Defeating Class Actions Post-Certification: Procedural and Substantive Strategies Pursuing Rule 23(f) Appeals, Decertification, Reconsideration, Summary Judgment and Other Post-Certification Motions Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. TUESDAY, JANUARY 27, 2015 Presenting a live 90-minute webinar with interactive Q&A David J. Bird, Partner, Reed Smith, Pittsburgh Jonathan R. (Jon) Chally, Partner, King & Spalding, Atlanta Kevin S. Ranlett, Partner, Mayer Brown, Washington, D.C.
Transcript
Defeating Class Actions Post-Certification: Procedural and Substantive Strategies Pursuing Rule 23(f) Appeals, Decertification, Reconsideration, Summary Judgment and Other Post-Certification Motions
• The court relied on a new argument or rationale introduced sua sponte, at oral argument, or in Plaintiff’s reply brief, and Defendant did not have adequate opportunity to address it.
• The court ruled on an evidentiary issue or collateral motion that affected the certification decision.
• To better frame the issues for appeal.
• Courts rarely grant motions for reconsideration; however, there are a few defendants who have been successful.
• Janes v. Triborough Bridge & Tunnel Auth., 889 F. Supp. 2d 462, 464 (S.D.N.Y. 2012);
• Wilson v. Seven Seventeen HB Philadelphia Corp. No. 2, No. CIV. A. 99-1729, 2001 WL 484193 (E.D. Pa. Mar. 7, 2001).
• Some courts are less resistant to a reconsideration motion in the class action context. Slaven v. BP Am., Inc., 190 F.R.D. 649, 651-52 (C.D. Cal. 2000) (in the class-action context, “the usual reluctance to entertain motions for reconsideration simply does not apply”).
7
Fed. R. Civ. P. 23(f)
• “A court of appeals may permit an appeal from an order
granting or denying class-action certification under this rule if a
petition for permission to appeal is filed with the circuit clerk
within 14 days after the order is entered. An appeal does not
stay proceedings in the district court unless the district judge or
the court of appeals so orders.”
8
What Types of Orders are Appealable Under Rule 23(f)?
• Orders granting or denying class certification are appealable
under 23(f).
• Several circuit courts have held that other types of orders are
appealable under 23(f), too.
9
What Types of Orders are Appealable Under Rule 23(f)?
• (1) An order granting or denying an amended motion for
class certification: In McReynolds v. Merrill Lynch, Pierce,
• Prado-Steiman ex rel. Prado v. Bush, 221 F.3d 1266, 1267
(11th Cir. 2000)
22
Conclusion
• Both motions for reconsideration and 23(f) petitions are rarely
granted.
• A motion for reconsideration may be worth pursuing where
there has been a discovery of new evidence or an intervening
change in controlling law.
• If you feel that the district court judge made an error of law, a
23(f) petition probably better than having the same judge re-
consider the motion on the same evidence.
23
Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; Mayer Brown JSM, a Hong Kong partnership, and its associated entities in Asia; and Tauil & Chequer Advogados, a Brazilian law partnership with which Mayer Brown is associated. "Mayer Brown" and the Mayer Brown logo are the trademarks of the Mayer Brown Practices in their respective jurisdictions.
Litigating class actions: Post-certification motion practice
Strafford Webinar January 27, 2015
Kevin S. Ranlett +1 202 263 3217 [email protected] Blog: classdefenseblog.com
Key steps after class certification
Review of class certification order
Motion for summary judgment
Motion to decertify class
Other pretrial motions (e.g., bifurcation, motions in limine)
Trial
25
Motions for summary judgment
•Enormous impact on settlement potential
•For defendants, can help set up a later motion to decertify the class
26
Motions for summary judgment
•Partial or total summary judgment?
•Named plaintiffs only or classwide?
•When to file?
27
Post-certification discovery
• Often bifurcated into class certification and merits discovery.
• Standard to get discovery from absent class members:
– No improper motive
– Necessity
– Burden on absent class member / need for counsel
See, e.g., Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999 (7th Cir. 1971).
28
Motion to compel trial plan
• Important precursor to motion to decertify class
•Best argument against class certification is that the case can’t be tried
29
Motion to decertify class
• Right to file: “Even after a certification order is entered, the judge remains free to modify it in light of subsequent developments in the litigation.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982); see also Fed. R. Civ. P. 23(c)(1)(C) Advisory Committee Note (2003) (“Decertification may be warranted after further proceedings”).
• Standard: Same “rigorous analysis” applies to motion to decertify as to initial motion to certify. See, e.g., Bouaphakeo v. Tyson Foods, Inc., 765 F.3d 791, 797 (8th Cir. 2014); Marlo v. United Parcel Serv., Inc., 639 F.3d 942, 946 (9th Cir. 2011).
30
Motion to decertify class
When does it work?
New judge New complaint Plaintiffs can’t fulfill promises made in class certification motion Class notice problems
31
Motion to decertify class
Can I appeal?
• Fed. R. Civ. P. 23(f): “A court of appeals may permit an appeal from an order granting or denying class-action certification....”
• Order on motion to decertify must “materially alter a previous order granting or denying class certification.” Driver v. AppleIllinois LLC, 739 F.3d 1073 (7th Cir. 2014); see also, e.g., Gutierrez v. Johnson & Johnson, 523 F.3d 187, 193 (3d Cir. 2008); Carpenter v. Boeing Co., 456 F.3d 1183, 1191 (10th Cir. 2006).
Source: Galanter & Frozenza, ‘A Grin Without A Cat’: Civil Trials in the Federal Courts
36
Moldy Washer Cases
• Heavy hitters
― Lieff Cabraser for Plaintiffs
― Wheeler Trigg for Whirlpool
• Claims that had proven difficult to certify
― Breach of warranty
― Negligent design
― Negligent failure to warn
• Discovery revealed individualized experiences
― Different models/designs
― Different use and care practices
― Different biofilm growth
37
Class Certification
• District court certified a liability class
All persons who are current residents of Ohio and purchased a Washing Machine (defined as Whirlpool Duet®, Duet HT®, and Duet Sport® Front-Loading Automatic Washers) for primarily personal, family or household purposes, and not for resale, in Ohio . . . .
• 23(f) petition granted
• District court affirmed
38
Class Certification
• Interim Comcast decision
“[M]odel purporting to serve as evidence of damages . . . must measure only those damages attributable to that theory. If the model does not even attempt to do that, it cannot possibly establish that damages are susceptible of measurement across the entire class for purposes of Rule 23(b)(3).”
39
Class Certification
• Supreme Court steps in (sort of).
― Recent precedent beyond Comcast
― Prognosticators
• The two “GVRs”
40
Class Certification
• Whirlpool’s request for remand to district court ….
― Denied.
• 6th Circuit Round Two
― Amgen?
41
6th Circuit Affirms Again
• “No matter how individualized the issue of damages may be,” determination of damages ‘may be reserved for individual treatment with the question of liability tried as a class action . . . .’”
• 6th Circuit Says Whirlpool Should “welcome class certification”
“If Whirlpool can prove that most class members have not experienced a mold problem and that it adequately warned consumers of any propensity for mold growth in the Duets, then Whirlpool should welcome class certification. By proving that the Duets are not defectively designed and that no warnings were needed (or if they were, that adequate warnings were issued to consumers), Whirlpool can obtain a judgment binding all class members who do not opt out of the class.”
• Related Seventh Circuit case involving Sears “Sears argued that most members of the plaintiff class had not experienced any mold problem. But if so, we pointed out, that was an argument not for refusing to certify the class but for certifying it and then entering a judgment that would largely exonerate Sears—a course it should welcome, as all class members who did not opt out of the class action would be bound by the judgment.”
Butler v. Sears, Roebuck & Co., Nos. 11-8029, 12-8030 (7th Cir., Aug. 22, 2013)
43
Next steps
• Motion to modify class definition
― Acknowledging variations
― Granted
• Related motion to decertify
― Key admissions in discovery
― Denied
• Summary judgment motions
― Failure to warn claim dismissed
44
Trial
• Yet another motion to decertify
― Relying on trial evidence demonstrating individualized circumstances and inadequacy
― Denied
• Motion for judgment as a matter of law
• Jury verdict
― No defect
45
No, really. Who won?
• “Vindication of consumer class actions”
― Forbes.
• “[S]howed how liability can be litigated on a classwide basis.”
― Plaintiffs’ counsel
46
No, really. Who won?
• “[C]alls into question the wisdom of allowing the product defect issue to go forward on a class wide basis in the first place”
― Classactionblawg.
• “[C]omplete rejection of the class-action lawyers attempt to enrich themselves on the backs of consumers who have never had a complaint about their front-load washing machines.”
