The National Trial Lawyers Trial Lawyers Summit Miami Beach, Florida

1. The National Trial Lawyers Trial Lawyers Summit Miami Beach, Florida Fighting the Class Action Battle: What Every Trial Lawyer Needs to Know About Filing the Class Certification Motion January 30, 2013 Adam J. Levitt Wolf Haldenstein Adler Freeman & Herz LLC (312) 984-0000 levitt@whafh.com Jonathan Shub Seeger Weiss LLP (215) 564-2300 jshub@seegerweiss.com

2. “The class action is one of the few legal remedies the small claimant has against those that command the status quo.” Justice William O. Douglas, Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 186 (1974) (dissenting in part) 2

3. “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.” Judge Richard A. Posner, Carnegie v. Household Int’l, Inc., 376 F.3d 656, 661 (7th Cir. 2004) 3

4. Investigating Viable Cases- Uniformity is the key Examples: Form Contracts Identical Product Designs Advertising Campaigns 4

5. Attempts to Ward off the Class Case Discussions of “No Widespread” Problems. Imprelis & Kryptonite Companies undertaking private settlements in an effort to ward off class litigation. Preemptive Strikes-Pre-Filing 5

6. Named Plaintiff “Pick Off” Motion to Compel Arbitration Attempts to Bifurcate Merits and Class Discovery Forcing an Early Class Certification Motion Requesting Class Member Discovery Defense Tactics Pre-Class Certification

7. Named Plaintiff “Pick Offs” Making an offer of judgment before class certification to moot the plaintiff’s claim. FCRP Rule 68(a) “Making an Offer; Judgment on an Accepted Offer. At least 14 days before the date set for trial, a party defending against a claim may serve on an opposing party an offer to allow judgment on specified terms, with the costs then accrued.” The party then has 14 days to accept the offer, if after 14 days and no acceptance, the offer is deemed rejected. The purpose of Rule 68 is to encourage settlement. 7

8. Motion to Compel/Stay Pending Arbitration • Properly written arbitration clauses may preclude class treatment in wake of the United States Supreme Court opinion in AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011). • Key element is whether arbitration would allow for vindication of claims if substantiated. • Issues remain with respect to procedural/substantive unconscionability.

9. Bifurcation of Discovery • A common weapon in class action defendants’ arsenals is the motion to “bifurcate” discovery, splitting the process into two phases: first, discovery as it relates to the elements of Federal Rule of Civil Procedure 23 and whether a class may be properly certified, and second, discovery as it relates to the “merits” of the class’ underlying claims. • Defendants often cite to the high cost of discovery related to class actions and the burdensome undertaking of conducting merits-based discovery at such an early phase of the litigation as compelling reasons to bifurcate. 9

10. Bifurcation of Discovery, cont. • Federal Judicial Center, Manual for Complex Litigation(4th ed. 2004): • “The court should ascertain what discovery on class questions is needed for a certification ruling and how to conduct it efficiently and economically. Consider also staying other discovery if resolution of the certification issue may obviate some or all further proceedings. Discovery may proceed concurrently if bifurcating class discovery from merits discovery would result in significant duplication of effort and expense to the parties.” Id.§11.213 (emphasis added). • “There is not always a bright line between the two. Courts have recognized that information about the nature of the claims on the merits and the proof that they require is important to deciding certification. Arbitrary insistence on the merits/class discovery distinction sometimes thwarts the informed judicial assessment that current class certification practice emphasizes.” Id. §21.14 (emphasis added). 10

11. Opposing Bifurcation • Arguments against Bifurcation: • The parties will never be able to agree on whether proposed discovery relates to “merits” or “class” issues resulting in satellite litigation. • Postponing merits discovery will delay resolution of the case and result in duplication of effort. • Standards for class certification dictate some consideration of the merits after Dukes. 11

12. Bifurcation after Wal-Mart Wal-Mart v. Dukes As the Wal-Mart v. Dukes decision made clear last year, when a court is conducting a “rigorous analysis” to ensure that the requirements of Rule 23 have been met, “[f]requently that ‘rigorous analysis will entail some overlaps with the merits of the plaintiff’s underlying claim.  That cannot be helped.  The class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.” 12

13. Forcing the Early Class Motion • Defendants Attempt to Enforce “As Soon As Practicable” Requirement of Rule 23(c)(1)(a) in an effort to limit the evidence presented. • The Rule states that, “At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.” • Some federal courts have local rules on this. • i.e. C.D.Cal. mandates filing of class certification motion within 90 days of the case’s commencement. See C.D. L.R. 23-3 13

14. Forcing the Early Class Motion, cont. • Plaintiff Must Accumulate Evidence of Certification After Wal-Mart • Stipulate to Order for Discovery Pre-Certification • Seek Relief From Local Order • Caveat: Fed. R. Civ. P. 56(b) allows for filing of merits summary judgment motions “at any time until 30 days after the close of all discovery” 14

15. Limiting Discovery of Class Members Under Federal Rules Cornn v. United Parcel Service, Inc., 2006 WL 2642540, *2 (N.D. Cal. Sep. 14, 2006) • “the burden on the defendant to justify discovery of absent class members by means of deposition is particularly heavy” (citing Baldwin & Flynn v. National Safety Associates, 149 F.R.D. 598, 600 (N.D. Cal. 1993)). • When unnamed class members sign declarations in support of or in opposition to class certification, the parties generally seek to depose some or all of them. • “Since the concept of the declarations is to present a representative sample of the evidence establishing class-wide conduct or a pattern and practice of non-compliance affecting a large group of employees, plaintiff’s counsel is generally advised to seek an order limiting the number of depositions to 10% of the number of declarations, either through a simple ex parte application or formal motion for protective order.” Michael D. Singer, “Pre-Certification Communication with Putative Class Members,” Forum (January/February 2008) at 13 15

16. Plaintiffs’Class Certification Discovery Plaintiffs must affirmatively demonstrate in their motion that they have satisfied Rule 23. The notion that it is a pleading standard is dead. Discovery program pre-class certification must be conducted with the Rule 23 requirements firmly in mind. Do not assume court will give plaintiffs the benefit of the doubt that plaintiffs have satisfied any Rule 23 provisions in the absence of admissible evidence. How much the court should consider the merits when deciding class certification is an open question after Walmart. Supreme Court may clarify the issue this term in the Comcast case. 16

17. Thank you Jonathan Shub Seeger Weiss LLP 1515 Market Street Philadelphia, PA 19102 (215) 564-2300 jshub@seegerweiss.com Adam J. Levitt Wolf Haldenstein Adler Freeman & Herz LLC 55 West Monroe Street Chicago, Illinois 60603 (312) 984-0000 levitt@whafh.com

18. The National Trial Lawyers Trial Lawyers Summit January 30, 2013 , Miami Beach, Florida Thank You! Adam J. Levitt Wolf Haldenstein Adler Freeman & Herz LLC (312) 984-0000 levitt@whafh.com Jonathan Shub Seeger Weiss LLP (215) 564-2300 jshub@seegerweiss.com