not been obtained before an appeal is docketed in the court of appeals, the procedure of Rule 62.1 applies while the appeal remains pending.
      • Analysis of 23 E-
        • 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.
        • Unlike 23c2 This notice requirement applies to every type of class.
          • Sometimes when the class action is settled before the notice is combined into a single notice.
        • Second it requires that the court hold a “fairness Hearing” on the proposed settlement at which objections from class members can be heard.
        • Third it requires the court to approve the settlement only if it finds it to be “fair, reasonable and adequate”
          • Factors to determine if the settlement is fair, reasonable and accurate.
            • The strength of the plaintiff's case;
            • The risk, expense complexity and likely duration of further litigation
            • The risk of maintaining class action status through the trial; 4 the amount offered in settlement
            • The extent of discovery completed and the stage of proceedings
            • The experience and views of counsel
            • The presence of a governmental participant;
            • The reaction of the class members to the proposed settlement.
        • 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.

(f) Appeals. A court of appeals may permit an appeal from an order granting or denying class-action certification under this rule, but not from an order under Rule 23(e)(1). A party must file a petition for permission to appeal with the circuit clerk within 14 days after the order is entered or within 45 days after the order is entered if any party is the United States, a United States agency, or a United States officer or employee sued for an act or omission occurring in connection with duties performed on the United States' behalf. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

(g) Class Counsel.

  1. Appointing Class Counsel. Unless a statute provides otherwise, a court that certifies a class must appoint class counsel. In appointing class counsel, the court:
    1. must consider:
      1. the work counsel has done in identifying or investigating potential claims in the action;
      2. counsel's experience in handling class actions, other complex litigation, and the types of claims asserted in the action;
      3. counsel's knowledge of the applicable law; and
      4. the resources that counsel will commit to representing the class;
    2. may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;
    3. may order potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney's fees and nontaxable costs;
    4. may include in the appointing order provisions about the award of attorney's fees or nontaxable costs under Rule 23(h); and
    5. may make further orders in connection with the appointment.
  2. Standard for Appointing Class Counsel. When one applicant seeks appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1) and (4). If more than one adequate applicant seeks appointment, the court must appoint the applicant best able to represent the interests of the class.
  3. Interim Counsel. The court may designate interim counsel to act on behalf of a putative class before determining whether to certify the action as a class action.
  4. Duty of Class Counsel. Class counsel must fairly and adequately represent the interests of the class.

(h) Attorney's Fees and Nontaxable Costs. In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties’ agreement. The following procedures apply:

  1. A claim for an award must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision (h), at a time the court sets. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.
  2. A class member, or a party from whom payment is sought, may object to the motion.
  3. The court may hold a hearing and must find the facts and state its legal conclusions under Rule 52(a).
  4. The court may refer issues related to the amount of the award to a special master or a magistrate judge, as provided in Rule 54(d)(2)(D).

26 Duty to Disclose; General Provision Governing Discovery

(a) Required Disclosures.

  1. Initial Disclosure.
    1. In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:
      1. the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
      2. a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
      3. a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and
      4. for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.
        • Analysis of 26 a
          • Both parties will be required without awaiting any formal discovery requests to exchange information that they may use to support their claims or defenses including names addresses and telephone number of fact witnesses copes or descriptions of documents and materials underlying fact witnesses copies or descriptions of documents and materials underlying computations of damages.
    2. Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:
      1. an action for review on an administrative record;
      2. a forfeiture action in rem arising from a federal statute;
      3. a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;
      4. an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;
      5. an action to enforce or quash an administrative summons or subpoena;
      6. an action by the United States to recover benefit payments;
      7. an action by the United States to collect on a student loan guaranteed by the United States;
      8. a proceeding ancillary to a proceeding in another court; and
      9. an action to enforce an arbitration award.
    3. Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.
      • Analysis of 26a1c
        • states that a party “must make initial disclosure” within the time it provides unless one of the delays buttons is pressed below
          • Obtaining a stipulation from the other parties
          • Can object
            • The objections must be stated in the proposed discovery plan. When it is, the court will then rule on the objections and “must set the time for disclosure.
          • Move For a court order
    4. Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.
    5. Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.
  2. Disclosure of Expert Testimony.
    1. In General. In addition to the disclosures required by Rule 26(a)(1), a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.
    2. Witnesses Who Must Provide a Written Report. Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party's employee regularly involve giving expert testimony. The report must contain:
      1. a complete statement of all opinions the witness will express and the basis and reasons for them;
      2. the facts or data considered by the witness in forming them;
      3. any exhibits that will be used to summarize or support them;
      4. the witness's qualifications, including a list of all publications authored in the previous 10 years;
      5. a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
      6. a statement of the compensation to be paid for the study and testimony in the case.
    3. Witnesses Who Do Not Provide a Written Report. Unless otherwise stipulated or ordered by the court, if the witness is not required to provide a written report, this disclosure must state:
      1. the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and
      2. a summary of the facts and opinions to which the witness is expected to testify.
    4. Time to Disclose Expert Testimony. A party must make these disclosures at the times and in the sequence that the court orders. Absent a stipulation or a court order, the disclosures must be made:
      1. at least 90 days before the date set for trial or for the case to be ready for trial; or
      2. if the evidence is intended solely to contradict or rebut evidence on the same subject matter identified by another party under Rule 26(a)(2)(B) or (C), within 30 days after the other party's disclosure.
    5. Supplementing the Disclosure. The parties must supplement these disclosures when required under Rule 26(e).
      • 26a2
        • Also requires timely disclosure of expert trial witness and their reports at least 90 days before trial
      • 26a3
        • Adds the requirement that at least thirty days before trial parties make mutual pretrial disclosures by exchanging lots of witnesses they expect to call and exhibits they intend to introduce at trial. These disclosure requirements were already widely imposed ad hoc by pretrial orders in many cases and they have been uncontroversial.
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