Agenda for 13th Class

1. Agenda for 13th Class • Admin • Handouts • Name plates • Appointments next Monday to go over exam • Revise answer in light of today’s class first. • A Civil Action screening • W 10/30 7:30PM WCC 2004 • Court visit Tuesday, November 19 • Roughly 1:30-4PM, but keep all afternoon clear • 1995 Exam II • Settlement • Arbitration • Fees • Intro to joinder & class actions

2. Assignment for T 10/29 • Joinder • FRCP 13, 14, 18, 20, 21 • Yeazell 793-97, 812-19 • Pp. 816 Q5 • Pp. 818ff. Qs 1-2 • Optional: GlannonChapters 13-14 (Joinder) • Class Actions • FRCP 23 • Yeazell859-61, 877-93, • Questions on next slide

3. Class Action Questions • Yeazell pp. 881ff. Qs 1, 2 • 1)BadCorpmanipulated the price of its stock by failing to disclose information that would cause share prices to fall. Would a class action alleging violation of federal securities law against BadCorp on behalf of all shareholders who purchased stock during the period when the information was being withheld be appropriate? • 2)  BadPharmsupplied blood to hemophiliacs, but failed to screen adequately for AIDS. As a result, many hemophiliacs in dozens of states got AIDS and some died. Would a product liability class action against BadPharm on behalf of all hemophiliacs who contracted AIDS as a result of contaminated blood be appropriate? 

4. Mid-Semester Feedback • Thank you • Thoughtful and helpful • 3 changes • Tuesday’s assignment a week in advance • Preview of next class at end of class • Will make old exams and answers available soon • Still thinking about other comments and suggestions

5. 1995 Exam, Part II • Review • Even though JMOL for defendant • Amendment issues reviewed for abuse of discretion • Each issue reviewed according to standard of review appropriate to it • JMOL just gives finality, does not determine standard of review for other decisions • Statute must be brought to attention of court, otherwise waived • Some courts apply “plain error” doctrine • That doctrine is supposed to apply only in criminal cases • Very hard exam • A+ exam got 50%; median exam got 25% • JMOL & new trial • In thinking about the JMOL issue, consider both FRCP 50 as it exists today and as it existed in 1995, when the exam was written.

6. Settlement • Settlement Problems • Settlement and A Civil Action • In what ways does A Civil Action confirm the validity of Polinsky’s economic model of settlement? • In what ways does A Civil Action contradict Polinsky’s economic model of settlement or suggest that the real world is more complex than that model?

7. Arbitration I • Adjudication by private judge under rules agreed to by parties • Must be agreed to by parties • Pre-dispute. In contract, before dispute arises • After dispute arises • Arbitration is legally binding • Party that agreed to arbitration and then changes its mind can be compelled to arbitrate • Court will dismiss case • Arbitrator can enter equivalent of default judgment • Arbitration awards are enforceable in court • Arbitration awards are not generally appealable • Arbitration may be through established organizations (non-profit or for profit) • American Arbitration Association, JAMS • Organizations have panels of arbitrators and set rules

8. Arbitration II • Parties to arbitration generally have control over who arbitrators are • Either agree on arbitrators in advance • Or agree to procedure for selecting arbitrator • E.g. Start with list and each side strikes those like least, etc. • Procedure may be set out in organization rules (AAA or JAMS) or may be negotiated by parties • Often arbitrators are retired judges, but can be anyone • E.g. Writers Guild has writers as arbitrators • Parties to arbitration generally have control over procedures • AAA and JAMS have rules that can choose • Or can set out own rules • E.g. Writers Guild. Everything in writing, no oral hearing or testimony

9. Arbitration III • Arbitration is controversial • Especially in consumer contracts • Where business may put arbitration clause in form contract stipulating defendant friendly arbitrators and procedures (e.g. no class actions) • Federal law promotes arbitration • Federal American Arbitration Act is interpreted to require states to enforce arbitration agreements, except in rare circumstances • Agreement was unconscionable or otherwise defective under ordinary state law contract principles (e.g. fraud, duress), or • Procedure violative of due process (e.g. biased judges) • Very hard to prove, even though probably often true, because business generally chooses arbitration procedures, including rules for selection of arbitrators • Businesses are “repeat players” • So arbitration providers have incentive to please business, otherwise business will choose other arbitration provider in future.

10. Costs & Fees • Costs • Usually pretty minor– filing fees, court reporter, non-expert witness fees • According to 28 USC 1920 always paid by losing party • Fees • Lawyers fees • Usually large • American rule: each party pays own attorneys’ fees • British rule. Loser pays • If plaintiff wins, then defendant pays plaintiff’s lawyer’s fees • If defendant wins, then plaintiff pays defendant’s lawyers fees • Fee shifting always subject to judicial inquiry into reasonableness • Fee shifting problems • A Civil Action • Given the settlement, how did they calculate how much Schlichtmann and the other lawyers received?

11. Intro to Joinder & Class Actions • Joinder • Assumption – one plaintiff, one defendant, one claim, • unless rules specifically allow more • In general, rules allow joinder if claims and/or parties are closely related • Class Actions • Allow lawyer to represent groups without individual consent • Very powerful, Very problematic • Key problem is that lawyer may not act in best interest of class • Not controlled by client • May be more interested in ideology or fees than relief to class • Must be certified by court • Four 23(a) requirements. • Numerosity, Commonality, Typicality, Adequacy • Must satisfy requirements of one section of 23(b) • 23(b)(2). Injunctions and declaratory relief • Injunction or declaratory relief “appropriate respecting whole class” • 23(b)(3). Money damages / mass torts • Must show that common issues predominate • Must show that class action superior to individual suits