TreatiseAnswer Book

Class Actions and Mass Torts Answer Book 2015

 by Sean P Wajert
 
 Copyright: 2015

 Product Details >> 

Product Details

  • ISBN Number: 9781402422881
  • Page Count: 530
  • Number of Volumes: 1
  •  
  • The purchase of PLI titles may include Basic Upkeep Service, whereby supplements, replacement pages and new editions may be shipped to you immediately upon publication for a 30-day examination. This service is cancelable at any time.

Class Actions and Mass Torts Answer Book 2015 provides a comprehensive overview of the current law regulating when and where, and if, class actions can be brought in state and federal courts.

Walking through the process from initiation of the case to filing an appeal, Class Actions and Mass Torts Answer Book 2015 provides a detailed analysis of such areas as:

  • Class action prerequisites
  • Injunctive relief and damages classes
  • Absent class members
  • Discovery issues
  • Class certification hearings and procedures
  • Trial of a class action
  • Remedies, damages and fees, and
  • Settlement

Class Actions and Mass Torts Answer Book 2015 describes the additional issues that arise in multi-jurisdictional class actions and helps you understand the complex statute of limitations questions that are raised in cases with large numbers of plaintiffs. In addition, this new title describes the unique ethical and estoppel issues that can occur in these cases, the detailed removal provisions under CAFA and the unique procedural concerns that arise in mass tort cases.

Class Actions and Mass Torts Answer Book 2015 provides hundreds of case citations, including all the major federal Circuit Court cases and many district court and state cases.

  Table of Contents
  Introduction
Chapter 1: History and Overview
  • Q 1.1 : What is the theory of the class action?2
  • Q 1.2 : What is the history of the class action device?2
    • Q 1.2.1 : What was the practice under the old Equity Rules?3
    • Q 1.2.2 : What was the 1938 version of Rule 23?3
    • Q 1.2.3 : What was the 1966 version of Rule 23?4
  • Q 1.3 : How is the current Rule 23 structured?6
    • Q 1.3.1 : What does Rule 23(a) require?6
    • Q 1.3.2 : What does Rule 23(b) require?6
    • Q 1.3.3 : What does Rule 23(c ) require?7
    • Q 1.3.4 : What does Rule 23(d) require?7
    • Q 1.3.5 : What does Rule 23(e) require?7
    • Q 1.3.6 : What does Rule 23(f) require?8
    • Q 1.3.7 : What does Rule 23(g) require?8
    • Q 1.3.8 : What does Rule 23(h) require?8
  • Q 1.4 : Are there any basic constitutional issues concerning class actions?9
  • Q 1.5 : What are the jurisdictional issues in class actions?10
    • Q 1.5.1 : How do you determining citizenship for diversity purposes?11
    • Q 1.5.2 : How do you look at the aggregation of claims for purposes of jurisdictional amount?11
  • Q 1.6 : What are the key trends in the use of class actions in mass tort litigation?12
Chapter 2: Class Action Prerequisites
  • Q 2.1 : What are the implicit requirements for any class action?16
    • Q 2.1.1 : What is an acceptable class definition?16
    • Q 2.1.2 : What does it mean that a class must be ascertainable?17
    • Q 2.1.3 : Must the class representative be a member of the class?18
    • Q 2.1.4 : What if the representative’s claim is mooted?18
    • Q 2.1.5 : Do Twombly and Iqbal apply to class complaints?19
  • Q 2.2 : How large does a proposed class have to be?20
    • Q 2.2.1 : Do any other factors besides numbers matter?20
    • Q 2.2.2 : Does the requirement apply to subclasses?21
    • Q 2.2.3 : Can numerosity be revisited during the case?21
  • Q 2.3 : What is the required element of commonality?21
    • Q 2.3.1 : Is more than one common issue necessary?22
    • Q 2.3.2 : What are the courts’ different approaches to commonality?22
    • Q 2.3.3 : How is commonality different from the “predominance” inquiry?23
  • Q 2.4 : What is the meaning of the required element of typicality?23
    • Q 2.4.1 : What is the significance of defenses unique to the named plaintiffs?24
    • Q 2.4.2 : What other kinds of factual disparities can defeat typicality?25
  • Q 2.5 : What are the requirements regarding adequacy of representation?25
    • Q 2.5.1 : What is the purpose of the adequacy rule?25
    • Q 2.5.2 : How do courts assess the adequacy of class representatives?26
    • Q 2.5.3 : What factors do the courts emphasize in assessing adequacy?26
    • Q 2.5.4 : What factors are less frequently emphasized in assessing adequacy?27
  • Q 2.6 : How do courts appoint class counsel?28
    • Q 2.6.1 : What procedures are used to appoint counsel?28
    • Q 2.6.2 : What do courts require for adequacy of class counsel?29
    • Q 2.6.3 : Does tactical claim-splitting impact adequacy of counsel?29
    • Q 2.6.4 : What are the courts’ reactions to inadequate representation?30
Chapter 3: Mandatory Class Actions
  • Q 3.1 : What requirements must be met to qualify as a mandatory class?34
    • Q 3.1.1 : What is the impact of qualifying under more than one subsection of Rule 23(b)?35
    • Q 3.1.2 : What due process considerations impact mandatory class actions?35
  • Q 3.2 : How do mandatory and opt-out classes compare?36
  • Q 3.3 : What is an action based on a risk of incompatible standards of conduct?36
    • Q 3.3.1 : What are the purposes of Rule 23(b)(1)(A)?37
    • Q 3.3.2 : What are major requirements for certification under Rule 23(b)(1)(A)?37
    • Q 3.3.3 : What if a class is seeking monetary damages?38
  • Q 3.4 : What is a limited fund class?38
    • Q 3.4.1 : What are the requirements for “limited fund” treatment?40
    • Q 3.4.2 : Does Rule 23(b)(1)(B) apply to punitive damages?40
    • Q 3.4.3 : What are the other major types of Rule 23(b)(1)(B) cases?41
Chapter 4: Injunctive Relief and Damages Classes
  • Q 4.1 : What is an injunctive-relief class?48
    • Q 4.1.1 : What are the general requirements for a Rule 23 (b)(2) class?49
    • Q 4.1.2 : Must the party seeking certification show predominance or superiority?50
    • Q 4.1.3 : What about notice and opt-out rights?50
    • Q 4.1.4 : Must class cohesion and necessity also be established?51
    • Q 4.1.5 : Can injunctive-relief classes also seek damages?52
    • Q 4.1.6 : May a class seeking medical monitoring be certified under Rule 23(b)(2)?52
    • Q 4.1.7 : Can there be a defendant class under Rule 23(b)(2)?53
  • Q 4.2 : What is a damages class?54
    • Q 4.2.1 : Why are damages classes necessary?54
    • Q 4.2.2 : What does it mean for common questions to predominate?55
    • Q 4.2.3 : How do courts assess whether a question is a common or an individual one?55
    • Q 4.2.4 : Are there particular issues that often arise as part of the predominance analysis?56
    • Q 4.2.5 : How do courts assess the superiority of a Rule 23(b)(3) damages class?58
    • Q 4.2.6 : Can medical-monitoring classes be certified under Rule 23(b)(3)?60
  • Q 4.3 : What is the meaning of Rule 23(c)(4)?60
    • Q 4.3.1 : What are the prerequisites for a single-issue class?60
    • Q 4.3.2 : How is the predominance requirement of Rule 23(b) impacted by Rule 23(c)(4)?61
    • Q 4.3.3 : May predominance be manufactured through bifurcation?62
    • Q 4.3.4 : How do issue classes apply to mass torts?63
Chapter 5: Special Issues in Multi-Jurisdictional Class Actions
  • Q 5.1 : What was the situation in multi-jurisdictional class litigation before the enactment of the Class Action Fairness Act of 2005?77
  • Q 5.2 : What was the impact of CAFA?77
  • Q 5.3 : Are there different standards for certifying a multi-jurisdictional class?78
  • Q 5.5 : What are the procedural issues in a multi-jurisdictional class?80
    • Q 5.5.1 : What unique standing issues occur in determining multi-jurisdictional classes?80
    • Q 5.5.2 : What personal jurisdiction issues occur in determining multi-jurisdictional classes?81
    • Q 5.5.3 : What claim-splitting or and class-splitting issues occur in determining multi-jurisdictional classes?82
  • Q 5.6 : What are the manageability issues in a multi-jurisdictional class83
  • Q 5.7 : Are there due process limits on multi-jurisdictional classes?84
    • Q 5.7.1 : What are the limits in class actions on punitive damages?84
  • Q 5.8 : What are the choice-of-law issues?87
    • Q 5.8.1 : How is today’s approach choice-of-law analysis different from the past approaches?88
    • Q 5.8.2 : Is there a test that is used to decide on which law to use?89
    • Q 5.8.3 : How are subclasses used in establishing the proper choice of law?89
    • Q 5.8.4 : When is using the forum state’s law appropriate?90
    • Q 5.8.5 : What is the impact of a contractual choice-of-law provision?90
    • Q 5.8.6 : How are choice-of-law issues impacted by a proposed settlement?91
    • Q 5.8.7 : Does CAFA impact choice of law?92
  • Q 5.9 : How effective are multi-jurisdictional class actions in mass torts?93
Chapter 6: Absent Class Members
  • Q 6.1 : What is an absent class member?104
  • Q 6.2 : When are absent class members given notice that a class has been certified?105
    • Q 6.2.1 : What are an absent a class member’s notice rights?106
    • Q 6.2.2 : How do courts apply Rule 23(c)(2)(B)?107
    • Q 6.2.3 : What are the methods for providing notice?107
    • Q 6.2.4 : What should be the timing of Rule 23 notice?108
    • Q 6.2.5 : What are the form and content of notice to the class?109
    • Q 6.2.6 : Who pays the cost of providing notice?109
  • Q 6.3 : What other issues may prompt notice to be given?110
    • Q 6.3.1 : What is the effect of Rule 23(d)?110
    • Q 6.3.2 : What is the effect of Rule 23(e)?111
    • Q 6.3.3 : Is there notice of decertification?112
  • Q 6.4 : Can class members opt out of a certified class?112
    • Q 6.4.1 : What is the ability to opt out of a 23(b)(1) class?113
    • Q 6.4.2 : What is the ability to opt out of 23(b)(2) class actions?113
    • Q 6.4.3 : What are the opt-out rights in Rule 23(b)(3) class actions?114
  • Q 6.5 : Can absent class members intervene?114
    • Q 6.5.1 : Can absent class members appear?115
  • Q 6.6 : Are informal communications with class members allowed?115
    • Q 6.6.1 : What are the possible reasons for contacting class members?116
    • Q 6.6.2 : Can there be contact with potential class members before the class action is filed?117
    • Q 6.6.3 : Can there be contact with potential class members between filing the complaint and class certification?117
    • Q 6.6.4 : Does Rule 23(d) regulate communications with class members?118
    • Q 6.6.5 : Must a party correct misleading or improper communications?119
    • Q 6.6.6 : Are there permissible informal communications after class certification?119
  • Q 6.7 : How do courts handle communications from class members?120
Chapter 7: The Class Action Fairness Act of 2005
  • Q 7.1 : What is CAFA?131
    • Q 7.1.1 : What was the genesis of CAFA?132
    • Q 7.1.2 : What is the purpose of CAFA?133
  • Q 7.2 : What are the requirements for new federal jurisdiction in class actions?134
  • Q 7.3 : What is “minimal” diversity?135
    • Q 7.3.1 : How is citizenship determined for purposes of establishing minimal diversity?136
  • Q 7.4 : What are the exceptions to CAFA diversity jurisdiction?137
    • Q 7.4.1 : What actions qualify for the “home state” exception?137
    • Q 7.4.2 : What actions qualify for the “local controversy” exception?138
    • Q 7.4.3 : How does a court determine which defendants are “significant” for purposes of applying the “local controversy” exception?139
    • Q 7.4.4 : How does a court determine where the principal injuries occurred for purposes of the “local controversy” exception?140
    • Q 7.4.5 : What actions qualify for the “interests of justice” exception?141
  • Q 7.5 : What matters are exempt from CAFA diversity jurisdiction?142
  • Q 7.6 : Can claims be aggregated for jurisdictional purposes?143
    • Q 7.6.1 : How is the amount in controversy determined for monetary claims?144
    • Q 7.6.2 : How do non-monetary or less quantifiable claims for relief affect the determination of the amount in controversy?146
    • Q 7.6.3 : Absent federal question jurisdiction, can a federal court obtain jurisdiction over a class that cannot satisfy CAFA’s $5 million amount in controversy?147
  • Q 7.7 : What are “mass actions,” and how does CAFA treat “mass actions”?148
    • Q 7.7.1 : What are the requirements for removing mass actions?148
    • Q 7.7.2 : How are the dual amount-in-controversy requirements applied to mass actions?149
    • Q 7.7.3 : What actions are exempted from removal as mass actions?150
    • Q 7.7.4 : Are mass actions that are removed to federal court subject to transfer under the multidistrict litigation statute?150
    • Q 7.7.5 : Does CAFA toll the statute of limitations for claims asserted in a mass action?151
  • Q 7.8 : Does CAFA create any special rules on removal?151
    • Q 7.8.1 : How does CAFA liberalize removal procedures?151
    • Q 7.8.2 : How does CAFA modify the timing for removing an action?152
    • Q 7.8.3 : Can a home-state defendant remove an action under CAFA?153
    • Q 7.8.4 : Can one of a group of defendants remove an action on its own under CAFA?153
    • Q 7.8.5 : How does CAFA expand appellate review of removal and remand decisions?154
    • Q 7.8.6 : Who has the burden of establishing that removal is proper?155
Chapter 8: Discovery Issues
  • Q 8.1 : Is discovery allowed on the issue of class certification?176
    • Q 8.1.1 : What are the major types of discovery employed prior to the court’s class certification decision?178
    • Q 8.1.2 : May courts grant or deny class certification without any discovery?178
    • Q 8.1.3 : May courts grant “conditional” certification pending discovery?179
  • Q 8.2 : Should there be discovery of merits issues prior to the court’s class certification decision?180
  • Q 8.3 : Are there limits on the scope of discovery prior to the court’s class certification decision?182
  • Q 8.4 : What discovery is permitted into the Rule 23(a) issues?183
    • Q 8.4.1 : What discovery is permitted into “numerosity”?184
    • Q 8.4.2 : What discovery is permitted into “commonality”?184
    • Q 8.4.3 : What discovery is permitted into “typicality”?184
    • Q 8.4.4 : What discovery is permitted into “adequacy”?185
    • Q 8.4.5 : What discovery is permitted into potential claim-splitting?185
    • Q 8.4.6 : What discovery is permitted into plaintiff’s financial information?185
  • Q 8.5 : What discovery is permitted into the Rule 23(b) issues?186
    • Q 8.5.1 : What discovery is permitted into limitations on the class fund?186
    • Q 8.5.2 : What discovery is permitted into a request for injunctive or declaratory relief?186
    • Q 8.5.3 : What discovery is permitted into whether common issues predominate?187
  • Q 8.6 : Can a party discover the identity of absent class members?187
    • Q 8.6.1 : Can a party direct discovery to absent class members prior to certification of the class?188
  • Q 8.7 : What expert discovery on class certification is appropriate?189
  • Q 8.8 : What is the scope of discovery after the class has been certified?191
    • Q 8.8.1 : Can a party direct discovery to unnamed class members after the class has been certified?192
    • Q 8.8.2 : When is discovery “sampling” of unnamed class members appropriate?193
  • Q 8.9 : When will discovery be stayed pending dispositive motions?194
  • Q 8.10 : What is the scope of the duty to preserve evidence in a putative class action?195
Chapter 9: Class Certification Hearings and Procedure
  • Q 9.1 : What is the typical timing of the certification decision?210
    • Q 9.1.1 : How does the certification issue get raised?211
    • Q 9.1.2 : What is the court’s obligation to rule?211
    • Q 9.1.3 : To what extent may the court inquire into the merits?211
    • Q 9.1.4 : Does the maturity of the mass tort matter?212
  • Q 9.2 : What happens at a certification hearing?212
    • Q 9.2.1 : Is there a need for a hearing on class certification?213
    • Q 9.2.2 : What is the burden of proof?213
    • Q 9.2.3 : What are the types of procedures used at the hearing?214
  • Q 9.3 : What kind of evidence is presented?215
    • Q 9.3.1 : Is expert testimony presented at the class certification stage?216
    • Q 9.3.2 : Will named class members testify?216
  • Q 9.4 : What certification options does the court have?216
    • Q 9.4.1 : Can the court make a conditional certification?216
    • Q 9.4.2 : When is a subclass appropriate?217
    • Q 9.4.3 : How do the courts handle multiple or competing classes?218
    • Q 9.4.4 : How do courts handle classes appropriate for certification under both Rule 23(b)(2) and Rule 23(b)(3)?219
  • Q 9.5 : When is decertification appropriate?220
Chapter 10: Appeal of Class Certification Decisions
  • Q 10.1 : Are orders denying or granting class certification final decisions?228
  • Q 10.2 : What kinds of potential appeals lie from a denial or granting of class certification?229
    • Q 10.2.1 : Can a party appeal the denial or granting of certification under Rule 54(b)?229
    • Q 10.2.2 : Can a party appeal the denial or granting of certification under 28 U.S.C. § 1292(a)(1)?230
    • Q 10.2.3 : Can a party appeal the denial or granting of certification under 28 U.S.C. § 1292(b)?230
    • Q 10.2.4 : How does an appeal under Rule 23(f) work?231
    • Q 10.2.5 : What does CAFA say about appellate review?233
  • Q 10.3 : Can there be a mandamus review of certification?234
  • Q 10.4 : Can a class representative with a moot claim appeal the denial of class certification?234
  • Q 10.5 : Can absent class members intervene for purposes of appeal?235
  • Q 10.6 : What is the standard of review on appeal?235
Chapter 11: Statute of Limitations Issues
  • Q 11.1 : What statute of limitations applies in a class action?244
  • Q 11.2 : How is the statute of limitations defense handled procedurally?247
  • Q 11.3 : What are the “tolling” principles in class actions?248
    • Q 11.3.1 : When does the clock start and stop?248
    • Q 11.3.2 : What limitations on tolling have courts constructed post-American Pipe?249
    • Q 11.3.3 : How does American Pipe apply to opt-outs?250
  • Q 11.4 : What happens when a plaintiff amends an individual action to assert class claims?251
Chapter 12: Trial of a Class Action
  • Q 12.1 : How often do class actions go to trial?258
  • Q 12.2 : How is a class action tried?259
    • Q 12.2.1 : Do courts require a trial plan?260
    • Q 12.2.2 : How extensive must the trial plan be?261
  • Q 12.3 : What orders can the court issue controlling class proceedings under Rule 23(d)?261
  • Q 12.4 : What about the Seventh Amendment right to jury trial?263
    • Q 12.4.1 : What is a bifurcated trial?263
    • Q 12.4.2 : What is the impact of the Seventh Amendment’s reexamination clause?264
    • Q 12.4.3 : What are examples of the impact of bifurcation on the right to a jury trial?265
    • Q 12.4.4 : What is the impact of the issue of damages on the trial of the class action?266
    • Q 12.4.5 : Which jurisdiction’s law should control?267
    • Q 12.4.6 : Can a class action be prosecuted on behalf of a composite “perfect plaintiff”?268
  • Q 12.5 : What are the key problems of proof in mass tort classes?269
Chapter 13: Remedies, Damages, Fees
  • Q 13.1 : What remedies are appropriate in a class action?276
    • Q 13.1.1 : Are there any limits on damages?276
    • Q 13.1.2 : Are in-kind and coupon settlements permitted?278
    • Q 13.1.3 : What is “fluid recovery”?279
    • Q 13.1.4 : What is “cy pres”?280
  • Q 13.2 : How do you prove class members’ damages?281
    • Q 13.2.1 : Do you need individual proof?281
    • Q 13.2.2 : Can you sample and extrapolate?282
  • Q 13.3 : How are class damages distributed?284
  • Q 13.4 : How do attorneys’ fees work in a class action?284
    • Q 13.4.1 : How does Rule 23(h) work?284
  • Q 13.5 : What are the methods for setting fees?285
    • Q 13.5.1 : How is a fee under the percentage method determined?286
    • Q 13.5.2 : How is a fee under the lodestar method determined?287
    • Q 13.5.3 : Who can object to fees?289
  • Q 13.6 : What is the controversy about fees and remedies?290
Chapter 14: Settlement
  • Q 14.1 : How often do class actions settle?299
  • Q 14.2 : How are class action settlements structured?299
    • Q 14.2.1 : Are side agreements allowed?302
  • Q 14.3 : Can there be pre-certification settlement with only named plaintiffs?302
    • Q 14.3.1 : What are the notice requirements of a pre-certification settlement of individual claims?303
  • Q 14.4 : Can a class be certified for settlement purposes?303
    • Q 14.4.1 : Must the requirements of Rule 23 be met for a proposed class action settlement?304
    • Q 14.4.2 : What is the status of settlement classes after Amchem?305
    • Q 14.4.4 : What is the status of mandatory limited fund class settlements after Ortiz?306
    • Q 14.4.5 : What is the binding effect in later litigation of a “concession” that a settlement class is appropriate for certification?307
  • Q 14.5 : What is the judicial role in approving settlements?308
    • Q 14.5.1 : What are the court’s considerations in approving settlements?309
    • Q 14.5.2 : What is the procedure for reviewing a proposed settlement?310
    • Q 14.5.3 : What are the notice requirements for settlement post-certification?311
    • Q 14.5.4 : What information must be in the notice?312
    • Q 14.5.5 : Is there an opportunity to opt out of a proposed settlement?313
    • Q 14.5.6 : How can class members make objections to a proposed settlement?314
  • Q 14.6 : What is the role of class counsel in settlements?315
    • Q 14.6.1 : What is the role of class representatives in settlements?316
    • Q 14.6.2 : What is the role of objectors in settlements?317
  • Q 14.7 : Are conditional or partial settlements permitted in class actions?318
  • Q 14.8 : What are the CAFA special settlement provisions?319
    • Q 14.8.1 : What are coupon settlements?319
    • Q 14.8.2 : What are net loss settlements?320
    • Q 14.8.3 : Is there any prohibition against geographic-based discrimination?321
    • Q 14.8.4 : Do you have to give notice of a settlement to government officials?321
  • Q 14.9 : How does settlement administration work?323
  • Q 14.10 : How transparent are class action outcomes?324
  • Q 14.11 : How are attorneys’ fees determined for the settlement?325
  • Q 14.12 : Can a class representative or objector receive an incentive payment?327
Chapter 15: State Court Class Actions
  • Q 15.1 : What are the differences between federal and state court class actions?336
  • Q 15.2 : Do the basic prerequisites differ?337
    • Q 15.2.1 : How does the requirement for numerosity differ?337
    • Q 15.2.2 : How does the requirement for commonality differ?339
    • Q 15.2.3 : How does the requirement for typicality differ?340
    • Q 15.2.4 : How does the requirement for adequacy of representation differ?341
    • Q 15.2.5 : Are there differences on issues of predominance and cohesion?342
    • Q 15.2.6 : How do state courts look at manageability?345
  • Q 15.3 : What are state approaches to notice and opting out?346
  • Q 15.4 : What is the role and importance of state court class actions?347
  • Q 15.5 : May a federal court enjoin a state court class action?349
Chapter 16: Estoppel Issues
  • Q 16.1 : What is the difference between claim and issue preclusion?358
  • Q 16.2 : What is claim preclusion in the class action context?359
    • Q 16.2.1 : Are there non-parties who may be bound by a prior determination?360
    • Q 16.2.2 : Who is in privity with the class?362
    • Q 16.2.3 : Are there class members who may not be bound by a prior adjudication?362
    • Q 16.2.4 : Are there any limitations upon the res judicata effect of class actions seeking only declaratory or injunctive relief?363
  • Q 16.3 : What is issue preclusion in the class action context?363
    • Q 16.3.1 : What is the binding effect of state court settlements of exclusively federal claims?364
    • Q 16.3.2 : What is the impact on preclusion of a collateral attack based on adequacy of representation?365
  • Q 16.4 : How do estoppel issues arise in parallel federal and state court proceedings?366
    • Q 16.4.1 : Is there any binding effect of a prior federal court denial of class certification upon a later state court class action?366
    • Q 16.4.2 : Can a federal court enjoin a competing state court class action?367
Chapter 17: Ethical Issues
  • Q 17.1 : Are there ethical issues associated with attorneys’ fees in class actions?376
    • Q 17.1.1 : Do contingent fee arrangements raise issues?377
  • Q 17.2 : What are the ethical rules for attorney communication with class members?378
    • Q 17.2.1 : What about pre-certification communications?380
    • Q 17.2.2 : Is it different for post-certification communications?382
  • Q 17.3 : Can class actions pose any conflicts of interest?382
    • Q 17.3.1 : Is there an issue with collusion between plaintiffs’ counsel and defense counsel in settlements?383
    • Q 17.3.2 : Can there be conflicts among class members?385
    • Q 17.3.3 : Can there be conflicts between class counsel and class members?386
  • Q 17.4 : Any other ethical issues in class actions?386
    • Q 17.4.1 : Can counsel advance the costs of the litigation?387
    • Q 17.4.2 : Can a settlement place restrictions on the right to practice?387
Chapter 18: Multidistrict Litigation
  • Q 18.1 : What is an MDL?397
  • Q 18.2 : How are cases coordinated in an MDL?398
    • Q 18.2.1 : How are proceedings initiated under section 1407?398
    • Q 18.2.2 : What are the standards for transfer?400
    • Q 18.2.3 : How does the panel make the decision?400
    • Q 18.2.4 : What is the effect of a transfer order?401
    • Q 18.2.5 : Are MDL decisions reviewable?401
  • Q 18.3 : What determines the court and judge to which an MDL is transferred?402
  • Q 18.4 : What are the powers and duties of the transferee judge?403
    • Q 18.4.1 : How does the MDL court coordinate discovery?403
    • Q 18.4.2 : What motions practice will there be?404
    • Q 18.4.3 : How are experts handled in an MDL?404
    • Q 18.4.4 : What law applies in an MDL?405
  • Q 18.5 : Can MDL cases be tried?405
    • Q 18.5.1 : Can a transferee court try a case?405
  • Q 18.6 : What about cases in state courts?406
    • Q 18.6.1 : Do any states have their own mini-MDLs?406
    • Q 18.6.2 : Do MDLs coordinate with state court counterparts?406
Chapter 19: Other Aggregation Techniques
  • Q 19.1 : Can joinder be applied in a mass tort setting?412
    • Q 19.1.1 : What is permissive joinder of parties?413
    • Q 19.1.2 : How does Rule 20 work?413
    • Q 19.1.3 : When can there be joinder of defendants?413
    • Q 19.1.4 : When is there misjoinder of parties under Rule 21?414
    • Q 19.1.5 : What are the jurisdictional issues with joinder?414
    • Q 19.1.6 : Can there be separate trials after joinder?414
  • Q 19.2 : What is compulsory joinder of parties?414
    • Q 19.2.1 : How do courts determine when absent party is “necessary”?415
    • Q 19.2.2 : What does Rule 19 mean by ‘‘complete relief’’?415
    • Q 19.2.3 : What is the effect of the ‘‘impair or impede’’ clause?416
    • Q 19.2.4 : What is the meaning of the ‘‘multiple liability’’ clause?416
    • Q 19.2.5 : How do courts assess the feasibility of joinder?417
    • Q 19.2.6 : What happens when a party should be joined but joinder is not feasible?417
  • Q 19.3 : What is impleader?418
    • Q 19.3.1 : Under what circumstances is impleader allowed?418
    • Q 19.3.2 : How does Rule 14 work?418
  • Q 19.3.3 : When is leave of court required for impleader?419
    • Q 19.3.4 : Are there any jurisdictional requirements?419
  • Q 19.4 : What is interpleader?420
    • Q 19.4.1 : How does interpleader pursuant to Rule 22 work?420
    • Q 19.4.2 : How does statutory interpleader work under 28 U.S.C. § 1335?421
  • Q 19.5 : What is intervention?423
  • Q 19.6 : What are the requirements to intervene as of right?423
    • Q 19.6.1 : When is a motion to intervene timely?424
    • Q 19.6.2 : Does the applicant have to have an interest in the subject?424
    • Q 19.6.3 : Does there have to be inadequacy of existing representation?425
    • Q 19.6.4 : What are the standing requirements?425
  • Q 19.7 : What are the requirements for permissive intervention?425
  • Q 19.8 : What are the procedures for intervention?426
  • Q 19.9 : Can a party intervene in a mass tort?427
  • Q 19.10 : Can cases be consolidated?427
    • Q 19.10.1 : When should there be separate trials?428
  • Q 19.11 : When can cases be transferred to another court?428
    • Q 19.11.1 : What are the requirements for transfer?429
    • Q 19.11.2 : Is § 1404(a) useful as an aggregation device?430
  • Q 19.12 : What about bankruptcy as an aggregation device?430
  • Q 19.13 : Is there any federal/state coordination mechanism in a mass tort?431
Chapter 20: The Future of Aggregate Litigation
  • Q 20.1 : What is a “structural class action”?
  • Q 20.2 : How do courts handle the situation when an individual plaintiff brings claims based on the underlying claims of a large number of people?449
  • Q 20.3 : What is “embedded aggregation”?450
  • Q 20.4 : Has there recently been a quasi-class action approach to MDL management?451
  • Q 20.5 : What are ALI’s Principles of Aggregate Litigation?453
    • Q 20.5.1 : What considerations are recommended by the Principles in determining “superiority”?454
    • Q 20.5.2 : What do the Principles say about individual issues?454
    • Q 20.5.3 : How would the Principles modify approaches to aggregate settlement?545
  • Q 20.6 : What is the debate over class action waivers in consumer agreements?457
  Index

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