Brad Seligman

Impact Fund
June, 2012
Presentation Overview
Class Action Basics
Federal versus California Class Actions
Good Old Days Are Here Again!
Avoiding Federal Court
Do You Really Need A Class Action?
What is your goal?
Alternatives: government and private
defendants
Maybe you have no choice
Dark Side of Class Actions
What a class gets you
Federal Rule 23 and California CCP 382 and
Cal. Rules of Court 3.760 et seq.
Numerosity
Commonality
Typicality
Adequacy
Injunctive and damages actions
Rule 23(b)(2) & (3)
Role of Merits
Commonality
Damages Actions
More bad News: Concepcion v. AT&T
Life In the Scalia-Mart Universe
Only policy challenged is decentralized
discretion
Policy against discrimination
Thousands of decision-makers, a multitude of
jobs, variety of regional policies that all differed,
1.5 million class members
Injunctive Relief and back pay sought
Role of Merits at Class Cert
The Old Eisen Rule
Merits may necessarily overlap
No ruling on merits per se but how is
significant proof of policy of discrimination
different from liability standard?
No more bifurcated discovery?
Wal-Mart: Rule 23(a) Commonality
Standard
Common Question Insufficient
Need Common Answers

Common contention capable of
class wide resolution
Resolves an issue central to the
validity of each one of the claims
in one stroke.
Glue

Express Policy
Small Group Of Decision-Makers
Automatic/Computer-Based
Significant Proof of a general policy of
discrimination
How Much Glue?
Not entire claim(s)just
central issue
Compare 23(c)(4) and (b)(3)
Limiting scope of case to
emphasize common issues

Not Enough
Glue?
Significant Proof of General Policy of
Discrimination
In absence of Express Policy: Alternative Route To
Commonality
What Is Significant Proof? Statistics, anecdotes,
social science
Limited to excessively discretionary decision-
making?

Or will judges take cue from
Supreme Court evidence
hostility to class actions?
OR
Concepcion v. AT&T

Confine it to its facts?
Just very large
national challenges to
decentralized
discretionary
decision-making?
Distinguishing Wal-Mart Commonality
Non-intent cases
Narrower scope
Common policies
Injunctive relief only cases

Advisory Note and Old Rule
New RuleIndivisible Injunctive Only?
Maybe Incidental Damages?
Punitive Damages? Costco
9
th
Circuit Hilao approach
Substantive Title VII right to individual defense
Limited to class member damages?
Other statistical approaches?
Does Defendant Have a Due Process Right to
Challenge Each Class Members Claim?
Public policy in favor of
class actions
Unique historical
evolution: the 19 year gap
Similar language but
different meaning:
commonality
Commonality
Merits
Procedural advantages
Sav-On Drug Stores v. Superior Court
34 Cal. 4
th
319 (2004)
Class Action Public Policy
Liberal Reading of
Predominance
Endorsement of pattern &
practice theory
Damages Differences discounted
Mandate to be Procedurally
Innovative
Not the federal Rule 23(b)(3) standard
Comparative analysis:
common issues vs. individual issues
Comparative Analysis:
class case vs. individual cases
Individual damages or liability issues no bar
Ignores Wal-Mart
Re-affirms California commonality comparative
approach
Common means either common policy or
practice or common method of proof
Ignores court of appeal holding that
commonality absent if individual issues had to
be resolved for each class member
Linder v.Thrifty Stores (2000) endorses Eisen
Brinker affirms: no premature determination of
merits unless essential to class certification
Assume validity of plaintiffs theory of recovery:
only issue is whether it is amenable to class
proof.
Sav-On and Brinker Concurrence
Statistics, sampling, surveys, other expert
analysis
Pattern or practice burden
Waiting in Wings: Duran

Notice costs may be
shifted to defense
Double standard on
appeal
Injunctive relief before
class cert (CCP 527)
CCP 384cy pres
Avoiding Federal Court: The Basics
Federal Question Jurisdiction
Diversity Jurisdiction
CAFA
CAFA or Federal Claims
Bad local court
Venue selection
A good judge trumps all
Plead California claims
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