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: 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 , Questions to think about / Writing assignment for Group 6 –Pp. 816 Q5 –Briefly summarize Price –Pp. 818ff. Qs 1-2 Optional: Glannon Chapters (Joinder) –Class Actions (see next slide)

3 Class Actions Assignment FRCP 23 Yeazell , 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? –Enrom manipulated 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 Enrom on behalf of all shareholders who purchased stock during the period when the information was being withheld be appropriate? –RhinePool supplied 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 RhinePool on behalf of all hemophiliacs who contracted AIDS as a result of contaminated blood produced by RhinePool be appropriate?

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 Peli Popvich 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)