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. Presenting a live 90-minute webinar with interactive Q&A Using Class Action Trial Plans and Other Pretrial Filings to Influence Certification Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, NOVEMBER 10, 2015 Michael P. Daly, Drinker Biddle & Reath, Philadelphia Todd Jackson, Feinberg Jackson Worthman & Wasow, Oakland, Calif. Stephen A. Loney, Jr., Hogan Lovells, Philadelphia Adam W. Hansen, Nichols Kaster, Minneapolis
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A D A M H A N S E N
N I C H O L S K A S T E R , P L L P
CLASS ACTION TRIAL PLANS:
T O D D J A C K S O N
F E I N B E R G , J A C K S O N , W O R T H M A N
& W A S O W , L L P
Other contributors include Barry Goldstein of Goldstein, Borgen, Dardarian & Ho, Katherine M. Kimpel
of Sanford Heisler Kimpel, LLP, and Anna P. Prakash of Nichols Kaster, PLLP.
Strategic Use During Certification, Decertification,
Summary Judgment, Discovery and Trial
I. PRE-FILING CHECKLIST
I. PRE-FILING CHECKLIST
Identify core claims and core proof needed
• Examine Claims: assess typicality
• Examine Proof: assess commonality (i.e., amount of common
proof)
7
I. PRE-FILING CHECKLIST
Map out corporate structure and interrelations
• Work with clients to outline smaller scale corporate structures,
with special attention to reporting structures and lines of
responsibility
• Explore large scale organizational structures, with focus on (1)
financial and legal relationships and (2) practical office and
geographical considerations
• Confirm the legal entity paying the client – check the check!
8
I. PRE-FILING CHECKLIST
Identify and define class as clearly as possible
• Class members: assess ascertainability
• Definition: avoid failsafe class
• Scope: be flexible, realistic and (sometimes) conservative
9
I. PRE-FILING CHECKLIST
Venue & Jurisdiction
• Consider the Class Action Fairness Act
• Consider Arbitration Issues
10
I. PRE-FILING CHECKLIST
Class Members as Witnesses
• Identify scope of available witnesses
• Identify needed number to prove up case and start to consider
selection variables for arguments about representivity at
certification and trial (i.e., geographic location, job position,
time period, etc.)
• Consider whether use of Equal Pay Act in gender
discrimination cases can assist in this process
11
I. PRE-FILING CHECKLIST
Defendants and their Agents as Witnesses
• Identify PMKs/30b6 witnesses and key decision makers
• Again, start to consider selection variables for arguments about
representivity at certification and trial (i.e., knowledge over
practices affecting all class members vs. some, knowledge for
entire class period vs. portion, etc.)
12
I. PRE-FILING CHECKLIST
Documents, Systems, and Data
• Review how defendant is organized (i.e., locations, hierarchy,
central decisionmaking, etc.) for purposes of necessary
discovery requests
• If possible, identify common systems and places where
systems differ (SAP, POS, and payroll systems, HR
documents, written policies, and periods of implementation,
etc.)
13
I. PRE-FILING CHECKLIST
Experts and Damages
• Think about predominance
• What is your theory of damages and does it apply to everyone?
• What do you need to calculate damages (data, experts, etc.)?
• Consult expert if needed for purposes of filing
14
II. DISCOVERY CHECKLIST
15
II. DISCOVERY CHECKLIST
Shape discovery around your trial plan
• How can you reinforce common themes?
• What do you need to win certification?
• What will be decided prior to trial and what do you need to
make that happen?
• How do you want the proof to come in at trial and what do you
need to make that happen?
• Think about damages and predominance now, do not wait.
16
II. DISCOVERY CHECKLIST
Document Requests/Data/E-Docs
• Ask for what you need to sharpen your class definition
• Database with class information and key data fields (consider
identifiers vs names)
• What do you need for damages?
• Phrase in terms of common proof (i.e., the policy or policies in
place during class period pertaining to xyz action).
• 30(b)(6) tech/PMK on key systems
• Ascertaining class members/claims/damages within those
systems (may need consultant)
17
II. DISCOVERY CHECKLIST
• Experts (see Certification/Decertification Checklist below
for more details)
18
II. DISCOVERY CHECKLIST
Requests for Admission
• Narrow the issues for trial and also certification
• Admissions as to numerosity
• Admissions as to policy documents covering entire class
period
19
II. DISCOVERY CHECKLIST
Depositions
• Video – key trial planning and preparation in long class cases
• Defendants: question witnesses without injecting any divisions
of class or time period unless prompted
• Can testimony about “variations” be summarized by a
common theme?
• Plaintiffs: prep with common themes present
20
II. DISCOVERY CHECKLIST
Samples and Representivity
• Absent class members
• Collective members in FLSA litigation
• Try for a stipulation to avoid later trouble
• Cherry-picking vs random selection vs defense selection
• Class data – samples vs. production of all data
• Is the sample truly representative?
• Stipulation against arguing against representivity
21
II. DISCOVERY CHECKLIST
Statements and Class Members
• Draft early template for declarations at certification – avoid
cookie cutter declarations
• Consider reaching agreement on contact with putative class
members early.
22
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
23
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Organize the Proof
• Core documents that explain what can be decided on a class-
wide basis
• Core data that will be used on class-wide basis
• Declarations from class members
• Have assessments of declaration witnesses by multiple
decision makers
• Review declaration with witness on phone to ascertain
accuracy
24
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Experts
• Statistics
• Data experts
• Social science experts
• Industrial Organizational Psychologists
• Unconcious Bias/Implicit Bias
• Other Social Science Testimony
• Damages experts
• Survey experts
• Daubert issues
• Comcast issues
25
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Damages calculations
• Decide what methodology will work
• Running the full calculation vs. just saying you can
• Consider summary judgment
26
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
“Individualized Issues”
• Determine possible issues and necessary steps to try for class
• Expert analysis needed at class cert, if any
• Consider suggesting alternatives to decertification (i.e., special
master, issue class, etc.)
27
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Draft fully developed trial plan
• Full trial proof outline for each claim/defense
• Key claims and proof for each element, including witnesses
and documents
• Write out why those witnesses and documents speak to all
class members’ claims
• Decide expert’s role
• Decide bifurcation and carefully consider what to present/hold
back
28
III. CERTIFICATION/DECERTIFICATION
CHECKLIST
Share trial plan (or a portion) with court as an exhibit
• Consider a mock verdict form showing how questions are
answered on a classwide basis
• Consider written summary highlighting common proof and
common themes
29
IV. PRE-TRIAL CHECKLIST
30
IV. PRE-TRIAL CHECKLIST
What kind of trial is it?
• Is it a jury trial or a judge trial? Or both? Or arbitration too?
• Who are your witnesses talking to?
• What kind of appellate review will you be encountering?
31
IV. PRE-TRIAL CHECKLIST
Do you need to make changes to the trial plan?
• Make changes if necessary, but make them known
• Are there things you want to be teeing up for appeal?
32
IV. PRE-TRIAL CHECKLIST
How can you narrow the scope of trial through pre-trial
briefings?
• Motions in limine: not just for standard evidentiary disputes.
• Keep certification issues out; certification is legal, not factual
• But present proof in a manner consistent with certification
• Get the special verdict form and proposed jury instructions in
front of the judge as early as possible
• Communicate with the court and opposing counsel
33
IV. PRE-TRIAL CHECKLIST
Consider drafting key post-trial issues to see if that changes
trial plan
• Anticipate things that might come up during trial, e.g.:
• evidentiary disputes raised through examination
• JNOV
• How do you avoid judicial intervention? (e.g. controlling
excessive jury verdicts)
34
V. TRIAL CHECKLIST
35
V. TRIAL CHECKLIST
Verdict form
• Consistent with trial plan?
• Consistent with expert/damages methodology?
• Damages – option for individual determinations or class as a
legal entity?
36
V. TRIAL CHECKLIST
Proof
• What is the best way to get your common proof in?
• Assess which documents are vital to case in chief and what is
more likely simply rebuttal
• Where possible, reach agreement on documents to be
introduced and stipulate to admission
• Consider using demonstratives, summary exhibits, or special
presentation methods to help fact-finders understand and
remember key documents
37
V. TRIAL CHECKLIST
Plaintiff witnesses
• Who will be called?
• If representivity/samples not decided, try to reach agreement with defendant
• If randomized/representative, develop a plan for outreach
• If not randomized, research necessary geographic, job title, job level and experience considerations and identify witnesses to cover all if possible
• Consider letting defendant call whomever they want (within a reasonable number) to appeal-proof verdict
• Preparation! Preparation! Preparation! Be sure to work with Plaintiffs so they are comfortable hitting common class themes in response to a range of questions, friendly and hostile.
• Anticipate and disarm any potential factual landmines that might otherwise contribute to a motion to decertify. Again, preparation!
38
V. TRIAL CHECKLIST
Defense witnesses
• Assess who to call in your case in chief – it’s not just liability, it is also certification at stake.
• Assess who is necessary to introduce documents and where agreement with Defendants will vitiate need to call witnesses
• Assess who is likely to be unavailable and depose by video prior to trial.
• Assess whether a trial deposition is necessary on witnesses previously deposed, witnesses previously deposed as 30(b)(6)/PMK designees, and where not previously deposed
• Use each witness, even if called by the Defense, to build on your common themes and on other evidence relevant to certification (e.g. centralized decisionmaking, relevant policy application, etc.)
39
V. TRIAL CHECKLIST
Expert witnesses
• Assess whether necessary and when to put on
• Avoid surprises by making methodology and calculations
known well in advance of trial
• Use demonstratives to make more accessible to the jury
40
A D A M H A N S E N
N I C H O L S K A S T E R , P L L P
CLASS ACTION TRIAL PLANS:
T O D D J A C K S O N
L E W I S , F E I N B E R G , L E E
& J A C K S O N , P . C .
Strategic Use During Certification, Decertification,
Summary Judgment, Discovery and Trial
The Strategic Use of Pretrial Filings to Oppose Class Certification: Defendants’ Perspective
court abused its discretion by … not conducting any kind of analysis or
discussion regarding how it would administer the trial.”)
Moving to Require a Trial Plan
62
• Several appellate courts have recommended that plaintiffs (or
that trial courts encourage them to file) file formal “trial plans”:
• Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) (“[T]he
proposal of a workable trial plan will often go a long way toward
demonstrating that manageability concerns do not excessively
undermine the superiority of the class action vehicle. We therefore
recommend that district courts make it a usual practice to direct
plaintiffs to present feasible trial plans, which should include
proposed jury instructions, as early as practicable….”)
• Wachtel ex rel. Jesse v. Guardian Life Ins. Co. of Am., 453 F.3d 179,
186 n.7 (3d Cir. 2006) (“the pre-certification presentation of the
aforementioned trial plans represents an advisable practice within
the class action arena.")
Moving to Require a Trial Plan
63
• But courts have not held that a separate “trial plan” is required.
Rather, many expect that Plaintiffs will address manageability in
their class certification motions:
• Vega v. T-Mobile USA, Inc., 564 F.3d 1256 (11th Cir. 2009) (“We do
not mean to say that submission of a trial plan by the plaintiff is
necessarily a prerequisite, as a matter of law, … in every case.”)
• Feder v. Elec. Data Sys. Corp., 429 F.3d 125 (5th Cir. 2005) (“We did
not hold in Robinson … that the submission of a trial plan was a
prerequisite….”)
• Chamberlan v. Ford Motor Co., 402 F.3d 952, 961 n.4 (9th Cir. 2005)
(“We decline Ford’s suggestion that the district court’s failure to
adopt a trial plan or to articulate how the class action would be
tried was an abuse of discretion.”)
When to Seek a Trial Plan EA
RLY
? Prior to certification:
Unlikely to be approved
Any advantage can also be realized by targeted early discovery planning.
THE
NO
RM
Fold it into certification process:
This is what the courts expect – most likely to be approved.
LATE
R
Post-certification:
If class certified without plan, consider moving post-certification to set up motion to de-certify or put tighter parameters around further proceedings
64
Moving to Require a Trial Plan
65
PROS:
• Will educate Court about the need
for a trial plan
• Expose gaps in Plaintiff’s inability
to propose a manageable trial plan
• Can make this request in opposition
to a motion to certify class or in
support of a motion to decertify
class
• Force Plaintiffs to define and
narrow the scope of post-
certification arguments and
discovery
CONS:
• Will educate Plaintiff about the
need for a trial plan and motivate
a disorganized plaintiff to get
their ducks in a row
• Will give Plaintiff more pages
with which to brief this and other
Rule 23 prerequisites
Responding to a Certification Motion
66
• Be methodical. Identify every “issue that is central to the
validity of each one of the claims” and demonstrate that
classwide proceeding will not “generate common answers apt to
drive the resolution of the litigation.” Dukes, 131 S. Ct. at 2551.
• That means identifying every essential element of every claim,
every defense, and every counterclaim, and analyzing what law
applies to them and what facts would prove or disprove them.
Strategy in Response to Certification Motion: Poking Holes in the Trial Plan
Common trial plan pitfalls to highlight in complex cases:
Lack of specificity -- trial plan simply regurgitates class
certification arguments without specifying HOW each element
will be proved at trial. See MP Vista, Inc. v. Motiva Enter.,