Bifurcated Discovery in Class Actions: an Effective Strategy to Prevent the Continuation of the Unmeritorious Lawsuit
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The Shadow Rules of Joinder
Brooklyn Law School BrooklynWorks Faculty Scholarship 2012 The hS adow Rules of Joinder Robin Effron Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons Recommended Citation 100 Geo. L. J. 759 (2011-2012) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. The Shadow Rules of Joinder ROBIN J. EFFRON* The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same "transactionor occurrence" or a "common question of law or fact." Both phrases have proved to be notoriously tricky in application.Commentators from the academy and the judiciary have attributed these difficulties to the context- specific and discretionary nature of the rules. This Article challenges that wisdom by suggesting that the doctrinal confu- sion can be attributed to deeper theoretical divisions in the judiciary, particu- larly with regardto the role of the ontological categories of "fact" and "law." These theoretical divisions have led lower courtjudges to craft shadow rules of joinder "Redescription" is the rule by which judges utilize a perceived law-fact distinction to characterizea set of facts as falling inside or outside a definition of commonality. "Impliedpredominance" is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement. -
Motion for Stay of Discovery
Case 2:18-cv-00907-KOB Document 28 Filed 11/02/18 Page 1 of 5 FILED 2018 Nov-02 PM 04:12 U.S. DISTRICT COURT N.D. OF ALABAMA IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION LAKEISHA CHESTNUT, et al., ) ) Plaintiffs, ) ) vs. ) CASE NO. 2:18-CV-00907-KOB ) JOHN H. MERRILL, ) ) Defendant, ) ) DEFENDANT SECRETARY OF STATE’S (OPPOSED) MOTION TO STAY DISCOVERY Defendant, Secretary of State John H. Merrill, respectfully requests a stay of all parties’ discovery obligations until the Court resolves the validity of Plaintiffs’ complaint. Secretary Merrill has filed a Motion for Judgment on the Pleadings arguing that Plaintiffs’ claims should be dismissed because jurisdiction lies with a three-judge court, because Plaintiffs have failed to plead facts demonstrating a proper remedy, and because Plaintiffs claims are barred by laches. When such a motion is pending, Circuit law compels a stay to guard against the “significant costs” of unwarranted discovery requests. Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1367 (11th Cir. 1997). Counsel for Defendant have consulted with counsel for the Plaintiffs, and Plaintiffs oppose this motion. Case 2:18-cv-00907-KOB Document 28 Filed 11/02/18 Page 2 of 5 I. Background Eight years after the last census and two years before the next one, Plaintiffs brought this action claiming that Alabama must re-draw its seven congressional districts to include a second majority-black district. See doc. 1. Secretary Merrill moved to dismiss when Plaintiffs failed to allege that they would reside in a re- configured majority-black district, see doc. -
Initial Stages of Federal Litigation: Overview
Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery. -
Illinois Civil Practice Guide
Practice Series Illinois Civil Practice Guide Andrew W. Vail Colleen G. DeRosa © 2012 JENNER & BLOCK LLP ALL RIGHTS RESERVED www.jenner.com ABOUT JENNER & BLOCK Founded in 1914, Jenner & Block is a national law firm of approximately 450 attorneys. Our Firm has been widely recognized for producing outstanding results in corporate transactions and securing significant litigation victories from the trial level through the United States Supreme Court. Companies and individuals around the world trust Jenner & Block with their most sensitive and consequential matters. Our clients range from the top ranks of the Fortune 500, large privately held corporations and financial services institutions to emerging companies, family-run businesses and individuals. OFFICES 353 North Clark Street 633 West Fifth Street, Suite 3500 Chicago, Illinois 60654-3456 Los Angeles, California 90071 Firm: 312 222-9350 Firm: 213 239-5100 Fax: 312 527-0484 Fax: 213 239-5199 919 Third Avenue, 37th Floor 1099 New York Avenue, N.W., Suite 900 New York, New York 10022-3908 Washington, D.C. 20001-900 Firm: 212 891-1600 Firm: 202 639-6000 Fax: 212 891-1699 Fax: 202 639-6066 © 2012 Jenner & Block LLP. This publication is not intended to provide legal advice but to provide general information on legal matters. Transmission is not intended to create and receipt does not establish an attorney- client relationship. Readers should seek specific legal advice before taking any action with respect to matters mentioned in this publication. The attorney responsible for this publication is Andrew W. Vail. ATTORNEY ADVERTISING 1 AUTHOR INFORMATION Andrew W. Vail is a partner in Jenner & Block’s Litigation Department and a member of the Firm’s Complex Commercial and Antitrust Litigation Practice Groups. -
Information Sheet No. 5 Discovery
U.S. Merit Systems Protection Board Information Sheet No. 5 Discovery Purpose. The purpose of this information sheet is to provide general guidance and background information. It does not represent an official statement approved by the Board itself, and is not intended to provide legal counsel or to be cited as legal authority. Instead, it is intended only to help the public become familiar with the MSPB and its procedures. In all instances, however, the Board’s regulations and current case law control with respect to the matters discussed here. What is discovery? Discovery is the procedure by which you may ask questions, or obtain documents or answers from the opposing party or third parties in order to "discover" information that is calculated to lead the parties to find admissible evidence. How does discovery work? A party must make its first discovery request within 30 days following the date of the Board's Acknowledgment Order in the case. Otherwise, the request will be considered untimely (late), and the other party may be excused from having to answer it. Following receipt of a discovery request, a party must respond to it within 20 days after the date of service. If the response is inadequate, or if the discovery request is ignored, the party that made the discovery request may file a "Motion to Compel Discovery" with the administrative judge (AJ). A Motion to Compel Discovery must be filed within 10 days after the objection or nonconforming response is served, or within 10 days after the time limit for response has expired. -
Summary Judgment Or Settlement In
EDITOR-IN-CHIEF: ELIOT N. KOLERS STIKEMAN ELLIOTT LLP Volume 9 Number 3 March 2015 IN THIS ISSUE FIGHT OR FLIGHT: SUMMARY JUDGMENT Most class actions result in settlements. OR SETTLEMENT IN CLASS ACTIONS However, with the Supreme Court of Canada’s recent ruling in Hryniak breathing new life nationally into summary judgment, class action counsel now have another tool at their disposal that may provide an effective means to bringing class actions to a cost-effective and timely resolution on the merits. Monique Jilesen and Julia Brown of Lenczner Slaght Royce Smith Griffin LLP consider the possible advantages of summary judgment and the risk of the settlement approval process in class actions………………....29 Monique Jilesen Julia Brown PARTNER ASSOCIATE Despite an unusual decrease in class LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP LENCZNER SLAGHT ROYCE SMITH GRIFFIN LLP action activity in Alberta this past year, a significant ruling emanating from the interplay between class actions and With a low threshold for certification, a defendant facing a class action third-party claims (and the tension has a number of tactical decisions to make from a cost, legal, and reputa- between them) was released. Michael Mestinsek, Brandon Mewhort and David tional perspective. In order to manage the cost and reputational issues, Price of Stikeman Elliott LLP analyze defendants have arguably too often been choosing to settle class actions the decision in Harrison v. XL Foods and that could have been successfully defended on the merits. The Supreme its possible impact, all within the context of the recent class action landscape in Court has recently breathed new life into another tool for defendants in Alberta…………………………………..35 class actions to consider—summary judgment.1 Rather than focusing one’s efforts on defending certification or achieving an early settlement, defendants can consider dealing with the action on its merits in a sum- mary judgment motion. -
A New Approach to Plaintiff Incentive Fees in Class Action Lawsuits
Copyright 2020 by Jason Jarvis Printed in U.S.A. Vol. 115, No. 3 Note A NEW APPROACH TO PLAINTIFF INCENTIVE FEES IN CLASS ACTION LAWSUITS Jason Jarvis ABSTRACT—Because modern litigation is time-intensive and expensive, a consumer has no monetary incentive to sue over a low-value claim—even when the defendant has clearly violated that consumer’s legal rights. But the defendant may have harmed many consumers in the same way, causing significant cumulative damage. By permitting the aggregation of numerous small claims, class action lawsuits provide a monetary incentive for lawyers and plaintiffs to pursue otherwise low-value suits. Often, an important part of this incentive is the “incentive fee,” an additional payment awarded to the named plaintiffs as compensation for the time they spend and risks they assume in representing the class. But such fees have the potential to create dangerous conflicts of interest—named plaintiffs may be “bought off” with a large incentive fee to give their approval to an otherwise unfair settlement. To avoid this problem, courts must review and approve requests for incentive fees. Unfortunately, courts do not adequately evaluate the dangers of incentive awards and balance these dangers against the justifications for such awards. This Note proposes a new test to better guide courts in assessing the propriety of incentive fees. Specifically, courts should look at (1) the amount of time and effort that the plaintiff expended in pursuing the litigation; (2) risks that the named plaintiff faced in bringing and advancing the litigation; and (3) evidence of conflicts of interest that might prejudice the class. -
Class Action Lawsuits: a Legal Overview for the 115Th Congress
Class Action Lawsuits: A Legal Overview for the 115th Congress Updated April 11, 2018 Congressional Research Service https://crsreports.congress.gov R45159 Class Action Lawsuits: A Legal Overview for the 115th Congress Summary A class action is a procedure by which a large group of entities (known as a “class”) may challenge a defendant’s allegedly unlawful conduct in a single lawsuit, rather than through numerous, separate suits initiated by individual plaintiffs. In a class action, a plaintiff (known as the “class representative,” the “named representative,” or the “named plaintiff”) may sue the defendant not only on his own behalf, but also on behalf of other entities (the “class members”) who are similarly situated to the class representative in order to resolve any legal or factual questions that are common to the entire class. Courts and commentators have recognized that class actions can serve several beneficial purposes, including economizing litigation and incentivizing plaintiffs to pursue socially desirable lawsuits. At the same time, however, class actions can occasionally subject defendants to costly or abusive litigation. Moreover, because the class members generally do not actively participate in a class action lawsuit, class actions pose a risk that the class representative and his counsel will not always act in accordance with the class members’ best interests. In an attempt to balance the benefits of class actions against the risks to defendants and class members, Federal Rule of Civil Procedure 23 establishes a rigorous series of prerequisites that a federal class action must satisfy. For similar reasons, Rule 23 also subjects proposed class action settlements to the scrutiny of the federal courts. -
Rejecting the Class Action Tolling Forfeiture Rule
41674-nyu_94-4 Sheet No. 163 Side A 10/04/2019 07:34:32 \\jciprod01\productn\N\NYU\94-4\NYU409.txt unknown Seq: 1 3-OCT-19 14:08 REJECTING THE CLASS ACTION TOLLING FORFEITURE RULE JAMES J. MAYER* This Note analyzes a circuit split over the application of the Forfeiture Rule, which holds that plaintiffs forfeit American Pipe tolling when they file individual actions before class certification has been resolved in the underlying putative class action. This Note rejects the Forfeiture Rule and argues that it misunderstands the purpose and rationale of American Pipe and class action tolling. Given the increased uncer- tainty facing class action plaintiffs, the policy and equity interests that motivated courts to adopt the Forfeiture Rule now require courts to abandon it. This is the first article to analyze the Forfeiture Rule’s history and evolution, to explore the impact of changes in class action jurisprudence on statutes of limitations on the Forfeiture Rule, and to argue against the continued viability of the Forfeiture Rule across the federal judicial system. INTRODUCTION ................................................. 900 R I. AMERICAN PIPE TOLLING AND THE FORFEITURE RULE ...................................... 905 R A. The Creation and Policy Goals of American Pipe Tolling .............................................. 906 R B. Individual Plaintiffs and the Forfeiture Rule . 909 R C. The Development of the Forfeiture Rule . 911 R 1. In Favor of the Forfeiture Rule . 911 R 2. Against the Forfeiture Rule. 916 R II. CHANGES IN THE LAW DEMONSTRATE WHERE THE FORFEITURE RULE CAN LEAD TO INJUSTICE . 922 R A. Class Certification Is More Uncertain . 922 R 41674-nyu_94-4 Sheet No. -
Effective Discovery Strategies in Class-Action Litigation by David R
Spring 2014, Vol. 28 No. 3 TABLE OF CONTENTS _________________________________________________________________________________________________________ Articles » Effective Discovery Strategies in Class-Action Litigation By David R. Singh and Gaspard Curioni Lay the foundation for timely, fair, and cost-efficient resolution of a putative class action. Strategies for Removal under the Class Action Fairness Act By Wystan Ackerman Removal to federal court under CAFA requires swift action. Navigating CAFA Removal and Remand Strategies By Jennifer L. Gray Decisions concerning removal and remand under CAFA have exhibited an interesting dichotomy. A Brief Guide to Removal By Matthew M.K. Stein Removing a case to federal court is a technical and detail-oriented process. News & Developments » Potential Conflicts of Interest for Class-Action Counsel Class-action counsel should be aware of potential issues and evolving interests that may arise after a settlement agreement is reached. SCOTUS Relaxes Attorney Fee Standard in Patent Infringement Cases The Court, in two unanimous decisions, held that the Federal Circuit's test for awarding attorney fees in patent-infringement cases was too rigid. Corporate Counsel Spring 2014, Vol. 28 No. 3 _________________________________________________________________________________________________________ ARTICLES Effective Discovery Strategies in Class-Action Litigation By David R. Singh and Gaspard Curioni – May 26, 2014 Discovery in class-action litigation is notoriously asymmetric. While a corporate defendant -
United Healthcare Corporation Class Action Litigation Frequently Asked Questions
United Healthcare Corporation Class Action Litigation Frequently Asked Questions 1. Overview 2. What benefits does the Settlement provide? 3. Why did I receive this information when I was never a subscriber or out-of-network provider? 4. Why did I receive more than one Notice? 5. I believe I am a Class Member, but I did not receive the Notice and Claim Form. How can I obtain a copy of these documents? 6. What are my options? 7. What do I need to do in order to take part in this class action and receive a payment? 8. How much money am I likely to receive from this class action? 9. When can I expect to receive my payment? 10. If I missed the filing deadline, will my late claim be accepted? 11. How can I exclude myself from this Settlement? 12. I am a primary insured. Should my claim have information for the medical services and supplies I personally used, or those used by my family (myself and the dependents listed in my coverage)? 13. I have a number of healthcare services claims that UHC denied completely. Can I make a claim for such denied medical services? 14. The Notice says that I may request certain claims information. What do I need to do? 15. I am a Provider and would like to know whether some of the patients that owe me money filed claims in this case. What do I need to do? 16. Some of the information on my record of medical services is either missing or wrong. -
Bill of Particulars—A Very Powerful Tool
Demand for a Bill of Particulars—A Very Powerful Tool What discovery methods do you consider when you are strategizing about the most effective method to obtain the information you need to pin down your opponent? If you are defending a contract case, think about serving a Demand for Bill of Particulars. A Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint]. It is a cost-effective method with a turnaround time of 10 days and if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross- complainant [plaintiff] from proving the debt is owed. Unlike interrogatories and deposition responses where contradictory evidence can be admitted by the plaintiff, the Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial. What is a Demand for Bill of Particulars? The Demand for a Bill of Particulars presumes that the plaintiff suing has a “book” or “contemporaneous ledger” or an “account” to support any charges when the complaint was filed and provides a court process to require that it be presented upon demand. The account, unlike the pleading in a complaint, is supposed to “furnish a defendant with the details of the items charged against him…” Meredith v. Marks (1963) 212 Cal. App. 2d 265, 269. This procedure dates back to early common law when plaintiff sued on an alleged account, and the pleadings gave no specifics as to the nature of the claim –i.e., whether contract, quasi-contract etc.