Strategies In Class Action Engagement: Deposing The Named Plaintiff


This continues our series of blog posts on effective partnering between inside and outside counsel to defend against class action lawsuits.

Outside counsel must plan the depositions of the named class representative carefully. In some case, depending on the result of the preliminary internal investigation, counsel may wish to depose the named plaintiffs quickly, before their attorneys have had a chance to prepare them fully or refine their legal theories. At the depositions, counsel should explore the plaintiffs’ backgrounds and experiences to learn about their own involvement in other civil or criminal claims or charges and their experiences with products or services like those at issue in the litigation. In defending against a class action challenging the performance of a vehicle, Ford learned, for example, that the named representative consistently selected other vehicles made by Ford or other manufacturers, with full knowledge and acceptance of the performance traits at issue in the litigation, refuting their claims of ignorance of facts they insisted Ford should have disclosed.

In the deposition, outside counsel will want to focus on facts relevant to the adequacy of the class representatives and their counsel to serve as class fiduciaries and on individual issues important to the proof of all claims and defenses. Adequacy turns most importantly on whether the named plaintiffs and their counsel have any conflicts of interest with absent class members and on whether they are informed and committed to the prosecution of the claims of the class. [1] Both Ford and Carlton Fields have obtained admissions in deposition from class representatives that they seek only to get a recovery for themselves individually, and they have no knowledge about or interest in the claims of other class members; that they had special dealings with the defendant that no other class members had; that they were given inappropriate promises by class counsel about what special remuneration they might receive to serve as class representatives; that they never experienced the kind of transaction at issue in the case; and that their own circumstances were radically different in other important ways from those pleaded in the complaint on behalf of the class, something which, in and of itself, can make them inadequate representatives.

In the deposition, outside counsel will also want to probe every individual aspect of named plaintiffs’ claims and the defenses in order to create concrete examples of how individual issues predominate over common issues and why the parties simply cannot litigate the claims of absent class members using evidence from the named plaintiffs’ case. The goal is to help the court understand that even if the named plaintiffs can prove individual elements of their claims, such as injury or causation, they can do so only by proof that is highly specific to them.

For example, Carlton Fields has defended antitrust cases in which proof of alleged overcharges could not be shown on a common, classwide basis because the actual prices paid by individual putative class members or the prices that would have been paid by them absent the alleged conspiracy (the so-called “but-for prices”) were highly individualized determinations involving many factors peculiar to the specific transactions at issue. Exploring with the class representative the various factors that impact these core issues, and how commerce actually takes place in the marketplace, can be very helpful in demonstrating that proof for one will not constitute proof for all on the crucial liability question of impact and damages.

Our next post will discuss third-party depositions.

[1] See § 60A:21; Guarantee Ins. Agency Co. v. Mid-Continental Realty Corp., 57 F.R.D. 555, 566-67, 16 Fed. R. Serv. 2d 1148 (N.D. Ill. 1972) (stating that “[a]bsent any conflict between the interests of the representative and other purchasers, and absent any indication that the representative will not aggressively conduct the litigation, fair and adequate protection of the class may be assumed”). 

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