Andrew Rink Jeld-Wen Steve Morrison NMRS Jim Irvin NMRS Rush Smith NMRS.

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Presentation transcript:

Andrew Rink Jeld-Wen Steve Morrison NMRS Jim Irvin NMRS Rush Smith NMRS

CERTIFICATION 26(a) (1)Numerosity (2)Commonality (3)Typicality (4)Adequacy 26(a) (1)Numerosity (2)Commonality (3)Typicality (4)Adequacy 26(b)(3) *Predominance Superior Method 26(b)(3) *Predominance Superior Method Dukes v. Wal-Mart Common questions & Common answers Rigorous analysis; may overlap merits Dukes v. Wal-Mart Common questions & Common answers Rigorous analysis; may overlap merits Pre-Certification Post-Certification Sufficiency of proof Ability to calculate damages Viability of claims Post-Certification Sufficiency of proof Ability to calculate damages Viability of claims *Recognizes if not decided pre-certification, not likely decided at all 2

CERTIFICATION Dukes v. Wal-Mart Common questions & Common answers Rigorous analysis; may overlap merits Dukes v. Wal-Mart Common questions & Common answers Rigorous analysis; may overlap merits Butler v. Sears (7th Circuit 2012) No mention of Dukes ; Cites Glazer Predominance = Efficiency Defer Injury, causation, damages Butler v. Sears (7th Circuit 2012) No mention of Dukes ; Cites Glazer Predominance = Efficiency Defer Injury, causation, damages Comcast (3 rd Circuit) – SCOTUS "Without resolving whether … evidence … susceptible to awarding damages on a class-wide basis” Comcast (3 rd Circuit) – SCOTUS "Without resolving whether … evidence … susceptible to awarding damages on a class-wide basis” Tait v. Bosch (C.D. Cal. 2012) Misuse Irrelevant to Design Defect Claims Defendants Offered No Evidence Tait v. Bosch (C.D. Cal. 2012) Misuse Irrelevant to Design Defect Claims Defendants Offered No Evidence Extent Daubert applies to class cert. Extent court must consider merits issues Extent individual adjudication of damages makes class cert inappropriate. Glazer v. Whirlpool (6th Circuit 2012) Cited Dukes, Accepted Pls.' Proof; Ignored Defense Evidence Glazer v. Whirlpool (6th Circuit 2012) Cited Dukes, Accepted Pls.' Proof; Ignored Defense Evidence Amgen (9th Circuit) – SCOTUS Must Plaintiffs prove materiality in order to obtain class certification? Amgen (9th Circuit) – SCOTUS Must Plaintiffs prove materiality in order to obtain class certification? Key Idea: Rigorous analysis cuts both ways; develop substantive record for class certification proceedings 3

Creating claims where none exist Risk of harm, but defect not yet manifest Rely on non-forum law ( Glazer & Tait ) Creating claims where none exist Risk of harm, but defect not yet manifest Rely on non-forum law ( Glazer & Tait ) "Creative" damages theories Premium price Benefit of the bargain "Creative" damages theories Premium price Benefit of the bargain Creating confusion about "injury" vs. "damages" No Injury Class Actions Hodgepodge of lawsForum Law 4

No Injury Class Actions Confusion about "injury" vs. "damage" "No injury" cert. granted "No injury" cert. denied Bifurcate: Certify Liability; Defer Damages Glazer & Butler “justifications” Sua sponte "premium price" theory. Defs should "welcome" possible win... Address “no injury” at damages phase Bifurcate: Certify Liability; Defer Damages Glazer & Butler “justifications” Sua sponte "premium price" theory. Defs should "welcome" possible win... Address “no injury” at damages phase Toyota Hybrid Brake Mktg (C.D. Cal. 2012) (same as Tait v. Bosch ) If, after certification, still need to filter out “no injury" class members, NO commonality or predominance. "Merely offering a creative damages theory does not establish the actual injury that is required to prevail on their product liability claims." Toyota Hybrid Brake Mktg (C.D. Cal. 2012) (same as Tait v. Bosch ) If, after certification, still need to filter out “no injury" class members, NO commonality or predominance. "Merely offering a creative damages theory does not establish the actual injury that is required to prevail on their product liability claims." * Comcast may clarify these issues. 5

CLASS ARBITRATION Does arbitration clause cover class action? Class action waivers Stolt-Nielson – Arbitration panel must interpret the contract, not impose policy. AT&T Mobility v. Conception – FAA preempts state law attempt to invalidate class waivers Sutter v. Oxford Health – "no civil action concerning any dispute arising under this Agreement shall be instituted before any court..." Italian Colors v. AmEx – SCOTUS review holding that waiver not enforceable if forfeits federal rights Ferney v. Dell (Mass. Sup. Ct.) – Cannot deprive plaintiffs of meaningful course of action Employment agreements get closer scrutiny. 6 Take aways: Expressly reference class action Provide method for resolving dispute.

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