Reading 1-5

Question 1

traditional conception of adjudication:

Answer 1

• lawsuit is bipolar
• litigation is retrospective
• right and remedy are independent
• the lawsuit is a self-contained episode
• the process is party-initiated and party-controlled

Question 2

ward off class actions by contract

Answer 2

• arbitration clauses that require individual arbitration (Supreme Court - it is enforceable)
• preclusion (estoppel) - defendants can purchase preclusion protection against later claims by class members “represented” in the class suit

Question 3

advantages of class actions

Answer 3

alleging the same wrong committed by the same defendant and obtain relief as a class
the claim is too small to justify the expense of a separate suit, so that without a class action there would be no relief

Question 4

Original Rule 23

Answer 4

class actions divided into 3 categories:

• true (joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it)
• hydrid (the right involved was several rather than joint, but the object of the action affected specific property involved in the action)
• spurious (the right involved was several, but there was a common question of law or fact affecting the several rights and a common relief was sought)

Question 5

Rule 23 (a)

Answer 5

numerosity
commonality
typicality
adequacy of representation

Question 6

Hansberry v. Lee

Answer 6

Lee and other whites v Hansberry (action to void sale of home on the basis of the covenant)
Hansberry's (Afro American) moved into a home in Chicago in an area covered by racially restrictive covenant. In reaction, owners of the neighbourhood sued to void the sale to Hansberry's. 
Hansberry's: covenant wasn't not effective, signed less than 95% of owners (as it was required, only 54% in fact). The trial court voided the sale and ordered them to move out, bc it was bound by a decision that the covenant is valid (Burke v Kleiman). Burke had been a class action that was binding on the Hansberry's grantor.

Question 7

Pennoyer v Neff

Answer 7

against 5th and 14th amendments:
The Fifth Amendment says to the federal government that no one shall be “deprived of life, liberty or property without due process of law.” The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe a legal obligation of all states.

Question 8

Hansberry v Lee

Answer 8

Those signers or their succesors who are interested in challenging the validity of the agreement and resisting its performance are not of the same class in the sense that their interests are identical so that any group who had elected to enforce rights conferred by the agreement could be said to be acting in the interest of any others who were free to deny its obligation

Question 9

Burke v Kleiman

Answer 9

Property owners association v Kleiman (landlord)

action to enforce restrictive covenant

Question 10

Hansberry v Lee

Answer 10

one is not bound by a judgment in personam in a litigation where he is not designated as a party or to which he has not been made a party by service of process.
exceptions:
representative suit (but only when those who are not present were adequately represented
or joint liability

Question 11

Kline v Coldwell

Answer 11

Antitrust claim
Sherman Act section 1
Outlaws conspiracy in restraint of trade
One form of such a conspiracy: price fixing

Question 12

Kline v Coldwell, Banker & Co

Answer 12

A couple sued on behalf of a class of 400.000 sellers of residential real property in LA alleging a conspiracy by realtors to fix an artificially high commission rate for such transactions.
Kline (representatives of 400.000 sellers in 1970 they paid a commission of 6%)+ another plaintiff for 2700
The named defendants are 32 real estate brokers and five associations, they designated as representatives of class of 2000 brokers.
Proposed by the plaintiffs members of the respective class:
1. to compel the defendant associations to furnish them with the lists showing the name and address of every broker
2. To search the files of the brokers and supply the name of every person who paid the commission. These persons (400.000) will be the class of represented plaintiffs.

Question 13

negative value suit

Answer 13

one in which the cost of pursuing a claim dwarfs the recovery if the plaintiff is successful

Question 14

Prerequisites to the class certification

Answer 14

1. Numerosity (where class member generally at least 40, sometimes even 30 possible) joinder is impractible and numerosity is satisfied + COMMON SENSE ASSUMPTION
2. Commonality - “absolute commonality is not required”. Generally, a plaintiff need only show that there is at LEAST ONE question of law or fact common to the class. Darden test in Oplchenski
3. The question of typicality is closely related to the preceding question of commonality. Criteria: whether the named representatives’ claims have the same essential characteristics as the claims of the class at large. Claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory. Despite factual differences in Oplchenski typicality satisfied - because the potential claims all involve the same alleged course of conduct by Defendants.
4. Adequacy of representation:
5. the representative doesn’t have antagonistic or conflicting interests compared with the class as a whole
6. the representative is sufficiently interested in the case outcome to ensure vigorous advocacy
7. class counsel is experienced, competent and qualified

Question 15

prerequisites to class certification

Answer 15

1. 23(a)
   numerosity (the class is so numerous that joinder of all members is impractible) - COMMON SENSE ASSUMPTION
   commonality (there are questions of law or fact common to the class)
   typicality (the claims or defenses of the representative parties are typical of the claims or defenses of the class)
   adequacy of representation ( the representative parties will fairly and adequately protect the interests of the class)
2. must fit within of the categories under the Rule 23(b)
3. a class action may be certified only if the class is adequately definable (Rule 23 (c)(1)(B)

Question 16

Simer v Rios

Answer 16

Eight individuals and Gray Panthers of Chicago (unicorporated non-profit organization)
The complain alleged several claims against CSA for its administration of the Crisis Intervention Program.
CIP was designed to enable low income individuals and families to participate in the energy conservation programs designed to lessen the impact of the high cost of energy. CSA “ a shut-off notice is needed”, though it violated EECSP bc “shall not be based solely on delinquency in payment of fuel bills”

Question 17

Simer v Rios (peace movement case DeBremaecker)

Answer 17

The complaint defined the class as "those individuals eligible for CIP assistance but who were denied assistance or were discouraged from applying because of the existence of the invalid regulation promulgated by CSA". 
Problems: to identify those individuals who qualify for CIP assistance (easy) but then to identify those individuals who not only qualified for CIP assistance, but also knew of the existence of the regulation and were discouraged from applying for assistance because of the shut-off notice requirement) (a burden for the court). The court denied class certification.
Rule 23 (b) (3) regulation was inconsistent with a statue - a common question
BUT proof of each member's state of mind would be necessary to show he was discouraged from applying for assistance by the regulation.
Each member's damage would also be separately proven. (Individual damages only 250 dollars)

Question 18

DeBremaecker

Answer 18

class action was filed on behalf of all state residents active in the peace movement who had been harassed or intimidated as well as those who feared harassment or intimidation in the exercise of their constitutional rights.

(class is not adequately defined 1) ambiguity in “peace movement”. did state law chill the residents in their exercise of their first amendment rights? depends on individual’s state of mind)

Question 19

Identification of the class

Answer 19

1. it alerts the court and parties to the burdens that such a process might entail
2. insures that those harmed by defendants wrongful conduct will be the recipients of the relief provided

Question 20

“fluid recovery”

Answer 20

generally used to refer to a variety of equitable procedures designed to allow a group of plaintiffs to recover based on alleged “aggregate” damages suffered by the class as a whole—rather than the harm suffered by each individual plaintiff.

Question 21

“fail safe” class problem

Answer 21

definition of a class as consisting of those whose rights have been violated, but this will be rejected.
Either the class win or lose they are not in the class and therefore not bound by the judgement.
Re Rodriquez:
a fail-safe class is a class whose membership can only be ascertained by a determination of the merits of the class, bc the class is defined in terms of the ultimate question of liability

Question 22

the ascertainability problem

Answer 22

The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership.

Carrera v Bayer
defendant sold an over-the-counter drug that was wrongly advertised as metabolism enhancing
How to track the customers?
1. Loyalty CVS cards
2.Affidavits of class members - was rejected because making false claims would be too easy
-whether most consumers were aware of or cared about the challenged claim

Question 23

Oplchenski v Parfums Givenchy

Answer 23

plaintiffs have filed a Fifth Amendment complaint challenging Defendants classification of “rotators” - and others who worked in the fragrance and cosmetics industry at department stores - as independent contractors rather than employees, thereby excluding them from participation in various employee benefits and benefit plans.
Oplchenski performed services as a rotator, was not offered any employment benefits, such as insurance and paid vacation.
When Norey was hired there was no discussion about whether she would receive company benefits.
Employee Retirement Income Security Act

Question 24

Oplchenski v Parfums

Answer 24

Finding that plaintiffs’s case is one seeking predominantly monetary damages, the court found the Rule 23(b)(3) should be applied. Plaintiffs could not show that common issues would “predominate” as required under Rule 23(b)(3).
Defendants failed to to show that liability turns predominantly on the common issue whether Defendants controlled the manner and means of the rotators’ work. Defendants said that liability refers to the individual terms of the plans.

Question 25

Wal-Mart case

Answer 25

ISSUES:
1. Whether common questions predominate over individual issues
2. Court used the dissimilarities approach - attention on what distinguishes individual class members, rather than on what unites them
+back pay awards - and Court addressed the inclusion of those claims in a Rule 23(b)(2) class action
ALLISON V CITGO
5th circuit: would permit the certification of monetary relief that is incidental to requested injunctive or declaratory relief

Question 26

Wal-Mart, Inc v Dukes

Answer 26

most expansive class actions ever (1.5 million plaintiffs)
TITILE VII CLAIMS
Pay and promotion committed to local managers’ broad discretion (largely subjective).
Plaintiffs are current or former employees who insist that the company discriminated against them on the basis of their sex by denying them equal pay or promotions.
Their complaint seeks injunctive and declaratory relief, punitive damages and backpay. It does not ask for compensatory damages. They claim the discrimination is common to all Wal-Mart female employees.
The crux of the case - commonality.
Commonality requires the plaintiff to demonstrate that the class members “have suffered the same injury” => the determination will resolve the issue that is central to the validity of each one of the claims in one stroke.
There wasn’t a common question, because respondents couldn’t provide convincing proof of a company-wide discrimination pay and promotion policy.
The experience individual woman may differ.

Question 27

Falcon (commonality issue) and Wal-mart

Answer 27

An employee who claimed he was denied a promotion on the race basis:
1. used a biased testing procedure to evaluate both applicants for employment and incumbent employees.
In Wal-Mart - permission of certain discretion decision-making only to avoid evaluating under a common standard.
2. significant proof that an employer operated under a general policy of discrimination
In Wal-Mart entirely absent. The only proof is the testimony of sociological expert. The only possible policy is policy of allowing discretion.
In Falcon “one named plaintiff’s experience of discrimination was insufficient to infer that discrimination is typical…”

Question 28

General Telephone of the Southwest v Falcon

Answer 28

Mexican-American employee who had been hired and twice promoted before, but after that the promotion went to the less-qualified white employee.
He sued on behalf of the class of all present or future Mexican-American employees of defendant, claiming that the company discriminated in hiring and promotion.
He didn't satisfy the typicality requirement! The job applicant and promotion classes should not be combined.

Question 29

Peil v National Semiconductor Corp. (adequact of representation)

Answer 29

Securities fraud action
Plaintiff bought 500 shares of National Semiconductor Corp.
Plaintiff alleged that the defendants misrepresented the financial health of the company to inflate the stock value while they sold their stock
He sought to represent the interests of those who purchased the shares between July and March (1977)
Third Circuit has adopted the rule: 1. interests are not antagonistic 2. their attorney is capable to prosecute the claim with some degree of expertise
the plaintiff is an adequate representative

Question 30

Wetzel rule

Answer 30

need not to be the best, but one that will pursue a resolution of the controversy with the requisite vigor and in the interests of the class

Question 31

Rodriquez v West Publishing Company

Answer 31

Plaintiffs purchased BAR/BRI bar preparation course between 1997 and 2006 filed a class action claiming that West and Kaplan violated the antitrust laws by entering into agreement in 1997 to limit the competition.
Settlement agreement - 49 million (recover up to 30%).
The class members were given notice of the proposed settlement as required by Rule 23(e)
incentive awards agreements (4+3)
A number of class members objected to the settlement and in particular to the incentive award agreements
Arrangement was not disclosed when it should have been.
Violation of California Rules of Professional Conduct
Class representatives interests are different from the class interests in settling a case instead of trying it to verdict, seeking injunctive relief and insisting on compensation
Violation of fiduciary duties to the class and duty of candor to the court

Question 32

Incentive award

Answer 32

• discretionary
• intented to compensate class representatives for work done on behalf of the class
• make up for financial and reputational risk
• recognize their willigness to act as a private attorney general
• generally after a settlement or verdict

Question 33

Ortiz v Fibreboard

Answer 33

• asbestos case

Question 34

Rule 23.b.1.B

Answer 34

The idea is to provide a parallel to Rule 19, when proceeding in the absence of nonparties would predjudice them as a practical matter, but they are too numerous to be joined, the class action provision provides a method of representing their interests and binding them

Question 35

23.b.1.A.

Answer 35

Incompatible standards class actions.
By taxpayers to invalidate municipal actions
Suits by shareholders to compel the declaration of a dividend
Van Gemert v Boieng
Where money damages are central to a case, courts have often refused to certify an “incompatible standards” class (Alexander Grant v Co)
Is applicable only for to actions in which not only a risk of inconsistent adjudications but also where the nonclass party could be sued for different and incompatible affirmative relief.

Question 36

23(b)(2) injunctive/declaratory relief

Answer 36

an order issued by a court, which requires a person to do or cease doing a particular action: in the former case the court will issue a mandatory injunction, in the latter a prohibitory injunction

Question 37

Parsons v Ryan

Answer 37

A class and subclass of inmates in Arizona’s prisons system who claim that they are subject to systematic Eight Amendment violation (no cruel and unusual punishment).
Numerous violations of medical care, dental care. mental health care and conditions of confinement in isolation cells
The inmates seeks declaratory and injunctive relief
the district court certified a class of inmates challenging ADC health care and policies
and a subclass of inmates challenging ADC isolation unit policies and practices
inadequate staffing, denials of medical care, lack of medical treatment, failure to provide medication, grossly dental care, failure to provide therapy and medication
a 74 p complaint
reports from four experts

Question 38

Parsons v Ryan

Answer 38

for relief: eliminate the substantial risk of serious harm  (10 separate issues)
Rule 23.b.2 applies only when a single injunction or declaratory judgment would provide relief to each member of the class, it doesn't authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.

Question 39

23.b.3

Answer 39

predominance. if there are no common questions or only common questions - the issue of predominance is automatically resolved
superiority

Question 40

Amgen case (add)

Answer 40

securities fraud complaint filed by the Connecticut Retirement against Amgen and several its officers
Fraud of the market presumption
fraud-on-the-market presumption - price of security traded in a market will reflect all publicly available information about a company, a buyer presumed to have relied on that information

Question 41

Smilow v Southwestern

Answer 41

an appeal from a decision decertifying class action by phone customers
charged for incoming calls
standard form contract signed
“chargeable time for calls originated” what originated mean?
Smilow received just one call
Bibeau paid knowing she was charged, user guide also charge for incoming and outgoing calls
suit for breach of contract and violation of Ch. 93A
Substitute Bibeau, but the defendants filed a motion saying that common issues of fact don’t predominate
district court: decertification of the class, no breach of contract, bc telephone services supposed to be paid off, no causation from plaintiffs
to be a common issue = the issue that doesn’t require separate dispute resolution
rejection of class certification bc:
1. 2 groups of members with statutory damages and actual damages, hard to calculate
2.causation had no common issues, services were received in return for the billed payments
MISTAKE OF THE DISTRICT COURT

Question 42

Smilow v Southwestern

ERRORS

Answer 42

1. even if plaintiffs were prevail on their breach of contract claim, quantum meruit, but we have a contract
2. the common factual basis is found in the terms of contract, which are identical for every member of the class
   expert: it is possible to calculate the actual damages
   RULE 23.B.3 requires merely that common issues predominate, not that all issues be common to the class, the court can subclass or exclude class (by affirmative defense from the other party)
   Under 23.b.3. generally find that predominance requirement to be satisfied even if individual questions remain, even with individual issues it is possible with 23.c.4
   93A -unfair act of practice
   93A is always for statutory damages and actual damages group? if the conflict arises the action would only seek statutory damages, those who wish individual ones can opt-out

Question 43

quantum meruit

Answer 43

one who renders goods and services in the absence of enforceable contract may be entitled to payment for those services to the extent the recipient benefitted from them

Question 44

state of the art defense

Answer 44

The state-of-the-art defense allows a defendant to be absolved of liability if he can prove that the state of technical and scientific knowledge, at the time when he put the product into circulation, was not such as to enable the existence of the defect to be discovered.

Question 45

23.b.3

Answer 45

mass tort class actions 
Agent Orange case - chemical that was disseminated in the air over southeast Asia (can be complicated by the use of other chemicals in Vietnam)

Question 46

Castano v The American Tobacco Co

Answer 46

the plaintiffs filed the case against tobacco companies and the Tobacco institute seeking compensation for the injury of nicotine addiction
defendants fraudulently failed to inform consumers that nicotine in cigarettes is addictive and manipulated the level of nicotine (fraud, negligent representation, intentional infliction
the plaintiffs seek compensatory and punitive damages and attorneys fees + equitable relief
initially class defined as "all nicotine dependent persons in the US"
Plaintiffs proposed 4-phase trial plan
23(A)+, 23.b.2 no, but try to make 23.b.3.
4 categoris:
1. core liability (fraud and breach of warranty)
2. injury in fact, proximate cause, reliance, affirmative defenses, compensatory damages - REPLETE WITH INDIVIDUAL CIRCUMSTANCES
3. compensatory damages -  
4. punitive damages - the court adopted the plaintiff's trial plan for punitive damages=> and then analyzed all the categories
the district court erred - failed to consider how plaintiffs addiction claims would be tried, individually or on a class basis

Question 47

core liability (Castano case)

Answer 47

common factual issues whether defendants knew cigarette smoking was addictive, failed to inform cigarette smokers of such and took actions to addict cigarette smokers (predominance was satisfied here)

Question 48

Castano case needs to be decertified

Answer 48

1. fails the superiority requirement 23.b.3
2. difficulties: difficult choice of law determination, subclassing notice to millions of people, procedure who is nicotine dependant (a million of individual cases? speculation)
3. they can sue in individual order: expenses can be covered by the statutes

Question 49

Re Nassau County Strip Search Cases

Answer 49

blanket strip search policy for newly admitted, misdemeanor detainees (violation of the 4th amendment - the right to be secure, against unreasonable searches)
court said: individual liability issues predominate 23.c.4.
seeking for compensatory and punitive damages, injunction and declaration
23 (a) but then the court decided that the individualized issues predominate: reasonable suspicions? the existance of proximate causation for each alleged injury and compensatory and punitive damages calculations.=>
settlement
here absence of class action - individuals will be harmed by defendants’ policy and practice may lack an effective remedy altotogether
1. they have little interest in maintaining separate actins since there already exists a concession of liability and most putative class members will not even know that they suffered a violation
2. the action already progressed substantially
3.concentration in one forum - simplifies the litigation procedure
4. the court erred that class action was not the most fair and efficient litigation

Question 50

is it possible to certify under 23.c.4 when the entire claim does not satisfy rule 23.b.3?

Answer 50

circuits have split on this regard
5th circuit - a strict application of rule 23.b.3 predominance requirement - Castano case
9th circuit - it is possible to isolate the common issues under Rule 23.c.4. and proceed with class treatment of these particular issues (author's agree here)

Question 51

McLaughlin v American Tobacco

Answer 51

court rejected certification of the class
marketing "Light" cigarettes as safer to smoke
it depends how much do they smoke
1996 Advisory Note: we can pair issues, but only for liability purposes and leave the damages for personal cases

Question 52

defendant class actions

Answer 52

• rare as unicorns

- patent infringement cases, validity of state law

Question 53

Amchem case

Answer 53

-class-action certification to achieve global settlement of current and future asbestos-related claims (asbestos manufactured by 20 companies)
-district court certified the class for settlement only
current and future claims
class members were exposed to different asbestos-containing products, in different ways, over different periods and for different amounts of time
conflict of interests in the class: currently afflicted and exposure-only claimants
predominance: shared experience of asbestos exposure and common interest in receiving prompt and fair compensation, class cohesion each one has an individual story + factor of cigarette smoking
named plaintiffs with different medical history sought to act on behalf of single giant class rather than on behalf of discrete subclasses - different interests for the currently injured and those who are not
critique of the Supreme Court that it was too cautious to settlement class actions
conflict between parties, different law

Question 54

Re Hydrogen case

Answer 54

antitrust action - standards a district court applies when deciding whether to certify a class
1. calls by findings of the court
2.court must resolve all legal and factual disputes
3. to consider the evidence and arguments
Hydrogen peroxide is used in the pulp and paper industry
Plaintiffs purchasers sue producers for price fixing (products had different concentrations)
Predominance requirement disputed in the appeal
the elements of the claim: violation of the antitrust law, individual injury resulting from that and measurable damages
in anti-trust claim impact is often important for the purpose of evaluating predominance, they need to prove that it’s common to the class
opinions of 2 experts were irreconcilable

Question 55

Hydrogen case

Answer 55

expert of the plaintiff : producers compete on price, production is highly concentrated, high barriers to entry.
expert of the defendant: they are fungible, different supply

Question 56

Re New Motor Vehicles Canadian Export car Antitrust Litigation

Answer 56

car manufactures, dealers and trade associations restrict the entry of Canadian cars into the American market 
General Motors had filed its motion for summary judgment. not yet even a discovery deadline
In short, it should not have filed this motion, it should have alerted other parties that the summary judgment would be in order before class certification.

Question 57

Re Cardinal case

Answer 57

Five of the plaintiffs have moved to appoint Lead Counsel and Liaison Counsel
if the parties cannot decide themselves - this duty is left to the court

Question 58

class settlement

Answer 58

1. require judicial approval
2. often involve non-monetary relief
3. objectors may come and argue