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Class Actions: The Law of 50 States
Incisive Media, Pages: 500
CHAPTER 1
Background to Class Action Litigation
1.01 The Nature and Purpose of the Class Action
[1] The Basic Elements of a Class Action
[2] Purpose
1.02 Historical Origins
[1] The English Courts of Equity
[2] United States Federal Court
[3] State Courts
1.03 Recognizing and Analyzing Potential Class Action Litigation
1.04 Rules, Guidelines and Interpretations
[1] Federal Rule 23
[2] The Uniform Law Commissioners’ Model Class Actions Rule
[3] State Class Action Rules
CHAPTER 2
Selecting a Proper Class Representative
2.01 Individual Standing
[1] Plaintiff Class Actions
[2] Defendant Class Actions
2.02 Representative Standing
[1] Practical Considerations
[2] Typical Claims
[3] Differing Damage Claims and the Effect on Typicality
[4] Typicality and Common Law Fraud Actions
[5] Adequacy of Representation by the Class Representative and Counsel
CHAPTER 3
The Complaint
3.01 Basic Pleadings
[1] The Case Caption
[2] Identifying the Named Parties and the Nature of the Action
[3] Identifying the Class
[4] Preliminary Statement
[5] Damages
3.02 Pleading Specific Causes of Action
[1] Breach of Contract and Express Warranty
[2] Common Law Fraud
[3] Consumer Protection Statutes
[4] Breach of Fiduciary Duty
[5] Unjust Enrichment
[6] Negligence
CHAPTER 4
Pre-Class Certification Litigation Practice
4.01 In General
4.02 The Preliminary Conference and the Answer to the Complaint
[1] The Preliminary Conference
[2] The Answer
[3] Recusal and Disqualification of Class Counsel
4.03 Defendant’s Motion to Dismiss
[1] Failure to State a Claim
[2] Pleading Deficiencies
[3] Lack of Jurisdiction
[4] Standing
[5] Mandatory Arbitration Clauses and Class Action Waicers: Motions to Compel Arbitration and Stay or Dismiss Class Action Claims
[6] Attack on Class Allegations
[7] Removal of State Court Class Actions to Federal Court and Remand Back
[8] Competing Class Actions
[9] Plaintiffs’ Motion to Strike Class Allegations
4.04 Motions for Summary Judgment
[1] Defendant's Motion for Summary Judgment
[2] Plaintiff’s Motion for Summary Judgment
4.05 Destruction of Records
4.06 Offers to Settle Independently with the Class Representative or Class Members
[1] Offers to the Class Representative
[2] Unauthorized Communication with Class Members
4.07 Interpleaders and Bankruptcy Proceedings
4.08 Pre-Certification Discovery
[1] Discovery of Plaintiffs
[2] Discovery of Defendants
4.09 Counterclaims
4.10 Sanctions and Lawsuits Against Class Representatives and Their Attorneys
CHAPTER 5
Procedural Aspects of the Motion for Class Certification
5.01 Issues Before the Court
5.02 The Timing and the Format of the Certification Motion
[1] Timing
[2] Format
5.03 Appeals of Certification Orders
CHAPTER 6
Requirements for Class Action Certification
6.01 Basic Considerations
6.02 Class Identification
6.03 Numerosity
6.04 Common Questions of Law and Fact
[1] Breach of Contract
[2] Breach of Warranty
[3] Common Law Fraud
[4] Unfair and Deceptive Trade Practices
[5] Breach of Fiduciary Duty
[6] Negligence
[7] Mass Torts
[8] Violation of State and Federal Statutes
[9] Declaratory Judgments and Injunctive Relief
[10] State Civil RICO Claims
6.05 Typicality of Claims and Adequacy of Representation
[1] Typicality
[2] Adequacy of Representation
6.06 Superiority of the Class Action Device
[1] Mandatory Arbitration
[2] Motions To Stay Class Actions and Compel Arbitration
[3] Class Wide Arbitration Proceedings
[4] Overcoming Arbitration Clauses
6.07 Manageability
[1] De Minimis Damages
[2] Fluid Recovery Concepts
[3] Jurisdiction Over Non-Residents
[4] Improper Venue and Forum Non Conveniens
[5] Choice of Law Considerations
[6] Limiting Class Actions to One State
[7] Trial Plans
6.08 Consideration of the Merits
6.09 Selection of Lead Class Action Counsel
[1] The Private Securities Litigation Reform Act
[2] Fee Auctions
[3] Intervention to Protect the Class
6.10 Modification and Decertification Orders
6.11 Sanctions Against Class Action Attorneys
CHAPTER 7
Notice of the Action to Class Members
7.01 Supreme Court Guidelines
7.02 State Practice
[1] The Timing of the Notice
[2] Mandatory vs. Discretionary Notice
[3] Contents of the Notice
[4] Methods of Notice
[5] Cost of Notice
CHAPTER 8
Discovery and Trial
8.01 Preparing for Trial
8.02 Discovery
[1] Discovery by Plaintiffs
[2] Discovery by Defendants
8.03 Trial of the Class Action
[1] Bifurcation and Subclassing
[2] Representative Proof
[3] Using Class Members as Witnesses
[4] Inferences and Circumstantial Evidence
CHAPTER 9
Settlements
9.01 Settling Class Actions
9.02 Approval of the Court
[1] In General
[2] The Court as Guardian of the Class
9.03 Settlement Procedures
[1] Stipulation of Settlement
[2] Preliminary Court Approval
[3] Notice of the Proposed Settlement
[4] The Settlement Hearing
[5] Finality, Collateral Attacks and Injunctions
CHAPTER 10
Costs and Attorney’s Fees
10.01 Introduction
10.02 Fees Based on a Percentage of Recovery
[1] Criticism of the Lodestar Method
[2] Percentage Fees in Coupon Settlements
[3] Common Fund Fees Based Upon Benefits Generated For Opt-Outs
[4] Interim Fee Awards
10.03 The Lodestar Approach to the Payment of Fees
[1] Policy Considerations
[2] Time and Costs Records
[3] Establishing Beneficial Hours and Expenses
[4] Establishing the Hourly Rate
[5] Lodestar Computation
[6] Augmentation of the Lodestar
[7] Responsibility for Payment
[8] Fee Disputes
10.04 Applying for the Fee and Notifying the Class
[1] The Time of Filing the Application
[2] Disclosure of Fee Sharing Arrangements
[3] Notice to the Class
[4] The Final Fee Application
Appendices
Index
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