Agenda for 13th Class

1. Agenda for 13th Class • Admin • Name plates • Handouts • Slide • Court Visit • Court Visit – Monday 10/19 • Dress nicely • Get to court by 9:15 so can read tentative rulings • Recommendation: take 8:50AM train opposite Law School • Bring as little as possible to court • May go until 1:30 • 1995 Exam • Issues in Court Visit Motions • Intro to Joinder • Intro to Class Actions

2. Assignments • Assignment for Monday (Court Visit) • Read documents on Webpage • Questions to think about / Writing Assignment for Group 5 • Who do you think will win each motion and why? • Your explanations can be very brief. • Assignment for Wednesday • Joinder • FRCP 7, 13, 14, 18, 20, 21 • Yeazell 793-97, 812-19 • Questions to think about / Writing assignment for Group 6 • Pp. 816 Q5 • Briefly summarize Price • Pp. 818ff. Qs 1-2 • Optional: Glannon Chapters 13-14 (Joinder) • Class Actions (see next slide)

3. Class Actions Assignment • FRCP 23 • Yeazell 859-61, 877-93 • Questions to think about / Writing assignment for Group 7 • Pp. 881ff. Qs 1, 2 • Summarize Walmart • Why do you think the plaintiffs brought the case as a 23(b)(2) class action rather than a 26(b)(3) class action? • What do you think the plaintiffs lawyers in Walmart should have done after the Supreme Court decision in Walmart? • Enrommanipulated 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 Enromon behalf of all shareholders who purchased stock during the period when the information was being withheld be appropriate? • RhinePoolsupplied blood to hemophiliacs, but failed to screen adequately for HIV. As a result, many hemophiliacs in dozens of states got AIDS and some died. Would a product liability class action against RhinePoolon behalf of all hemophiliacs who contracted AIDS as a result of contaminated blood produced by RhinePoolbe appropriate?

4. 1995 Exam

5. Issues in Court Visit Motions • 2 Summary Judgments (Khan, Ament) • Strange that not opposed • 2 Motions to Dismiss (Travis, Fromer) • Class action settlement approval (Kennedy) • No opposition, because both parties want to settle • In re PeliPopvich Hunt • Not clear what issues are • Extension of time to appeal? • Best to read D.Ct. Opinion, which is exhibit to Memorandum • No opposition because incoherent and so unlikely to succeed? • Motion to Bifurcate Trial (Ramirez) • Motion to remand (Wexler) • Complete Diversity; Removal; Remand • Motion to Strike Class Allegations (Sanchez) • Motion to Dismiss for Lack of Subject Matter (Fromer) • Mootness; lack of standing (injury)

6. Intro to 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 • But what “closely related” means varies depending on type of joinder • Complicated • Doesn’t matter tremendously • If claim can’t be joined, it can be brought separately • Joinder is mainly economizing device • Also prevents inconsistent judgments • Separate claims can be “consolidated” • Treated almost as if in the same case • Even if cases are joined, they can be “severed” • If the judge thinks that doing so would make the case easier to manage

7. Class Actions I • Class Action is super joinder device • Way of joining lots of plaintiffs (or defendants) • Single lawyer represents all • Consent from each plaintiff not required • “Class representative” is “named plaintiff” • Usually chosen by class lawyer • Advantages • Low cost as compared to lots of individual suits • Allows case to be brought where each plaintiff has stake that is too small to justify individual suit • But where, in aggregate, significant wrong has been done • Disadvantages • Class lawyer does not always act in interest of class • May be more interested in fees for self than in relief for class • Large magnitude of potential liability may “coerce” defendants into settling weak claims

8. Class Actions II • Class actions must be “certified” • Plaintiff’s lawyer first brings regular (non-class-action) case on behalf of named plaintiff(s) • Plaintiff’s lawyer then petitions judge to certify class • Prerequisites for class action • 1. Numerosity. Class is so large that joinder (under Rule 20) is not practical. 23(a)(1) • 2. Commonality. There are questions of law or fact common to all class members. 23(a)(2) • 3. Typicality. The class representative(s) have claims which are typical. 23(a)(3) • 4. Adequacy. The class representative(s) can adequately represent class. 23(a)(4) • Technically about parties. • In reality, about class lawyers. • Also, no conflicts of interest. • 5. Case must fit into one of 23(b) categories • See next page

9. Class Actions III • 23(b) categories • (b)(3). Primarily for money damages • E.g. mass tort • Common issues must “predominate” • Class action must be “superior to other available methods for fairly and efficiently adjudicating the controversy” • (b)(2). Injunctive or declaratory relief appropriate for whole class • E.g. desegregation, prison conditions • (b)(1). Risk of inconsistent litigation • E.g. limited fund or conflicting injunctions • Not very common • Interlocutory appeal of certification decision. 23(f) • Grant or denial • Discretionary with court of appeals

10. Class Actions IV • Notice and Opt-Out. 23(c)(2) • Only (b)(3) requires “best notice that is practical under the circumstances” • Only (b)(3) requires the class members be given the opportunity to “opt out” • Settlement with court approval only. 23(e)