Presenting a live 90-minute webinar with interactive Q&A Using Class Action Trial Plans and Other Pretrial Filings to Influence Certification TUESDAY, NOVEMBER 10, 2015 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: 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 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 .
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CLASS ACTION TRIAL PLANS: Strategic Use During Certification, Decertification, Summary Judgment, Discovery and Trial T O D D J A C K S O N A D A M H A N S E N F E I N B E R G , J A C K S O N , W O R T H M A N N I C H O L S K A S T E R , P L L P & 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.
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
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