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STAGE ONE: JURISDICTION & PRECLUSION
iv. These are for structural reforms, e.g. civil rights, ERISA, or injunctive cases. No opt-out, no required notice.
Superior 23(b)(3) Classes a. Notice and opt-out are required for these classes.
b. Typical claims: RICO, securities fraud, antitrust cases, bank overdraft charge cases.
c. Injuries are difficult to adjudicate because 23(b)(3) classes requires identical claims, identical laws, a formula to assess damages, and no disproportionate liability, i.e. cannot swamp a poor
d. Damages are acceptable, but there must be a way to easily determine them. A class may not be certified because all Ps were harmed very differently, e.g. by toxic waste. Sw. Ref. Co. v.
Bernal (Tex. 2000).
e. Standards i. Predominance: more demanding than commonality; common questions must be significant to the suit and can be resolved in a single case with generalized proof or standard formula.
ii. Superiority: separate actions would be wasteful and repetitive, or Ps would not individually seek small claims.
iii. Subclasses: may divide by state if state laws are different, and by legal theory if necessary (e.g. Cal. unjust enrichment class; Ore. fair-dealing class, etc.).
1. The class action standard requires sending reasonable notice to all members who can be identified through reasonable effort. Eisen v. Carlisle Jacquelin (U.S. 1974).
2. The standard for reasonable notice is personal service or something "reasonably calculated" to convey info as a person actually desirous of informing the party would. Mullane.
a. Mailed notice is required in condemnation proceedings. Walker v. City of Hutchinson (U.S.
b. Mail is better than posting on the door. Greene v. Lindsey (U.S. 1982).
c. DPC only requires that government send notice, not that D receives it. Dusenbury v. United
States (U.S. 2002).
d. If a state learns that notice was not delivered, should do more. Jones v. Flowers (U.S. 2006).
e. State need not take extraordinary effort to discover identity and location of party, but must send if reasonable. Mennonite Bd. of Missions v. Adams (U.S. 1983).
3. The reason notice is so important in class actions is an absent class member may be bound by the decision. In the case that served as the basis for FRCP 23, Hansberry v. Lee, the court noted that absent parties to be bound must have adequate representation, a right to participate, a joint interest with the representatives, and the represented must legally stand in the right of the absent. Hansberry.
1. Courts are wary of designating Ds as a class; there are legitimate D class actions (e.g. versus widespread illegality, like in a class-action counterclaim), but there are lots of potential problems.
2. Problems include opt-out provisions, binding D for money, no choice of representation, etc.
Settlements & Attorneys' Fees
1. Courts are required to accept or reject settlements, but they may not modify the settlement by, for example, accepting the settlement but rejecting the waiver of attorneys' fees. Evans.
2. Silver equates this to a form contract, in which all absent parties sign onto a single agreement between the attorney, the named representatives, and the court.
Mullane v. Central Hanover Bank & Trust Co. (U.S. 1950): D sought "accounting" which would prevent Ps from suing for bank mishandling funds. Notice was in newspaper instead of direct correspondence. This was not enough notice.
Hansberry v. Lee (U.S. 1940, 299): Black D tried to move into neighborhood with racial covenant. Neighbor sued.
In earlier class action, court stipulated that 95% of neighbors signed the covenant, even though this wasn't true.
But since the interests of D and the earlier class were not aligned---the class was supporters of covenant versus random others---D is not bound by the decision.
Evans v. Jeff D. (U.S. 1986): P sued under 42 U.S.C. SS 1983 for children in Idaho. D agreed to settle, but only if P
waived attorneys' fees. This put P in ethical box, but court ruled that the court properly accepted the settlement.
1. Brennan, J., dissenting: this will make it more difficult for civil rights Ps to litigate, since it will always be in client's best interest to exchange better judgment for fee award.
Larsen v. Union Bank (S.D. Fla. 2011): P sued D, bank, for overdrafting charges. Meets the main class action criteria since a common scheme impacted a large number of people, and meets the Superior Class standards because each member would not pursue claim, but together it makes sense.
STAGE TWO: VENUE & REMOVAL
I. Venue - 28 U.S.C. SSSS 1391, 1392, 1404, 1406, 1407 a. Synthesized Rule/Procedure i. P must sue D, generally, where any D resides if all Ds live in the same state, or where the action took place.
b. Textual Rule 11
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