Strategies In Class Action Engagement: The Class Certification Hearing

by Carlton Fields
Contact

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

The defense team must consider whether the company’s best interests are better served by seeking an evidentiary hearing on class certification or a legal hearing that will rely on the discovery record and briefing and argument by counsel. A legal hearing may be more appropriate when the company has a very strong discovery record and the issues are fairly clear cut. A full evidentiary hearing, however, may be necessary to demonstrate facts that contradict the plaintiffs’ bald assertion that core issues of liability could be determined with common proof.

In particular, an evidentiary hearing—at which plaintiffs’ evidence is subjected to a “rigorous analysis”—can provide an excellent opportunity to educate the court on the complexities of the proof that will be offered on the claims and defenses. It also may expose weaknesses in plaintiffs’ experts’ opinions. Further, it can demonstrate to the court the gravity of class certification in a way that a legal argument might not, and it can provide the court with assurance that it is giving the parties their day in court on the very consequential issue of class certification before deciding the motion. An evidentiary hearing may have the additional salutary benefit of showing the court quite graphically that the named plaintiffs are mere pawns, not independent representatives of absent class members.

Court must take the merits into consideration in determining whether the requirements for certifying a class are satisfied.[1] How much of the merits to emphasize will be a strategy decision. In Ford’s experience, convincing the trial court to consider the merits at the class certification stage is half the battle. Those courts that think mistakenly that they are not permitted to consider the merits or are not inclined to do so are far more likely to grant a boilerplate class certification motion. In cases where the company’s position on the merits is strong, counsel should not hesitate to delve into the merits at the class certification stage.

If the company requests and obtains an evidentiary hearing, inside counsel should insist that outside counsel treat it like a full-blown trial, because that is what it should be and because the appellate court will defer to the trial court’s findings of fact on the basis of this hearing. The company may rely in part on written discovery or depositions, but counsel should prepare to present the case against certification with live witnesses, demonstratives, and other exhibits, as in a bench trial on the merits.

Inside counsel should be present at the hearing. The defense team may need to make critical decisions on the fly about which witnesses will testify at the hearing and what they will address. Inside counsel will play a vital role in working with company witnesses or other officers or employees actively supporting the trial effort. It is also an important opportunity for inside counsel to gauge the court’s reaction to the case, the company, and outside counsel. Having the right lawyers arguing motions and trying the case is one of inside counsel’s most fundamental responsibilities, and the class certification hearing will be one of the best opportunities to evaluate the lineup of lawyers working on the case.

Our next, and final, post will discuss the company’s response to class certification.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Carlton Fields | Attorney Advertising

Written by:

Carlton Fields
Contact
more
less

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!