CLASS ACTION JURY TRIALS

Transcription

1 CLASS ACTION JURY TRIALS Going the Distance Emily Harris Corr Cronin Michelson Baumgardner & Preece LLP

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3 The Class Action Landscape is Changing AT&T Mobility LLC v. Concepcion (2011) Class action arbitration waivers Wal-Mart v. Dukes (2011) Rule 23(a)(2) and (b)(2) Amgen Inc. v. Conn. Ret. Plans & Trust Funds (2013) Securities class actions and common proof Standard Fire Ins. Co v. Knowles (2013) CAFA removal and amount in controversy Comcast Corp v. Behrend (2013) Rule 23(b)(3) and individual damages Genesis HealthCare Corp v. Symczyk (2013) Offer of Judgment to moot named plaintiff claims in FLSA collective actions

4 Decertification Strategically use every opportunity after a class is certified to prepare for a motion to decertify the class. Discovery to demonstrate variability of class Motions directed at named plaintiffs Motions in Limine with respect to common evidence Expert opinions to demonstrate variability of class Evidence to demonstrate variability of the class

5 Jury Demand Defendants in class actions should consider whether to demand a jury trial. Plaintiffs class-wide claims may not appeal to a jury Named plaintiffs have credibility issues Defendant has a compelling story

6 Plaintiff s Trial Plan The judge asked the plaintiffs lawyer to propose a specific plan for litigating the case within the framework she had established. This was a reasonable request given the difficulty of trying a class action. Essentially [plaintiffs] asked the district judge to embark on a shapeless, freewheeling trial that would combine liability and damages and would be virtually evidence-free so far as damages were concerned. [I]f class counsel is incapable of proposing a feasible litigation plan though asked to do so, the judge s duty is at an end. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, (7 th Cir. 2013)

7 Class Member Discovery Some courts allow absent class member discovery. Courts use various factors to determine whether to allow absent class member discovery: Discovery is relevant and/or necessary Discovery seeks information not already known by defendant Discovery is not obtainable from the named parties or other sources Responding to discovery would not require assistance of counsel Discovery is not designed to take undue advantage of class members or to reduce the size of the class

8 Types of Class Member Discovery Document requests Interrogatories Class questionnaires Depositions Defendants generally need the court s permission to conduct absent class member discovery.

9 Tips for Class Member Discovery Include class discovery as a possibility in class notice Identify the information you really need Keep it simple Time it right Consider limiting to witnesses and declarants

10 Bifurcation For convenience, to avoid prejudice, or to expedite and economize, the court may order a separate trial of one or more separate issues, claims, crossclaims, counterclaims, or third-party claims. When ordering a separate trial, the court must preserve any federal right to a jury trial. Fed. R. Civ. P. 42(b). No fact tried by a jury shall be otherwise re-examined. U.S. Constitution, 7 th Amendment. Common issues vs individual issues Liability vs damages/punitive damages

11 Motions in Limine Common evidence Class opt outs Inability to speak with class member witnesses Class certification and notice process

12 Common Evidence What matters: the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Wal-Mart v. Dukes, 131 S. Ct. 2541, 2551 (2011) [W]hen individualized issues or determinations become central to a case, the class action no longer advances the efficiency and economy for which it was intended. One way this can happen is when a plaintiff brings a claim on a class-wide basis that raises individualized issues, but fails to provide common proof that would allow a jury to determine those issues on a class-wide basis. In the absence of common proof, the jury may have sufficient evidence to make judgments as to particular individuals, but lacks a basis to extrapolate from those findings to a class-wide judgment. Marlo v. United Parcel Service, Inc., 251 F.R.D. 476, (C.D. Cal. 2008)

13 Representative Testimony The plaintiffs propose to get around the problem of variance by presenting testimony at trial from 42 representative members of the class. Class counsel has not explained how these representatives were chosen. There is no suggestion that sampling methods used in statistical analysis were employed to create a random sample of class members to be witnesses. To extrapolate from the experience of the 42 to that of the 2341 would require that all 2341 have done roughly the same amount of work, including the same amount of overtime work, and had been paid the same wage. No one thinks there was such uniformity. Espenscheid v. DirectSat USA, LLC, 705 F.3d 770, 774 (7 th Cir. 2013)

14 Jury Instructions Preliminary instructions What is a class action Class definition Common or representative evidence

15 Jury Instructions A class action is a lawsuit that has been brought by one or more plaintiffs on behalf of a larger group of people who have similar legal claims. All of these people together are called a class. [Name of plaintiff] brings this action as the class representative. In a class action, the claims of many individuals can be resolved at the same time instead of requiring each member to sue separately. Because of the large number of claims that are at issue in this case, not everyone in the class will testify. You may assume that the evidence at this [stage of the] trial applies to all class members [except as I specifically tell you otherwise]. All members of the class will be bound by the result of this trial. Cal. Civ. Jury Inst. 115

16 Jury Instructions In determining whether plaintiffs have established their claims on behalf of the entire class, you may consider the representative testimony of a few class members and expert witness testimony. Wang v. Chinese News Daily, No (C.D. Cal. Jan. 10, 2007)

17 Jury Instructions Plaintiffs have the burden of proving that employee status was common to the class members during the class period. You should not consider individualized actions, conduct, or work experience unless you find that they reflect policies, procedures, or practices common to the class members during the class period. Anfinson v. FedEx Ground, No (WA Sup.Ct. Mar. 30, 2008)

18 Jury Instructions The evidence presented by the plaintiffs at this trial must be representative. Representative evidence is evidence that gives you reason to believe that the testimony presented by the employee witnesses at trial would also be true for those employees who do not testify. Moreover, the plaintiffs must also provide a sufficient amount of employee testimony for you to infer that the testimony would represent all of the employees joined in this lawsuit. DeAsencio v. Tyson Foods, Inc., No. 00-cv-4294 (E.D. Pa. June 2, 2006) (defendant s proposed jury instruction)

19 Jury Verdict Binds all class members who did not opt out: