Klonoff - Class Actions and Other Multi-Party Litigation in a Nutshell

___________

JESSE H. CHOPER

Professor of Law and Dean Emeritus,
University of California, Berkeley

JOSHUA DRESSLER

Professor of Law, Michael E. Moritz College of Law,
The Ohio State University

YALE KAMISAR

Professor of Law Emeritus, University of San Diego
Professor of Law Emeritus, University of Michigan

MARY KAY KANE

Professor of Law, Chancellor and Dean Emeritus,
University of California,
Hastings College of the Law

LARRY D. KRAMER

President, William and Flora Hewlett Foundation

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

University Professor, New York University
Formerly Bruce Bromley Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, Pepperdine University
Professor of Law Emeritus, University of California, Los Angeles

A. BENJAMIN SPENCER

Professor of Law,
Washington & Lee University School of Law

JAMES J. WHITE

Professor of Law, University of Michigan

Fourth Edition

By

ROBERT H. KLONOFF

Dean and Professor of Law
Lewis & Clark Law School

Mat #40899984

Thomson Reuters created this publication to provide you with accurate and authoritative information concerning the subject matter covered. However, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. Thomson Reuters does not render legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.

Nutshell Series, In a Nutshell and the Nutshell Logo are trademarks registered in the U.S. Patent and Trademark Office.

West, a Thomson business, 1999, 2004, 2007

2012 Thomson Reuters

610 Opperman Drive
St. Paul, MN 55123
18003139378

Printed in the United States of America

ISBN: 9780314910974

To my wife, children, and parents

___________

This text addresses class actions and other devices for litigating multi-party cases. It is intended for students taking courses in civil procedure, complex litigation, class actions, and mass torts. It is also designed for use by practicing lawyers who are involved in litigating multi-party cases. This edition follows the same approach and structure as the first edition (1999), second edition (2004), and third edition (2007). Many important decisions have been rendered since 2007. In addition to dozens of decisions by the federal circuits, the Supreme Court has been very active in the class action arena in recent years. Landmark cases include WalMart Stores, Inc. v. Dukes , 131 S. Ct. 2541 (2011); AT & T Mobility LLC v. Concepcion , 131 S. Ct. 1740 (2011); Smith v . Bayer Corp ., 131 S. Ct. 2368 (2011); Erica P. John Fund, Inc. v. Halliburton Co. , 131 S. Ct. 2179 (2011); and Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co ., 130 S. Ct. 1431 (2010). Among many other changes and updates, this latest edition discusses the major new Supreme Court and federal circuit cases.

This text provides citations for various propositions. It is not a reference book, however, and no attempt is made to provide case citations or other authority for every proposition. References to denials VI of certiorari (for U.S. Supreme Court cases) are provided only for cases in which the denial occurred in 2010 or later.

This text includes both scholarly analysis and a practitioners perspective. In addition to teaching and writing about class actions, I currently serve as a member of the United States Judicial Conference Advisory Committee on Civil Rules and previously served as Associate Reporter for the American Law Institutes project, Principles of the Law of Aggregate Litigation (2010). I have prosecuted and defended more than 100 class actions as an attorney in private practice. I have also served as an expert witness in numerous class actions, both in federal and state court.

In addition to those whom I acknowledged in the first, second, and third editions, I would like to recognize the important contributions of my research assistants, Jacob Abbott, Eric Brickenstein, Eleanor Garretson, Virginia Griffin, Brittany Medlin, Ben Pepper, Matt Preusch, Meredith Price, and Gabby Richards. The statements and conclusions in this text are mine alone.

ROBERT H. KLONOFF

Portland, Oregon
September 2012

OUTLINE

___________

Fourth Edition

(a) PREREQUISITES. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

(2) there are questions of law or fact common to the class;

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

(4) the representative parties will fairly and adequately protect the interests of the class.

(b) TYPES OF CLASS ACTIONS. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

(A) the class members interests in individually controlling the prosecution or defense of separate actions;

(B) the extent and nature of any litigation concerning the controversy already begun by or against class members;

(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

(D) the likely difficulties in managing a class action.

(c) CERTIFICATION ORDER; NOTICE TO CLASS MEMBERS; JUDGMENT; ISSUES CLASSES; SUBCLASSES.

(1) Certification Order.