Jerome Ringler, of Ringler Kearney Alvarez LLP, is speaking this year on the topics of class actions and complex cases.
Concerning class actions, Mr. Ringler notes the following basic concepts:
- Choose a good class representative that doesn't bring along a lot of baggage [bankruptcies, criminal convictions, etc.]. I note that this is much easier said than done. Individuals willing to step forward and litigate a cause on behalf of a group often have, at minimum, interesting personality quirks that supply the fortitude to endure a class action.
- Decide where to file. Again, easier said than done. CAFA often dictates that a case may end up in federal court, whether you want to be there or not.
- Compared to individual party litigation, discovery may be limited to certification issues. Mr. Ringler notes, and I have also found, that there is often entanglement between merits issues and, in particular, commonality and typicality analysis.
- Mr. Ringler notes that Pioneer and Belaire-West supply the procedure for obtaining class member contact information. He notes that the process requires filing a motion and agreeing on a third-party administrator that will send out notices permitting the putative class members to opt-out of disclosure of their contact data. I think that this summary of the current state of the law is, at minimum, incomplete, and, arguably, inaccurate. Puerto and the recent Writers' Guild decision Alch (discussed here), both suggest in different ways that the class representative may have a right to obtain contact information and other class member data, irrespective of whether any putative class member objects.
- Watch out for client representation issues. What if you represent a putative class member at a deposition? Do you continue to represent that person until certification? You probably do, but be careful with this hot potato. Don't hand over communications - you may be waiving a privilege that you ought to make the Court determine.
This seminar lecture appears targeted at attorneys with limited experience in the area of class actions. If you are interested in learning about class action procedure, you will probably do better reading portions of treatises, major decisional authority, and then co-counseling class actions with more experienced class action litigators. I'm going to wrap this post up as my battery is dying.