Professional Documents
Culture Documents
Pro Stuff
Parklane Hoisery v. Shore (Non-Mutual Offensive Issue Preclusion)
Second plaintiff may use the result of previous litigation as to an issue that Defendant lost on, if it is the same issue, that was litigated,
and actually decided on matter necessary to judgment.
Guedry v. Marino (Permissive Joinder, Severalability)- Soft Application
Deputies not rehired b/c spoke out against sherrif before his election and racial discrimination. Alleged activity effects each P, so
common legal ?s, even if some questions are not similar.
DirectTV v. Adrian (Permissive Joinder, Severalability)- Strict Application
DirectTV suing people for stealing transmissions. Allegations of similar staturoty violations do not satisfy same TOO requirement.
Iron Workers Local Union v. Phillip Morris (Compuslory Joinder)
Trust case brought saying Phillip Morris did some dodgy financial things. Courts dont evaluate reqs for comp. joinder rigidly, look at
practicality.
Malcom v. Natl Gypsum Co. (Consolidation)
600 consolidated asbestos cases in one District for discovery. Consolidation was inappropriate b/c it was too confusing and the cases
to disparate for the jury to keep track of. Concern of prejudicing defendants rights.
Land not allowed to have black people live on it. 1st suit decision upheld agreement. Court finds that this ruling d/n have preclusive
effect, because the 1st suit not adequate rep and thus not binding on the parties.
In re Rhone-Poulenc Rorer, Inc. (Certification Significance for Defendants)
Companys blood products infected hemophiliacs w/ AIDS. Posner decertified class b/c of overwhelming pressure to settle on
defendant despite history of victories in single trials.
o
(Contrast with EISEN- disallowing preliminary look at merits) (But this has diminished)
General Telephone Co. v. Falcon (Commonality/Typicality)
Mexican suing for promotion/hiring discrimination. No adequate rep where individual was hired but not promoted and is suing on
behalf of those unhired.
Dukes v. Wal-Mart I (Commonality/Typicality)
Current and former female Wal-Mart employees sued for discretionary discrimination by local supervisors. Not certified b/c
discretion leads to individual answers to claims, not common to whole class.
Phillips Petroleum Co. v. Shutts (23(b)(3) Opportunity to be Heard)
Natural Gas Co. owed royalties to 28000 respondents for a higher price being charged. In determining class, court found plaintiffs, to
be included in a (b)(3) class, must received notice and opportunity to be heard and participate in the litigation. Allow to opt-out.
Brown v. Ticor Title Ins. (23(b(1) and (2) and Monetary Damages)
Members of antitrust class action certified under b(1) and (2) who later attempted to bring dmages action based on the same facts were
not bound b/c due process required that class members be allowed to assert clams for damages)
Amchem Products, Inc. v. Windsor (Adequate Representation)
Asbestos settlement-only class certification failed because Claimants who have manifest injuries should not be represented or have
same counsel as those without manifest injuries. Also found as collusive, and that interclass conflicts create typicality problems. Lack
of common questions among Ps to create typical claimant. Thus no adequate representation.
Stephenson v. Dow Chemical Co. (Choice of Temporal Perspective- Es Post, backward-looking)
Vietnam vet developed cancer after settlement time limit had ended, disallowing him to recover. Applying an ex post analysis of
adequacy, the court found he was not bound by previous settlement, b/c he, not knowing of his potential injuries, was not adequately
represented (No SCOTUS precedential effect)
Uhl v. Thoroughbred and Telecommunications (Choice of Temporal Perspective- Ex Ante, forward-looking)
Class rep got certification for claim against company who was adding fiber optic cables to rail lines. The subclasses were of people
whod have the cable on their side of the land and those who wouldnt. They didnt know who would be in which group when class
was certified. Because rep d/n know which subclass shed eventually be in, she was adequate rep for both.
Cole v. GMC (Choice of Law affecting Predominance)
Airbags failed, nationwide class up for certification. All 50 states laws are implicated. The Plaintiffs presented only textual
similarities of different state laws. Variations among them defeated predominance, b/c individual questions of choice of law supersede
factual similarities.
In re Bridgestone/Firestone (Choice of Law Vested Rights application)
Nationwide class of tire consumers tried to frame issue as financial loss under contract theory to avoid COL problem. But, because
forum state applied vested interest, injury occurred at point of sale of tires, so all 50 states law implicated. Unmanageable, so
decertified.
In re Air Transportation Antitrust Litigation (23(b)(3) Manageability)
Price-fixing case found manageable despite difficulties with notice and large number of people. Notice concerns not prohibitive of
class actions, they just need to be reasonable efforts. Damage calculations that are time-consuming/tedious are not unmanageable if
calculation is mechanical/repetitive.
Hilao v. Estate of Marcos (23(b)(3) Manageability)
10,000 foreign nationals sued for crimes committed at lead of Philippine dictator under 23(b)(3) and the Alien Tort Claims Act. Used
statistics to create representative sample to create prediction of actual damages (cites Matthews v. Eldridge saying use of statistics no
violation of Due Process).
Klay v. Humana, Inc. (23(b)(3) Complete. Certification and Denial thereof)
Doctors suing HMOs for systematically underpaying bills. Raises federal (RICO) and state (contract) claims. Because racketeering
cant be proven on individual basis, it is ripe for certification (common questions law/fact). K claims had no common questions of
fact (though law was common). Class action was superior to joinder, consolidation, transfer and ind. trials.
Brown v. Ticor Title Insurance (23(b)(2) Damages Not Allowed)
Consumers suing for injunction and damages against title insurance company using (b)(2). Brown tried to opt-out an was not allowed.
This is violation of due process b/c where damages are in play, you must be afforded chance to opt-out.
Barnes v. American Tobacco Co. (23(b)(2) No medical monitoring under (b)(2))
Medical Monitoring sought under 23(b)(2). Medical Monitoring is not injunctive relief. Too individualized of defenses and facts of
each injury. Addiction highly personalized, as is need for MM, AOR defense, knowledge of plaintiff, etc.
Allison v. Citgo Petroleum Corp. (23(b)(2) damages claim must be incidental)
Civil Rights action was unsuitable for (b)(2) certification because monetary damages predominated the objective of the litigation
Wal-Mart Stores, Inc. v. Dukes (23(b)(2) damages claims barred)
Even back pay is now considered individualized relief, and not incidental to the injunctive relief. Effectively bars all but automatic,
statutory damages for (b)(2) actions.
Ortiz v. Fibreboard Corp. (23(b)(1)(B) Limited Fund Class Action)
Asbestos Cases, trying to establish a limited fund settlement for future claimants. Proposed future claimants do not have relationship
with attorneys. Substantial probability that claims would exhaust assets, resulting in bankruptcy, to establish limited fund.
In Re Simon II Litigation (23(b)(1)(B) Punitive Damages class rejected)
Certification of a punitive damages class against the Tobacco companies was decertified. Because punitive damages are necessarily
tied to compensatory damages per BMW v. Gore, State Farm and other cases, and thus would not be calculable with a defined
ascertained limit in class action setting. Postulated limited funds are not allowable.
Brown v. R.J. Reynolds Tobacco Co. (Issue Classes and Preclusion)
Extensive Tobacco Litigation in multiple phases. Question of whether the phases should have issue preclusive effect. So long as they
are actually adjudicated in their respective issue classes, they will be afforded issue preclusive effect if they are facts actually
decided by the jury.
In the Matter of Rhone-Poulenc Rorer (Issue Class, Reexamination)
Certified for negligence/common issues with later trials for individual liability. BUT individual trials involve individualized defenses,
such as comparative negligence, which necessitate reexamination of negligence.
In re Nassau County Strip Search Cases (Issue Class and Predominance Req.)
Nassau County strip searched everybody, regardless of crime. Liability was common issue. An issue class certification is allowable
regardless of whether claim as a whole satisfies predominance test. Certification of an issue class may be feasible regardless of
whether the whole class is certifiable under 23(b)(3)
Allen v. Intl Truck and Engine Corp (Mandatory and Opt-Out Issue Classes)
Former employees sued for racial discrimination damages and equitable relief. Class treatment of indivisible injunctive claims and
individal damages cases does not violate the 7th amendment. First trial as to injunctive relief, and issue preclusion for later trials
In re IPO Securities Litigation (Eisen Rule diminishes, Merits of Suit determined at Class Certification)
Securities class actions alleging fraudulent IPO issuance policies by major underwriters. Court determines that factual issues relevant
to Rule 23 must be resolved, even if they overlap with the merits.
BP oil spill affected shores in multiple states, and this is transfer order for multiple suits in federal district courts across the gulf.
Dispute among plaintiffs and Defendants as to which court to centralize in. ED of La chosen b/c a geographic center of injury and
experienced judge
In re Silicone Gel Breast Implants (MDL Transferring to avoid prejudice)
Defendants and Plaintiffs could not agree on California/Ohio for forum to transfer to. Court sends to Alabama, an unrelated forum
with an experienced MDL judge to avoid prejudice to either party.
DeLaventura v. Columbia Acorn Trust (MDL and Settlement)
Criticizes settlement culture fostered by MDL. Courts hold on to trial-ready cases to encourage settlement.
Matsushita Electric Co. v. Epstein (Full Faith and Credit Act, Applying States Preclusion Effect)
State Court settled claims that could not be brought in state court. De Class action derivative suit against MEI for buying subsidiary
for less than it was worth. Separate California action filed w/ federal claims. De class settled state and federal claims, allowed for
opt-out. California non-opt outs fired collateral attack claiming lack of JUX for fed claims and inadequate rep. SCOTUS upholds
settlement b/c De would have upheld it.
Smith v. Bayer (Preclusion of State by Federal Ct. decision)
1st Suit filed in WV state, then removed to Federal Court and put in Minnesota MDL. 2nd Suit, Smith, filed in WV and stayed there.
Fed. Ct. case was not certified, but this did not have preclusive effect on Smiths certification b/c it involved the state certification law,
not the Feds (even if textually similar)
In re Corrugated Container Antitrust Litigation (Protection of Judgment)
MDL Class Action alleging antitrust. Plaintiffs counsel files competing class action in SC State Court. State court was found to risk
impeding imminent settlement, thus injunction was proper in aid of JUX and necessary to protect imminent final judgment
In re Eagle-Picher Industries (Necessary in aid of JUX/Risk of inconsistency)
Asbestos Limited Fund class action conditionally certified, moves to enjoin ongoing state proceeding. Found as necessary in aid of
JUX b/c continued litigation threatens fund over which court has JUX. Also worried about inconsistent judgments. LIMITED FUND
IS LIKE A RES- can issue injunction to protect individual class members interests.
Carlough v. Amchem Products (Necessary in Aid of JUX)
Fed. Class Action settlement filed, then a state class action filed in WV, claiming future claimants in state are not bound, wants
separate class action. D. Ct. enjoins state action as necessary in aid of JUX b/c settlement is imminent and state action would be
disruptive, create confusion for class members.
Settlement of consumer finance class action where high risk of collusion among plaintiffs attorneys and defendant. Judge is
supposed to act as fiduciary for class at settlement and voluntary dismissal phase and here neglected that duty
Devlin v. Scardelletti (Who may seek appellate review of Class Settlement Approval per 23(e))
Benefits plan litigation. Petitioner requested to intervene in suit, but never moved to do so. He is nonetheless allowed to appeal b/c
the named class rep is not an adequate rep, naturally, if he wants to appeal. This treats the nonnamed class member a party to the
litigation, effectively (contrary to Hansberrry and Shutts). If you object, you can appeal.
Epstein v. MCA, Inc. (Epstein III) (Collateral Attacks on Class Settlements)
Second action filed alleging lack of adequate representation and questioning its preclusive effect. Both are factors in determining
validity of collateral attack. Three different standards are stated.
In re Prudential Ins. Company (Deterrence of Opt-Outs through Settlement Design)
Nationwide Class action, some plaintiffs opted out 2 of their 4 claims to sue on later. However, settlement provision included
injunction enjoining future claimants from bringing claims related to common nucleus of facts, thus practically destroying the opted
out claims. If theyd opted out all 4, they would not be parties and would not have been precluded
In re Inter-Op Hip Prostheses (Deterrence of Opt-Outs through Settlement Design)
MDL for faulty hip replacement mechanisms. Dickie Scruggs designs settlement including favored nation, liens on assets, walk out
provisions, etc. Some of the provisions are allowed, some arent. Settlement being so good its practically mandatory is representative
of how fair it is. Opt-out benefits being weak dont make it illusory.
Vioxx Settlement (Non-Class Settlement Walk Away Provision)
Terms were already agreed as to settlment. 85% walk away provision. To encourage to sign on, agreement had 100% attorneys
recommend deal to claimants and threaten to withdraw if they did not take it. Forced.
Burrow v. Arce (Fiduciary Duty of Plaintiffs Attorney)
Chemical Plant explosion. Mass contingency fee arrangements, lack of communication and threats of no recovery for those opposing
the counsel. An attorney who violates his fiduciary duty in the creation of an aggregate settlement will forfeit some or all of his fees,
to be determined by the court.
The Tax Authority v. Jackson Hewitt (Prohibition against Ex Ante Agreements for Non-Unanimous Consent)
Contract existed whereby all the members of the group had to abide by by the majoritys decision as to the aggregate settlement. K
was established beforehand. Found invalid. Attorney cannot get advance consent from clients to abide by majoritys decision about
merits of aggregate settlement.
In re Zyprexa Litigation (Court may adjust attorneys fees in Quasi-Class Actions)
Zyprexa caused injuries and pre-trial proceedings were consolidated by MDL Panel. Discovery and negotiations were handled by
special discovery master and special settlement masters. Pretrial settlement covering 8000 plaintiffs. Judge says This action is more
like a class action than individual action, and Id have power to award attorneys fees in a class action, so I should have that same
authority now.
i Commonalty
i Typicality
i Adequate representation
a Rule 23(b)(1)(A)-- Risks of incompatible standards of conduct
i Consider what the P's might ask for as relief if they proceed
independently
i If P's are successful in individual suits, would the D be able to
comply w/ all the adjudications are would some preclude others
(deferring money damages are not mutually exclusive)
a Rule 23(b)(1)(B)-- Limited Fund (when all parties seek recovery from
finite source of assets that will be exhausted before all expected claims are
satisfied)
i After Fibreboard, a D must be close to bankruptcy to establish a
limited fund
1 The Fibreboard court majority suggests that there must be a
substantial probability of bankruptcy
1 The Fibreboard court dissent suggests there must be a
significant risk that the total assets are going to fall well
below the value of the claims
i Applicable if P's proceeding individually would risk adjudication w/
respect to individual members of a class, which would as a practical
matter would:
1 Be dispositive of the interests of other members not parties to
the adjudication, or
1 Substantially impair or impede their ability to protect their
interests
i
Must demonstrate (not merely assert) substantial probability that
fund is inadequate to pay aggregate amount of all the claims
1 Figure out what the P's likely recovery will be
a Difficult to do if you havent had any prior cases to give
you a baseline to estimate damages (for example, an
immature tort)
i To help determine the limits of a fund, a judge could:
1 Look at settlements regarding this type of claim
that are not confidential
1 Have bellwether trials
a Difficult if the claims are unliquidated, like personal injury
tort claims
1 Figure out fund size available for satisfying claims
i Proposed distribution must be equitable among all class members
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Opt outs are not a good thing for P attorneys or D attorneys (see p.
72)
b Methods:
i Settlement provisions which enjoin the use of the common
nucleus of facts in the settlement (In re Prudential)
ii All assets of the defendant secured by a lien held in trust in
favor of settling parties
iii Objectors cannot be paid until lein expired
iv Favored Nation- any better settlements acquired later would
automatically up the provisions of the settling class
(discourages cherry picking)
v Walk away provisions: if we dont get some percentage
participation, no settlement
vi Prevention of opt outs from getting funds before the settling
class
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a Aggregate Settlements
b 2 or more clients claims are resolved by same lawyer
i Model Rule 1.8: to do so, need IC of each client. Disclosure to
them requires:
1 Total amount of aggregate settlement
2 Existence and nature of all claims and defenses involved
3 Details of every other clients participation in settlement,
their contribution and receipt
4 Total fees paid to lawyer and whether they will be paid
from settlement fund or ortherwise
5 Method by which costs are to be apportioned
c Quasi-Class Actions (p. 77)
d Basically an Aggregate settlement which occurs through MDL
e The nature of a quasi-class action is virtually undefinable and it is a
sort of shotgun from the hip approach by the judge to wholistically
look at litigation and determine whether it is so like class action that
their role becomes a fiduciary and supervisory one.
i Vioxx, Zyprexa Products
ii Judge has power to reduce fees- acts as fiduciary like a certified
class action judge would
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I.
Preclusion:
Full Faith and Credit generally requires every State to give to a judgment at
lest the preclusive effect that the judgment would be accorded in the State
that rendered it.
o Even if it is patently incorrect
o Except for judgments rendered w/o PJ or SMJ.
o Remedy is to appeal, not sue in another court.
Claim Preclusion (Res Judicata)
Issue Preclusion (Collateral
Estoppel)
Prevents litigation of a claim or
Prevents relitigation of issues that
defense that was or could have been were litigated, even if in the context
litigated in prior action
of a totally different claim
Elements
Elements
Final judgment
Same issue
On the merits
That was litigated and
Binds parties and those in
Actually and decided and
privity
Necessarily decided
In subsequent litigation arising
Cannot be relitigated by same
out of same transaction or
parties
occurrence
On all claims or defenses that
were or could have been
litigated
Claim Preclusion:
Requirements:
o Final Judgment
o On the merits
o Binds parties to action AND those in privity with the parties
o Claims must arise out of same Transaciton or Occurrence
o Must be claims that were or could have been litigated
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II.
Class Certification
Rule 23
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o Difficulties:
Judges forced to act as inquisitors (unfamiliar role)
Risk of collusion is high. Plaintiffs attorney has incentive to
bind claimants to get fees
Though manageability not an issue for settlement classes,
Court cannot ignore procedural protections of class
through 23(a) and (b).
o NOTES:
Many courts just to check the box analysis for settlement
class actions- very little in the way of factual findings.
Redish & Constinick (Arguments AGAINST Settlement Class
Actions):
Adversity is lacking, which is necessary in litigation, as
defined by Article III
o Thus settlement classes are inherently
unconstitutional
These cases are essentially ADR, or contracts, and this
isnt the courts role/purpose and isnt what it should be
engaged in.
Subclassing Problems
Class cohesiveness questions: Which fissures within the class call for
subclassing?
o Amchem: Class divided between holders of present and future claims
requires division into homogeneous cublcasses
With separate representation to eliminate conflict interests of
counsel
Ortiz says you cant have tons or ridiculous subclasses, but its
still very open ended.
o Temporal Perspective:
Choice of Temporal Perspective:
o Ex Post:
Determining whether the class was adequately represented after
the fact (Stephenson v. Dow Chemical Co.)
The ex post perspective is backward looking. From the
ex post point of view, we ask questions like: Who acted
badly and who acted well? Whose rights were violated?
o Deontological approaches to moral theory. Legal
Formalism
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o Ex Ante:
Determining whether the class is adequate prospectively- dont
know in which group the class rep is going to be in, so theyre
okay for both (Uhl v. TTT Inc.)
The ex ante perspective is forward looking. From this
pov we ask What affect will this rule have on the future?
Will decision of a case in this way produce good or bad
consequences?
o Consequentialist, utilitarian or welfarist theory.
Legal Realism.
23(b)(3) Opt- Out Classes
Questions of law or fact PREDOMINATE over any questions affecting only
individual class members
Class action is SUPERIOR to other available methods for fairly and
efficiently adjudicating the controversy
o Considerations in determining Predominance and Superiority
(consider ALL):
1. Class members interests in individually controlling the suit in
separate actions
Negative Value Suit. Low damages make individual
litigation cost-prohibitive, w/o the class suit, individual
adjudication probably wouldnt proceed
2. Extent and nature of any litigation concerning the controversy
already begun by or against class members
Generally:
o If there is substantial ongoing litigation, it shows
folks think individual efforts are superior
o Court should take account of which court is in best
position to adjudicate all the claims
o If court cant prevent multiple adjudications, it
may decide that cert. d/n accomplish efficiency
and fairness
o If named Ps are in parallel litigation, court may
have to assess the potential positive and negative
aspects of the circumstances
3. Desirability of concentrating the litigation of the claims in the
particular forum
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Bifurcation:
o The court might have an overall determination of facts applicable to
everyone and then then, if successful, the court might divide the group
into subclasses based on different substantive applicable laws.
EX: Class action for tort claim successful, but plaintiffs want
punitive damages. Punitive damages are different standars
among all the applicable state laws. Court could divide into
subclasses after general actionability and wrong-doing is
established.
Medical Monitoring:
Courts have split on what to do with these claims and have certified them
under a number of rules based on different theories:
o 23(b)(1)(A): Separate adjudications would impair plaintiffs ability to
pursue single uniform medical monitoring program
o 23(b)(a)(B): might be dispositive of the interests of the other members
not parties to the adjudication, or substantially impair/impede their
ability to protect that interest
o 23(b)(2): medical monitoring really constitutes injunctive relief
o ALL ABOVE DISFAVORED!
23(b)(3): Funds distributed for individualized medical
monitoring are essentially damages and thus should be handled
under (b)(3).
THIS IS THE SUPERIOR METHOD
23(b)(1)-(2) Mandatory Classes
Used for indivisible remedies
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o Party opposing the class, usually the defendant, has acted or refused to
act on grounds generally applicable to the class thereby making
appropriate final injunctive relief with respect to the class as a whole
Generally for equitable relief, monetary damages essentially
barred.
Injunctive, Declaratory Relief, Restitution
No predominance or superiority requirements, but the
class claims must be cohesive (and remember Dukes has
raised the pleading standard of commonality as a pre-req)
o The members of a (b)(2) class are generally bound
together through preexisting or continuing legal
relatoinsihps or by some significant common trait
such as race or gener (Barnes fn. 18)
o Money damages are not allowed as a significant objective in a 23(b)
(2) class
Ostensibly allowed damages under (b)(2):
Flow automatically from the injunction
Easily calculated
(b)(2) certification is proper if primary objective is to obtain
injunctive relief
Money damages dominant when their presences suggest
that procedural safeguards
As punitive damages and compensatory damages require
individualized hearings on independent factual issues, they are
inappropriate for a (b)(2)
Punitive damages are now tied to compensatory
damages- therefore cannot be done as a class if
compensatory damages are individualized.
They may make individualized claims more
economically viable anyway, so as to mitigate the need
for a class action
o HYBRID:
Certify the injunctive relief under 23(b)(2) and then do the
money damages under 23(b)(3)
Allison v. Citgo rejected this possibility, but it may be
considered by other courts.
23(b)(1)(B) Limited Fund Classes
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o Mass Actions
Defendant may remove Mass Actions to federal court (not just
class actions)
Civil actions in which 100+ claimants are joined
Each plaintiff must meet the $75K+ AIC requirement
o D/N Include Cases where:
Claims arise in filing state and injuries were
suffered in that state or contiguous state
Defendant joined the claims
Claims are asserted on behalf of public
pursuant to state statute
Claims have been consolidated solely for
pretrial proceeding
o If defendant removes Mass Action, no MDL
treatment unless majority of plaintiffs request it
Once everything is in same forum, can move to
consolidate cases
Transfer per 1404, 1406 and consolidate under Rule 42
We still have overlapping class actions after CAFA.
o There are exceptions to CAFA, there may not be complete diversity,
etc.
o Defendant may also want to stay in state court.
Defendant could see whether there are multiple cases going on
and decide where theyd rather be. They can effectively shop
around for the best forum
Multidistrict Litigation Act (MDL)
Created Judicial Panel on Multidistrict Litigation (MDL Panel)
o Coordinates related lawsuits within Federal Judicial System
o Rule:
When civil actions involving one or more common questions of
fact are pending in different districts, such actions may be
transferred to any district for coordinated and consolidated
pretrial proceedings
o Requirements for Transfer:
Civil Actions involve one or more common questions of fact
Pending in different districts
Convenience of parties and witnesses recognized
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use All Writs Act (28 USC 1651) to provide the positive
authority for fed courts to issue injunctions of state court
proceedings
o Smith v. Bayer (Issue Preclusion, Relitigation Exception):
First, the issue presented in the state court was not identical to
the one decided in the federal tribunal.
And second, the plaintiff in the state court did not have the
requisite connection to the federal suit to be bound by the
District Courts judgment.
Issue Preclusion:
o Valid Final Judgment on the merits
o Same issue in Case 2 as Case 1 (not just similar
facts, this is where Bayer fails)
o Issue must be essential to judgment
o IP can only be asserted against one who was party
to Case 1, or in privity (also lacking in Bayer)
Types of Relationships that Bind NON-Parties:
o Successive Interests in Property (in priviy)
o Nonparty controls litigation in Case 1 (somehow
manages conduct of litigation, has direct
financial/proprietary interest in litigation)
o Nonparty represented by party in Case 1
Class action, fiduciary action, etc.
Anti-Suit Injunction Act and All-Writs Act
2283: Federal Court may not grant an injunction upon state court
proceedings UNLESS
o (1) Expressly Authorized by Congress
o (2) Where in necessary aid of the Federal Courts JUX
State case removed to federal court and state court refuses to
relinquish JUX
And where a fed court first acquires JUX ofver a case involving
the dispositin of real property
If Fed. Ct. has JUX in Rem or quasi in rem, they can
enjoin other courts from hearing cases from hearing the
matter.
D/N apply to in personam JUX
Need res in form of limited fund or be very close to final
judgment (imminent) (In re Eagle-Picher)
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5th Cir. finds that injunction was proper under Necessary in aid of
jurisdiction exception: South Carolina will challenge federal jurisdiction
by impeding the progress of federal case.
Protection of Judgment: Cases have settled; injunction necessary to
protect imminent final judgment.
No final judgment in South Carolina. Final judgment is imminent
in the federal case.
GM Trucks only got to certification. Here S.C. may impede federal case,
undercut likelihood of settlement.
o In re Joint East. & So. District Asbestos Litig. (In re Eagle-Picher Industries)
(E.D.N.Y. 1990):
Asbestos limited fund class action conditionally certified; moves to enjoin
ongoing state proceedings.
Judge Weinstein enjoins all ongoing state litigation under necessary in aid
of jurisdiction exemption:
Necessary because continued litigation threatens fund, over which
court has jurisdiction, making it difficult to negotiate equitable
settlement in limited fund cases. Prevents depletion of fund.
o Also worried about inconsistent judgments.
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b. Class action litigator acts like private attorney general. Trying to cover what
regulation cannot.
c. Settlements Resulting in Loss to Class Members: The court may approve a
proposed settlement under which any class member is obligated to pay sums to
class counsel that would result in a net loss to the class member only if the court
makes a written finding that nonmonetary benefits to the class member
substantially outweigh the monetary loss.
i. See Bank of Boston: Got $8 for class members, but class members liable
for attorneys fees.
d. Distribution Based on Geographic Location: 28 U.S.C. 1714: The court may
not approve a proposed settlement that provides for the payment of greater sums
to some class members than to others solely on the basis that the class members
are located closer geographically to the court.
e. Notice to Government Officials: 28 U.S.C. 1715(b): Not later than 10 days
after a proposed settlement of a class action is filed in court, each defendant that
is participating in the proposed settlement shall serve upon the appropriate State
official of each state in which a class member resides and the appropriate Federal
official, a notice of the proposed settlement.
i. Only happened in Wyndham.
1. Notice Must include
a. Complaint, notice of scheduled hearings, class notice,
terms of settlement and contemporaneous agreements made
between class counsel and defense counsel, any notice of
dismissal, names of the class members residing in state
officials state or reasonable estimate of number of them
and proportion of claims, and any judicial opinion relating
to these claims
f. Bull Rubensteins new mechanisms for review at the fairness hearing:
i. Devils Advocate: Court appoints devils advocate to argue against
reasonableness of settlement, recreating adversarial environment.
ii. Bonds: Parties settling must post bond w/ court; bond used to pay
objectors fees.
iii. Labels: public agency could require that class action settlements be
labeled with a simple chart
iv. Trademarks: Could register a certification mark similar to Good
Housekeeping seal of approval.
1. There is a decline in adversarial litigation. Role of the judge is
supposed to be impartial decider. Judges becoming managers of
litigation.
g. How can objectors win, if they dont have access to discovery.
i. Need to intervene if you want discovery on the issues. Dublin.
ii. Public Citizen: Left wing, nonprofit. Advocates on behalf of consumers.
At settlement:
o Judge is supposed to act as fiduciary for class at settlement and
voluntary dismissal phase (Reynolds)
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Objecting
o Rule 23(e)(5)- permits objections to be withdrawn only with courts
approval
o Rule 23(e)(3)- requires parties seeking approval of settlement to
identify any agreement made in connection w/ proposed settlement
Designed to foster transparency of special deals made with
those who try to hold up settlements
Devlin curtails these powers
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and determine whether it is so like class action that their role becomes a
fiduciary and supervisory one.
o Vioxx, Zyprexa Products
o Judge has power to reduce fees- acts as fiduciary like a certified class
action judge would
Bellwether Trials
To determine a sort of standard for what a case is worth, what payment
should be made, what the criteria for eligibility is, etc. it is common that the
counsel has vast experience in that type of litigation.
o If they dont, an individual case, or a couple of them, may lead to that
sort of information being developed.
o These are called bellwether trials.
Two Functions:
Exert some manner of preclusive effect vis--vis the
much larger number of untried, individual cases.
Exert no formal preclusive effect, but just inform in
rough manner the terms for the remaining cases
Figure out which laws are helpful/relevant
o Kind of like statistical sampling
o Which is kind of disfavored as trial by formula
MDL is for pre-trial, so how does it go about handling bellwether trials?
MDL Consolidation: if informative bellwether trials will advance resolution
of related civil claims, then which should be transferred?
o By injecting juries and fact-finding into MDL, bellwether trials assist
by providing opportunity for coordinating counsel to:
Organize the products of pretrial common discovery
Evaluate the strengths and weaknesses of their arguemtns and
evidence
Understand the risks and costs associated w/ litigation
Create trial packages.
Knowledge gained can precipitate global settlement
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