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Rule 20 Permissive Joinder of Parties
(a) Permissive Joinder. All persons may join in one action as plaintiffs if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all these persons will arise in the action. All persons (and any vessel, cargo or other property subject to admiralty process in rem) may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all defendants will arise in the action. A plaintiff or defendant need not be interested in obtaining or defending against all the relief demanded. Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective liabilities.

(b) Separate Trials. The court may make such orders as will prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party against whom the party asserts no claim and who asserts no claim against the party, and may order separate trials or make other orders to prevent delay or prejudice.

The purpose of the rule is to promote trial convenience and expedite the final determination of disputes, thereby preventing multiple lawsuits.

You need to prove two things:
1) a right to relief must be asserted, by, or against, each plaintiff or defendant relating to or arising out of the same transaction or occurrence, or series of transactions or occurrences; and

2) some question of law or fact common to all the parties must arise in the action. Rule 20 is premised on efficiency concerns.

Rule 20 allows:

plaintiff to join tortfeasors

plaintiff to join defendants who are or who may be liable in the alternative

pemrits multiple plaintiffs to join together in one suit.

Rule 20 does not allow defendants to require that plaintiffs join together.
With respect to Title VII, courts have found that the discriminatory characttter of a defendant’s conduct is basic to the class, and the fact that the individual class members may have suffered different effects from the alleged discrimination is immaterial for the purposes of the prerequisite.

Although Title VII and sec. 1981 have different elements in their statutory causes of action, a central issue in both is that the plaintiff was subjected to race discrimination.

Mosley v. General Motors Corporation (page 24; 8th Circuit)

All “logically related” events entitling a person to institute a legal action against another generally are regarded as comprising a ttransaction or occurrence. Absolute identity of all events is unnecessary. Here, each of the ten plainttifs alleged that he had been injured by the same general policy of discrimination on the part of GM and the Union thus this meets tthe first requisite for joinder under Rule 20(a). Second, the right to relief here
àdepends on the ability to demonstrate that each of the plaintiffs was wronged by racially discriminatory policies on the part of the defendants. The discriminatory character of thdefendants’ conduct is thus basic to each plaintiff’s recovery. The fact that each palintiff may have suffered different effectts from the alleged discrimination is immaterial for the purposes of determining the common question of law or fact so, the second part is met.
The difficulties of ultimately determining damages to various plaintiffs are not so overwhelming as to require severance, and if appropriate, separate trials can be granted on damages after the determination of common questions.
Joinder of multiple claims is permitted by Rule 18(a).
The claim here was based on different events by which each plaintiff was allgedly discriminated against as to promotion, conditions of employment, failure to hire, etc. It also seems likely that different GM employees were responsible for the alleged acts of discrimination against each plaintiff.

Stanford v. Tennessee Valley Authority (page 29;Middle D. of Tennessee)

Defendants’ plants are separately owned and operated and they are located at different distances from the plaintiff’s property. Their activities are separate and distinct from each other although they are engaged in the same general type of business. There is nothing on the face of the complaint from which it could be concluded that the plaintiff’s claims against the two defendants arise out of the same transaction or occurrence, or out of the same series of transactions or occurrences. The transactions are separate as to each defendant. Thus, there is misjoinder here. But, Rule 42 authorizes the Court to order a joint hearing or trial of any or all matters in issue in the actions, or to consolidate the actions, if they involve “a common question of law or fact.” Here, the requirements of Rule 42 are met. Thus, the claims are severed for all purposes and to be proceeded with separately except that they will be tried together before the same jury.

The court probably got this case wrong. There are efficiencies for bringing the two defendants together for pre trial, but a good argument can be made that the two could be separated for trial.
Rule 19 Joinder of Persons Needed For Just Adjudication

(a) Persons to Be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party. If the person should join as a plaintiff but refuses to do so, the person may be made a defendant, or, in a proper case, an involuntary plaintiff. If the joined party objects to venue and joinder of that party would render the venue of the action improper, that party shall be dismissed from the action.
(b) Determination by Court Whenever Joinder Not Feasible. If a person is described in subdivision (a)(1) (2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
(c) Pleading Reasons for Nonjoinder. A pleading asserting a claim for relief shall state the names, if known to the pleader, of any persons as described in subdivision (1)(1) hereof who are not joined, and the reasons why they are not joined.
(d) Exception of Class Actions. This rule is subject to the provisions of Rule 23. This rule is mandatory for some parties. It only covers a small number of cases and certainly would not have covered Stanford v. TVA

Rule 19 is a 3 part inquiry:
1) When should a party be joined, if feasible?
there are three circumstances:
i) (a)(1) when in 3d party’s absence, complete relief cannot be given to those already a party [ Hollow relief].
ii) (a)(2)(1) we want to join 3d party because if we do not, 3d party’s interests might be impaired.
iii) (a)(2)(2) if 3d party is not joined, their absence may leave one or more parties with inconsistent or multiple obligations.
2) Can the party be joined? consider subject matter jurisdiction, diversity jurisdiction, venue. If no, then we are doen. If yes, then:
3) Is it feasible to join this party? If the person should be joined and you can join them, then you MUST join them.

19(b) states 4 factors to help you make the decision whether to go on w/o 3d party or dismiss:
1) to what extent would a judgment prejudice either 3d party or those already parties. consider the scope of prejudice.
2) to what extent can the court take protective measures to ease prejudice? look at advisory committee notes.
3) whether a judgment rendered in the person’s absence would be adequate? [mengler does not thin this means anything on its own; it meshes with the other factors.]
4) Will plaintiff have an adequate remedy if the case is dismissed? [i.e. is there some other court where plaintiff can getr relief?] Note 5, P. 59 is a good example of compulsory joinder.

Eldredge v. Carpenters 46 Northern California Counties JATC (page 53; 9th Cir)

Rule 19 requires two separate inquiries. First, are there persons who should be joined, either because their own interests or the interests of the parties might be harmed by their absence? Such persons, referred to as “necessary parties”, must be joined if feasible [19(a)]. Second, if parties determined to be necessary under rule 19(a) cannot be joined, should the action in “equity and good conscience” be dismissed? Only if the court determines that the action should be dismissed is the absent party labeled “indispensable.” The inquiry should focus on the practical effects of joinder and non-joinder. Here, 4500 employers were not necessary parties because an injunction against ATC would stop its violations, and the other employer’s interests in employee selection will not be impeded if they are not made parties.

Billy J. Temple v. Synthes Corporation, Ltd. (page 1 supplement; Supreme Court)

It is not necessary for all joint tort feasors to be named as defendants in a single lawsuit. Advisory Committee notes to Rule 19(a) state that “a tortfeasor with the usual ‘joint and several’ liability is merely a permissive party to an action against another with like liability.” Here, threshold requirements of 19(a) have not been satisfied, so no inquiry under 19(b) is necessary.


Once a person has been determined to be a necessary party under Rule 19(a), the rule provides that he shall be joined. The court will order that he be made a party, and “if he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in the proper case, an involuntary plaintiff.”

There are however, three expressed limitations on such joinder. He cannot be made a party unless:
1) he is subject to service of process
2) his joinder will not deprive the court of subject matter jurisdiction, and
3) he does not properly object that his joinder would render venue improper. Ancillary jurisdiction permits the joinder of issues and parties over which a federal court does not have subject matter jurisdiction as an incident to disposition of the entire case before the court. The Supreme Court, however, has refused to extend ancillary jurisdiction when it would undercut the intentt of the particular jurisdictional statute involved, as with the requirement of complete diversity.

Pendent Jurisdiction

In rare circumstances federal jurisdiction extends to suits in which a well pleaded complaint to enforce a state created right to relief discloses a compelling need to resolve a substantial and disputed question of federal law. Although it is technically sufficient under the Constitution that some issue of federal law be the merest “ingredient” of an otherwise state law cause of action in order for the whole case to be tried in federal court, Congress takes a very restrictive approach: Congress passed the Judicial Improvements Act of 1990 (sec. 1367), which provides a statutory basis for supplemental jurisdiction. Subsection (a) authorizes the district courts to exercise jurisdiction over a supplemental claim whenever it forms part of the same constitutional case or controversy as the claim or claims that provide the basis for the district court’s original jurisdiction. The same case or controversy has been viewed as including all claims arising out of a single transaction or occurrence or related series of transactions or occurrences.

Two types of Pendent Jurisdiction:
1) Pendent Claim: single plaintiff v. single defendant [United Mine Workers v. Gibbs]
2) Pendent Party: the addition of a brand new party to a case, over which there is no independent federal source of jurisdiction.

Under section 1367(b), federal courts may not exercise supplemental jurisdiction over parties through F.R.C.P rules 14, 19, 20 and 24: (note: this ensures that complete diversity is still maitained!):
1) Claims against third party defendants (pursuant to Rule 14)
2) Compulsory joinder (Rule 19(a)). Neither a claim against such a person, nor a claim by that person, comes within the supplemental jurisdiction in a diversity only case.
3) Rule 20 joinder. (permissive joinder).
4) Rule 24 intervention.

Claims over D’s still allowed under 1367:
1) Compulsory counterclaims: Rule 13(a).
2) Additional parties to compulsory counterclaims: Rule 13(h) joinder of additional parties to compulsory counterclaims.
3) Cross claims: Rule 13(g) 4) Impleader: Rule 14
5) Class actions under 23 [only the named class representative must satisfy the citizenship requirement of 1332, but all all class members must satisfy the amount in controversy requirement.

Discretionary rejection of supplemental jurisdiction under sec. 1367(c) can occur when:
1) The claim raises a novel or complex issue of State law
2) The claim substantially predominates over the claim or claims over which the district court has original jurisdiction
3) The district court has dismissed all claims over which it has original jurisdiction
4) In exceptional circumstances, if there are other compelling reasons for declining jurisdiction. (c) of 1367 codifies the factors that the Supreme Court has recognized as providing legitimate bases upon which a district court may decline jurisdiction over a supplemental claim, even though it is empowered to hear the claim. Four specific factors are listed. As under current law, (c) requires the district court, in exercising its discretion, tto undertake a case specific analysis. If pursuant to (c), a district court dismisses a party's supplemental claim, a party may choose to refile that claim in state court. Then the federal district court, in deciding the party's claims over which the court has retained jurisdiction, should accord no claim preclusive effect to a state court judgment on the supplemental claim. It is also possible that, if a supplemental claim is dismissed pursuant to this subsection, a party may move to dismiss without prejudice his or her other claims for the purpose of refiling the entire action in state court.

Under (c), a district court may dismiss a supplemental claim if it raises a novel or complex issue of state law, substantially predominates over the claim or claims over which the district court has original jurisdicttion, or if tthe district court dismissed all claims over which it has original jurisdiction and judirical efficiency does not clearly favor adjudicating the supplemental claim. Additionally, the subsection accommodates exceptional circumstances, not defined, in which grounds for dismissal of the supplemental claim may be compelling.

Sec. 1367 (d) states: period of limitations for any supplemental jurisdiction claim shall be tolled while the claim is still pendind AND for a period of 30 days after it is dismissed unless state law provides for a longer toll. The purpose is to prevent the loss of claims to statutes of limitations where state law might fail to toll the running of the period of limitations while a supplemental claim was pending in federal court.

Rule 24 Intervention

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an actin: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or 92) when an applicant's claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.

(c) Procedure. A person desiring to intervene shall serve a motion to intervene upon the Parties as provided in Rule 5. The motion shall state the grounds therefor and shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought. The same procedure shall be followed when a statute of the United States gives a right to intervene. When the constitutionality of an act of Congress affecting the public interest is drawn in question in any action to which the United States or an officer, agency, or employee thereof is not a party, the court shall notify the Attorney General of the United States as provided in Title 28, U.S.C. sec. 2403. When the constitutionality of any statute of a State affecting the public interest is drawn in question in any action in which that State or any agency, officer, or employee thereof is not a party, the court shall notify the attorney general of the State as provided in Title 28, U.S.C. sec. 2403. A party challenging the constitutionality of the legislation should call the attention of the court tto its consequential duty, but failure to do so is not a waiver of any constitutional right otherwise timely asserted. Intervention provides a means for an outsider who has an interest in a lawsuit to voluntarily join the suit as a party.

Intervention is good for at least three reasons:

1) Reduces court time and court clog.
2) Prevents inconsistencies in fact finding and law determination tthat might occur if the decisionmaker separately considered the issues combined for consideration through intervention.
3) Integration of similar issues into one acttion can avoid complicated issues of collateral estoppel.

Planned Parentthood v. Citizens For Community Action (page 107)

Upon filing a timely application for intervention as of right under Rule 24(a)(2), the applicant is entitled to intervene if he satisfies the following three part test: (1) That he has a recognized interest in the subject matter of the primary litigation, (2) that his interest might be impaired by the disposition of the suit, and (3) that his interest is not adequately protected by the existing parties. In regard to the first requirement, the interest identified must be more than peripheral or insubstantial; the applicant must assert a "significantly protectable interest." Here, there was an interest in property, which is a fundamenttal interest, and court says it is significantly protectable interest. The other two requirements are also met. Some courts hold that a party seeeking to intervene need not demonstrate that he has standing in addition to meeting the requirements of Rule 24 so long as there exists a justiciable case and controversy between the parties already in the lawsuit. Other courts disagree. Courts have held that an intervenor could not pursue an appeal after the principal defendant decided not to appeal further without demonstrating standing.
U.S. v. Reserve Mining Co. (page 114; D. of Minnessota)
It need not be shown positively that representation will be inadequate. It is sufficient if it is shown that it may be inadequate. Here, court allows many parties to intervene both as defendants and as plaintiffs in the suit. Cour, for purposes of efficiency, sets up criteria for how the parties will work together [see page 124]. Intervention requires a timely application. In Stalworth v. Monsanto Co., the 5th Circuit set out the four factors for judging timeliness:
1) time the intervenor know or should have known of his interest in the case;
2) prejudice to existing parties resulting from the delay in seeking intervention;
3) prejudice to the intervenor if intervention is denied, and
4) unusual circumstances militating for or against a finding of timeliness.
Martin v. Wilks (page 128; Supreme Court)

One cannot be precluded from challenging something because one was not a party to a prior proceeding over that thing. Here, white firefighters could not be precluded from challenging employment decisions taken pursuant to the decrees because these firefighters had not been parties to the proceedings in which the decrees were entered.
Civil Rights Act of 1991 modified this case. If any of these people have actual notice and an adequate opportunity to be heard and they do not intervent, then they cannot bring a separate lawsuit later. If representative of these people shows up, then you are also barred.



William Gluckin & Co. v. International Playtex Corp. (Ct. App. 2nd Circuit; page 148)

The general rule is that the first suit should have priority “absent the showing of balance of convenience in favor of the second action” or unless there are special circumstances which justify giving priority to the second. Here, the balance of convenience was toward the second suit.[page 151 listts 14 reasons.] Here, stay against the first suit was ok.

Semmes Motors, Inc. v. Ford Motor Co. (page 153)

Where the party seeking to preserve the primacy of the first court moves the second court to stay its hand rather than asking the first court to enjoin prosecution of the second case, there is no reason why the result should be different. Whatever the procedure, the first suit should have priority absent the showing of balance of convenience in favor of the second action [Matter v. Louis Marx] [this is the Ford dealership termination case]


Rule 42 Consolidation; Separate Trials

(a) Consolidation. When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
(b) Separate Trials. The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any claim, cross claim, counterclaim, or third party claim, or of any separate issue or of any number of claims, cross claims, counterclaims, third party claims, or issues, always preserving inviolate the right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States. Consolidation is permitted as a matter of convenience and economy in administration, but does not merge the suits into a single cause, or change the rights of the parties, or make those who are parties in one suit parties in another. [Johnson v. Manhattan Railway Supreme Court].
Consolidation can only take place when the actions are pending in the same division of the same federal district court. Advantages of consolidation:

easier to combine cases (more convincing for jury)
pooling resources Disadvantages of consolidation:
loss of control over litigation
loss of fees by plaintiff’s lawyers
group trials generally result in lower verdicts per person
may be inefficient to try them all together. So, you may have to split up trials at some point (i.e. combined liability trial and separate trials on damages.)

Katz v. Realty Equities Corp. of New York (page 160)

Each case in which it may appear desirable to consolidate complaints in different actions must be evaluated on its own facts with close attention to whetther the anticipated benefits of a consolidated complaint outwweigh potential prejudice to the parties. Here, the appellants have not been prejudiced as a result of the district courtt’s order requiring the filing of a consolidated complaint for pretrial purposes. Consolidation can create an action that very much resembles a class action, but with a few differences:

consolidation is restricted to pending cases and cannot encompass “future” parties as can a class action.

parties cannot opt out of a consolidated case, as they can in a 23(b)(3) class action.

the standards for award of attorneys fees may be different.

28 U.S.C. sec. 1404 Change of Venue

(a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion of hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.
(c) A district court may order any civil action to be tried at any place within the division in which it is pending.
(d) As used in this section, “district court” includes the United States District Court for the District of the Canal Zone; and “district” includes the territorial jurisdiction of that court. As amended Oct. 18, 1962, Pub.L. 87 845, sec. n9, 76A Stat. 699.

This is a gathering mechanism. Once you gather cases into the same district, you can use Rule 42 to bring the cases together into the same action. Either plaintiff or defendant can move to transfer.

Ginsey Industries, Inc. v. I.T.K. Plastics, Inc. (page 173)

In considering a motion to transfer, a court must first determine that the transferee discrict is a district where the action “might have been brought.” Next, the question is whether the balance of convenience weighs decisively in favor of one of the districts. The rule is that unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed [Gulf Oil v. Gilbert Supreme Court]. Here, transfer is prompted by efficiency. A sec. 1404(a) motion can be made at any time, although a delay is a factor weighing against granting. At least in diversity cases, the court to which case has been transferred must apply the law that would have been applied in the court that the action was transferred from [Van Dusen v. Barrack, page 175]

Unresolved issues after Van Dusen:

which court’s law applies when you are dealing with federal question cases?
Typically, defendants move to transfer venue since plaintiffs pick the best forum
for them. Who’s law applies when the plaintiff moves to transfer? Ferens v. John

Deere held that Van Dusen applies even if the transfer is requested by the plaintiff.


A federal court has no power to transfer to another sovereign court, and dismissal may be the only course in such a situation, since the alternative foreign or state jurisdiction can be sought by the parties. In Gilbert, the Supreme Court set out a series of considerations to guide the district court in applying the forum non conveniens doctrine: initially, the district court must find that there exists an adequate alternative forum for the litigation; the court must then balance factors relative to the convenience of the litigants, referred to as the private interests, and factors relative to the convenience of the forum, referred to as the public interests, to determine which available forum is most appropriate for trial and resolution.

Factors which bear on the private interest of the litigants include: the relative ease of acces to sources of proff; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of remises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions toÝ
he enforceability of a judgment if one is obtained. The courts should weigh relative advantages and obstacles to trial [Gilbert]

De Melo v. Lederle Laboratories (page 177; 8th Cir. Ct. App.)

Here, court said that Brazil was the proper forum for the suit and not Minnessota, and dismissed the Minessota action, on several conditions agreed to by defendant in reference to the suit in Brazil.


sec. 1407 governs Multidistrict litigation. It provides that “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any districtt for coordinated or consolidated pretrial proceedings.” The transfers are made by the Judicial Panel on Multidistrict LItigation which consists of seven circuit and district judges designated by the Chief Justice of the U.S. (no two of whom may be from the same circuit.) Further provisions require that at or before completion of pretrial proceedings, each action shall be remanded to the district in which it originated, “unless it shall have been previously terminated.”

In Re Aviation Products Liability Litigation (page 188; Panel on Multidistrict Lit.)

Here, there were civil actions involving one or more common questions of fact which were pending in more than one district (helicoptter engines). Transfer pursuant to 1407 is for pretrial purposes only and the fact that all parties are not amenable to suit in a particular district does not prevent transfer to that district for pretrial proceedings where the prerequisites of 1407 are otherwise satisfied. Venue, then, is not a criterion in deciding the propriety of transfer under 1407. Here, court says the Indiana court is the baset transferee site, since it is both geographically good and the judge knew the most about the cases. 1407 also authorizes the Panel to “separate any claim” from the transferred action and to remand that claim to the transferor district. Transferee judge has authority to decide all pretrial motions, including motions that may be dispositive, such as motions for judgment approving a settlement, for dismissal, for judgment on the pleadings, for summary judgment, for involuntary dismissal under Rule 41(b) and to quash service of process.

In Re Uphohn Co. Antibiotic Cleocin Products Liability Litigation (page 200; 6th Cir)

ISSUE: To what extent can a transferee judge in proceedings under 1407 vacate and modify protective orders earlier entered by transferor courts, where those orders enjoin the use of discovery materials obtained through the federal litigation by others not parties to the multidistrict litigation.

HELD: The transfer divests the transferor court of any further authority, at least in matters pertaining to discovery. The power of the transferee judge includes the power to modify a protective order. Some courts hold that transferee courts should decide substantive issues in the way the transferor courts would have decided. Other courts disagree.


Either federal or state court, in duplicative cases, can decline jurisdiction or stay the proceedings before it so that the other court can proceed, or can enjoin the parties from proceeding in the other court, thus allowing it to proceed unimpeded with the case before it. Under the constitution, states cannot limit the jurisdiction of the federal courts. Thus, they cannot enjoin proceedings in the federal court. Federal courts, in many cases, can enjoin state court proceedings.


Under the Burford type abstention , a court essentially defers to a state’s overriding interest in the matters sub judice, and , concomittantly, to the supedrior competence of the state’s courts to adjudicate such matters. Thus, usually at issue in Burford type cases are state regulatory matters such as regulation of natural resources, education, or eminent domain, where a paramount state interest is apparent, where the history of state judicial experience in the area indicates special reliability, or, even absent an established regulatory scheme, where the intrustion of federal adjudication mightt handicap state government. There is no requirement of a state issue nor unclarity in pertinent state law. Rather, tthe court relegates a federal issue to state court adjudication because the federal issue touches some overriding sttate interest. Moreover, a court abstaining under Burord normally dismisses the case. Under the Pullman type abstention, the goal is to avoid unnecessary federal constitutional challenge to state law. This requires tthe presense of a state issue and unclarity in pertinent state law. Also, the proceedings are stayed.
An Englandóó reservation allows a litigant to return to the federal court for a de novo determination of its reserved federal claims once the state proceedings are over. It ordinarily avoids the preclusive effect of an adverse state determination, even one that directly rejects its stayed federal claims. You would never use Pullman abstention in states where there is a certification procedure.

BT Investment Managers, Inc. v. Lewis (page 209; 5th Cir. Ct. App.)

When a state statute can be challenged under essentially identical state and federal constitutional provisions, abstention is improper. Burford type abstention is improper here. There is no overriding state interest, special state competence, or threat to Florida’s administration of their own affairs that would warrant denial to the chosen federal forum.


Apply only if there is related state court proceedings.

Pennzoil Co. v. Texaco, Inc. (page 214; Supreme Court)

ISSUE: Whether a federal district court lawfully may enjoin a plaintiff who has prevailed in a trial in a state court from executing the judgment in its favor pending appeal of that judgment to a state appellate court.
HELD: Younger abstention applies when the State’s interests in the proceedings are so important that exercise of the federal judicial power would disregard the comity between the States and the U.S. Government. Another reason is to avoid unwarranted determination of federal constitutional questions. Federal injunctions would interfere in these cases with the execution of state judgments, and they would do so on grounds that challenge the very process by which those judgments were obtained. So long as those challenges relate to pending state
proceedings, proper respect for the ability of state courts to resolve federal questions presented in state court litigation mandates that the federal court stay its hand. Here, Texaco apparently did not give the Texas courts an opportunity to adjudicate its constitutional claims, and because Texaco cannot demonstrate that the Texas courts were not then open to adjudicate its claims, there is no basis for:
concluding that the Texas law and procedures were so deficient that Younger abstention is inappropriate. The District court here should have abstained.
[ Younger concerned criminal proceedings, and courts equiate that to civil.

In dissent, Brennan and Marshall argued that it generally concerns criminal proceedings.] Younger only applies to pending state proceedings. However, the state proceeding may be initiated after the filing of the federal suit. A state may wave the Younger doctrine, since it is not jurisdictional. The Colorado River abstention is premised entirely on efficiency grounds. Criticisms of Younger:
would stay courts be very insulted? probably not
There is a question about parity. Maybe state judges are not as competent and sensitive in dealing with federal constitutional matters as is the federal court.
State trials will generally not receive review in federal court. Younger insures that there will rarely be federal review of state decisions.


Life Link International, Inc. v. Lalla (page 227)

The court should consider [as per Colorado River] several factors: (a) which court first assumed jurisdiction over any property; (b) the inconvenience of the federal forum; (c) the desirability of avoiding piecemeal litigation; and (d) the order in which concurrent jurisdiction was obtained. Also, the adequacy of the state court proceedings ttto protect the parties’ rights must be considered, as well as whether issues of federal law are presented, and whether the attempt to invoke federal jurisdiction was done in bad faith.
[Cone v. Mercury]. Thus, the key is WISE JUDICIAL ADMINISTRATION.

Most courts have found that when defendant wants a federal court to hear his counterclaim, we ought to bypass Colorado River efficiency and give him the opportunity to raise the counterclaim in federal court.


28 U.S.C. sec. 2283 Stay of State Court Proceedings

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
The first exception “as expressly authorized by Act of Congress” has been interpreted as not requiring specific reference to 2283 in a statute {Mitchum v. Foster Supreme Court, Page 234].

The second exception “where necessary in aid of its jurisdiction” has traditionally been applied when the “federal court’s jurisdiction is in remóó and the state court action may effectively deprive the federal court of the opportunity to adjudicate as to the res.” [Standard Microsystems v. Texas Instruments Supreme Court, page 234].

The third exception “to protect or effectuate its judgments” allows an injunction to prevent relitigation of a suit in which a judgment has been entered. Rule 54(a) defines judgment as “any order from which an appeal lies.”
This applies principally in two cases. (1) to prevent re litigation of a claim that has been decided in federal court. You can simply also raise res judicata as a defednse in the second action. Federal court can enjoin B from raising a claim in state court that should have been a compulsory counterclaim in the first sui in federal court. The effect of 2283 cannot be avoided by simply enjoining a party from prosecuting his state suit, as opposed to having the federal court stay the state court proceeding. However 2283 does not prohibit an injunction against a state officer who is about to institute proceedings to enforce an unconstitutional statute nor against state proceedings in which the state court is not performing a judicial function.

Standard Microsystems Corp. v. Texas Instruments, Inc. (page 234; 2nd Cir. Ct. App.)

The suits at issue here are in personam actions, brought on successive business days in two different courts, disputing the interpretation of a contract. The existence of the state court action does not in any way impair the jurisdiction of the federal court or its ability to render justice. In Atlantic Coast Line Railroad Co. v. Locomotive Engineers, the Supreme Court said that “any doubts as to the propriety of a federal injunction against statte court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy.”

Bruce v. Martin (page 241; S. D. New York)

Here the threat to the court’s jurisdiction arises not from the prospect of parallel proceedings and the potential for a prior state decision to be asserted as res judicatta.

Rather, the potential harm to the court’s jurisdiction arises from multiple actions in different states. A court of equity may grant an injunction to avoid mulotiple actions at law if the actions involve the same issues of law and fact so that the decisions in one action will be determinative of all. Here, injunction is granted, because commencement of multiple lawsuits would interfere with proceedings of this court “as to seriously impair this court’s flexibility and authority to decide this case.”

Here, there were no oending state court suits, only threatened suits, and therefore the Anti Injunction Act did not apply. Nevertheless, the court considered Anti Injunctiton Act precedents.



Rule 23(a) sets out for prerequisites for a class action generally termed numerosity, commonality, typicality, and representativeness.

Kline v. Coldwell, Banker & Co. (page 275; 9th Cir. Ct. App.)

Here, attorney probably made up the idea of class action, since damages for high commissions in real estate sales were only several thousand dollars, while a class suit could bring in $750 million. Court refused to certify a 23(b)(3) class. Sometimes, even if class action not beneficial to class, deterrence suggests that it ought to be allowed anyway, even if attorney is the one making the most money.


Simer v. Rios (page 282; 7th Cir. Ct. App.)

Here, serious problems existed in defining and identifying the members of the class. Here “state of mind” makes it diffucult to define. [also see footnote on page 285 fn. 25]. Court rejects certification under 23(b)(3).

Dissent argues that w/o class certification, the injured will not receive relief, since suits would be impractical for $250. “fail safe class” [page 291] is a class which would be bound only by a judgment favorable to plaintiffs but not by an adverse judgment. [i.e. persons injured by defendant's illegal price fixing scheme.] So, if P wins, all class members can enforce. If D wins, they are not illegally price fixing and so other plaintiffs can claim the first class excluded them.


Board of Education of Township High School v. Climatemp, Inc (page 292; N.D. Ill)

Here, the number of entities potentially victimized is not so numerous [50 or so] that intervention or joinder of plaintiffs is impractical. While joinder has been held to be impracticable with as few as 40 members of a class, class actions have not been
maintainable with as many as 350 potential members. There are no magic number; should consider other factors such as geographical location of the potential plaintiffs. Some courts have found numerosity satisfied “if joinder would result in a burden to the case, be it the cost to the plaintiff of serving each defendant, or the taxation of court resources due to numerous motions filed by several hundred defendants.” [Alexander Grant & Co. v. McAlister]

Some courts have also found impracticability of joinder if the class is so large that individual influence over pleading, discovery, and litigation strategy is effectively eliminated. [Alexander Grant v. McAlister].

Some courts hold that reluctance by class members to undertake litigation or a small monetary interest are grounds for satisfyin the numerosity requirement. [Arkansas v. Board of Education certified 17 black teachers.] Other courts disagree, such as Christiana Mortgage v. Delaware Mortgage Bankers Association, where joinder was not found impracticable where a class action was sought on behalf of 28 mortgage brokers alleging antitrust violations by the defendant association. The court found no relucttance by individual class members to sue, and since all the class members were “located within a small geographic area, any other interested mortgage brokers could seek joinder into the present suit rather than commencing a new action in a different district, and could thereby minimize the duplication of discovery and pre trial proceedings.]


The issue of commonality is often discussed in Rule 23(b)(3) cases in conjunction with the issue of predominance of common questions

Blackie v. Barrack (page 296; 9th Cir. Ct. App.)

ISSUES: (1) whether a common question of law or fact unites the class; (2) whether direct individual proof of subjective reliance by each class member is necessary to establish 10b 5 liability in this situation; and (3) whether proof of liability or damages will create conflicts among class members and with named plaintiffs sufficient to make representation inadquate.
HELD: The overwhelming weight of authority holds that repeated misrepresentations of the sort alleged here satisfy the “common question” requirement. Confronted with a class of purchasers allegedly defrauded over a period of time by similar misrepresentations, courts have taken the common sense approach that the class is united by a common interest in determining whether a defendant’s course of conduct is in its broad outlines actionable, which is not defeated by slight differences in class member’s positions, and that the issue may profittably be tried in one suit. [see footnote on pages 298 299.] The amount of damages is invariably an individual question and does not defeat class action treatment. Individual questions of reliance are likewise not an impediment subjective reliance is not a distinct element of proof of 10b 5 claims of the type involved in this case. Here, any conflict between class members is peripheral and Ý
substantially outweighed by the class members’ common interests. Subclassing can sometimes be a solution to commonality problems caused by potential differences between class members. By subclassing, additional named plaintiffs can be added to the suit who represent a subclass with a more discrete commonality of interests. Under 23(c)(4)(B), a class may be divided into subclasses and each subclass treatted as a class with the provisions of the rule to be construed and applied accordingt to each class. Thus, there must be a proper class representative for each subclass, and all other requirements of Rule 23 must be satisfied.


General Telephone Company of the Southwest v. Falcon (page 321; Supreme Court)

It is permissible for an employee complaining of one employment practice to representt another complaining of another practice, if the plaintiff and the members of the class suffer from essentially the same injury [this is so in the 5th Circuit]. Here, claims are based on national origin employment discrimination of Mexican Americans in hiring and promotion. Here, there was no typicality as to hiring discrimination and class should not have been certified. Court remands for further proceedings, instead of dismissing the class claim. Emploment discrimination typicality and commonality issues are on page 328, note 3!!


Hansberry v. Lee (page 339; Supreme Court)

Members of a class not present as parties to the litigation may be bound by the judgment where they are in fact adequately represented by parties who are present, or where they actually participate in the conduct of the litigation in which members of the class are present as parties, or where the interest of the members of the class, some of whom are present as parties, is joint, or where for any other reason the relationship between the parties present and those who are absent is such as legally to entitle the former to stand in judgment for the latter. Here, a restrictive agreement which required 95% signatures but had 54%, was stipulated to contain 95% in an earlier lawsuit which was lost. Court held that that stipulation cannot bind the parties here, since they were not members of that class.

Piel v. National Semiconductor Corp (page 343; E.D. Pennsylvania)

3rd Circuit requires representatives to demonstrate (1) they have no interests which are antagonistic to other members of the class, and (2) their attorney is capable of prosecuting the instant claim with some degree of expertise. [Wetzel v. Liberty Mutual].

The Wetzel óórule is that a class representative need not be the best of all possible representatives but rather one that will pursue a resolution of the controversy with the requisite vigor and in the interest of the class. A case by case approach is required.
Also, class representatives need to be adequately financed.


the prosecution of separate actions by or against individual members of the class would create a risk of
(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or
(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of tthe interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.


This test looks to the impact on the party opposing the class and whether separate actions would subject it to incompatible standards. Typical cases are suits by taxpayers to invalidate municipal action or suits by shareholders to compel the declaration of a dividend. Defendant classes may also be suitable for Rule 23(b)(1)(A) treatment. Rule 23(b)(1)(A) is designed to protect against the nonclass party ‘s being placed in a stalemated or conflicted position and is applicable only to actions in which there is not only a risk of inconsistent adjudications but also where the nonclass party could be sued for different and incompatible affirmative relief. [Employers Insurance of Wausau v. FDIC E.D. Tenn].

Thus, in many cases “incompatible standards” classification is sufficient. If class members have already filed individual actions in state court, the Anti Injunction Act prevents the federal court from enjoining these class actions in favor of a (b)(1) action.

RULE 23(b)(1)(B) “LIMITED FUND” CLASS ACTIONS There are no opt out provisions for this class certification.
In Re School Asbestos Litigation (page 353; 3rd Cir. Ct. App.)

Here P argued that punitive damage awards would deplete D’s coffers if cases proceeded individually. District court certified a class based on punitive damage awards, but circuit court said that class was under inclusive, since it omitted other parties and this poses an obstacle to awards of punitive damages to other parties. Court says that under inclusiveness in other cases may not be enough to dismiss a class. Here, P never really proved the likely insolvency of the defendant beyond an assertion.


23(b)(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole

Rice v. City of Philadelphia (page 368; E.D. Pennsylvania)

Rule 23(b)(2) is designed to cover cases in which the primary concern is the grant of injunctive or declaratory relief. In such cases, there is no requirement that notice be given to all of the class members, and there is no opportunity for putative class members to “opt out”. Moreover, the precise definition of the class is relatively unimportant. If relief is granted to the plaintiff class, the defendants are legally obligated to comply, and it is usually unnecessary to define with precision the persons entitled to enforce compliance, since presumably at least the representative plaintiffs would be available to seek, and interested in obtaining, follow up relief if necessary. Defining a class as consisting of all persons who have been or will be affected by the conduct charged to the defendants is entirely appropriate where only injunctive or declaratory relief is sought. But, it is clearly unsatisfactory where damage claims are asserted. It is true that damages may be awarded as ancillary or incidental relief in a (b)(2) class action for injunctive or declaratory relief. But the cases in which this has been permitted appear to be cases in which the award of damages flows automatically from the grant of injunctive or declaratory relief, and in which the damages are subject to ready calculation on the basis of a formula or principles uniformly applicable to the class. Here, this is not the case. There are no advantages to P to maintain this as a class action. Intervention can best achieve the damages award goals. Thus, court says case could proceed as (b)(2) but only on injunctive and declaratory relief, and not on the question of damages.

The main operative differences between (b)(2) and (b)(3) class actions are that the former are mandattory class actions and it is not necessary for the court to find that common issues predominate to certify the class, and that in the latter class members are entitled to notice and an opportunity to opt out. Offensive collateral estoppel
1) A v. B A prevails
2) A v. B
Suppose 2nd suit considers some issued decided in suit 1 such as where B is from.
will be collaterally estopped from litigating that issue in the second lawsuit.
1) A v. B
2) C. v. B
This is offensive use of collateral estoppel, when C prevents B from re litigating certain issues.


Rule 23(b)(3)

the court finds that the questions of law or fact common to the members of the class predominate over any question affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action.

Mertens v. Abbot Laboratories (page 373; D. New Hampshire)

Here, class action is denied. A general determination of a right to recover could not aid any particular plaintiff, until liability and damages to that plaintiff are also determined. Indeed, disparate diagnosed injuries were suffered by each of the named female plaintiffs in this action. What could be established by a plenary trial of the scientific data would not be helpful to an individual plaintiff until causation of a particular personal injury by a particular defendant was also established. It is difficult therefore to perceive how the expense of individual litigation could be avoided, class action or not. Furthermore, the argument based upon litigation expense pales in light of the ad damnum sought by Plaintiffs in this action. Assuming that predominant common questions can be found, 23(b)(3) directs the court to determine whether class acting treatment is superior to individual litigation.

Jenkins v. Raymark Industries, Inc. (page 379;5th Cir. Ct. App.)

Here, district judge certified class members for purposes of applicability of the “state of the art” defense in asbestos litigation. Commonality threshold is not high rule requires only that resolution of the common questions affect all or a substantial number of the class members. Typicallity and representativeness are also met here. So, this is fair here.


Marcera v. Chinlund (page m387;2d Cir. Ct. App.)

Here, defendant class, represented by one sheriff, should have been certified because the defenses are typical of those of the other sheriffs and their interests would be protected. The differences among jails do not render the cost and security defenses raised by the sheriff atypical of those of his class. Further, Rule 23(a)(4) does not require a willing defendant representative, but an adequate one. Here, the legal issues as to liability are entirely common to members of the defendant class, and there is little reason to fear unfairness to absentees.

Thillens, Inc. v. Community Currency Exchange Assoc. of Illinois (page 392; N.D. Ill)

A defendant class may be certified if due process is satisfied. There are several rules common to all certifications of defendant classes: (1) a defendant class will not be certified unless each named plaintiff has a colorable claim against each defendant class member; (2) a defendant class will not be certified under 23(b)(3) without a clear showing that common questions do in fact predominate over individual issues; (3) the requirement that each named plaintiff must have a claim against each defendant may be waived where the defendant members are related by a conspiracy or “juridical link” ( some legal relationship which relates all defendants in a way such that single resolution of the dispute is preferred to a multiplicity of similar actions.). Absent such juridical link, a defendant class fails the Article II test requiring a case or controversy to support the assertion of jurisdiction.

Here, there are both legal and factual questions common to the proposed class of defendants. It is sufficient for class certification that the common questions be either of fact or law. Not all factual or legal questions raised in the lawsuit need be common so long as a single issue is common to all class members. There is further a typicality of defenses. Also, the Association is an adequate representative of the class. Under 23(a)(4), the test is: (1) the representative must be able to conduct the litigation and (2) the representative’s interests must not be antagonistic to those of the class members. Although the representative need not be a member of the class, there is the further requirement that the class representative must have injured the plaintiff in the same way as other defendants have injured him. Here, that is the case. The real concern with a reluctant representative should be for his ability to carry the expense and other practical burdens of a class defense. Here, they are able to do so.


Simer v. Rios (page 401; 7th Circuit Ct. App.)

Fluid recovery is used where the individuals injured are not likely tto come forward and prove their claims or cannot be given notice of the case. In a fluid recovery the money is either distributed through a market systtem in tthe way of reduced charges or is used to fund a project which will likely benefit the members of the class. But, a case by case approach is necessary to such awards. The focus is whether the use of such a mechanism is consistent with the policy or policies reflected by the statute violated. In other words, to what extent the statute embodies policies of deterrence, disgorgement, and compensation. First, the focus is on whether a fluid recovery is needed to deter the defendant from illegal conduct. The answer here is no. CSA has been charged with administering a large and complex program and it is inevitable that problems arise.

There is no indication that CSA’s actions have been in bad faith or with the specific intent of disobeying itts statutory obligation. The second factor, that of disgorging illegally obtained profits, also counsels against use of fluid recovery. Those cases where a corporate defendant engages in unlawful conduct and illegally profits is most appropriate for a fluid recovery. Here, neither CSA, nor any shareholders, benefitted financially from the alleged illegal conduct. The money CSA refused to spend merely reverted to the Treasury. Thus, this is not a case where the defendant would retain illegally obtained profits. Finally, whether the statute has a compensatory factor is important. Here it does, but Congress funded a much larger program and therefore the absence of fluid recovery will not deprive plaintiffs of relief.


23(c)(2) & (d)

Eisen v. Carlisle & Jacquelin (page 425; Supreme Court)

Rule 23(c)(2) provides that, in any class action maintained under (b)(3), each class member shall be advised that he has the right to exclude himself from the action on request or to enter an appearance through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required to direct to class members “the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” Thus, individual notice must be sent to all class members whose names and addresses may be ascertained through reasonable effort. Here, the names and addresses of 2,250,000 class members are easily ascertainable, and there is nothing to show that individual notice cannot be mailed to each. Thus, this is clearly the “best notice practicable” within the meaning of Rule 23(c)(2). Nothing says notice should be given only to the extent the particular plaintiff can afford it Petitioner must bear the cost of notice to the members of his class. Where petitioner will not bear cost of notice, case can be dismissed, as the court orders done here. sample of a notice is on page 431.


In Re Fibreboard Corp. (page 888; 5th Cir. Ct. App.)

Here, there are ttoo many disparities among the various plaintiffs for ttheir common concerns to predominate. The plaintiffs suffer from different diseases, some of which are more likely to have been caused by asbestos than others. The plaintiffs were exposed to asbestos in various manners and to varying degrees. The plainttiff’s lifestyles differed in material respects. Thus, Phaze II, which selected 41 representative plaintiffs for trial out of over 2,000 and then would base future awards for the others on the average from these trials was not allowed by the court.

Cimino v. Raymark Industries, Inc. (page 892; E.D. Texas)

Damages must be determined in the aggregate for all cases, otherwise the courts cannot try asbestos cases. Here, the judge revised the proposal from the Phaze II of the previous case (above.) Look at notes, page 37 for various proposals to streamline process.


The American rule excludes counsel fees from recoverable costs. Under the English rule, counsel fees are recoverable costs in a suit. A common fund is where the litigation activities of one person created a fund for a number of other persons or conferred a benefit on them. Thus, courts allow the litigant to recover from the fund the attorney’s fees incurred in creating the fund. Defense class members may also be required to contribute to the counsel fees of the representative of the defendant class. The Supreme Court has held that counsel fees can be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. [fee shifting]. The bad faith must be found in the conduct of the litigation, not the conduct giving rise to the underlying claim. Where plaintiff plays the part of a private attorney general, such as interest groups suing for particular actions, there can be fee shifting [Alyeska Pipeline v. Wilderness Society ; page 775]

There is nothing, despite the American rule, to keep parties from providing in a contract that in the event of litigation arising under the contract the prevailing partty shall recover his attorney’s fees. Some states provide that where the contract confers this right on only one party, it should nevertheless be bilateral. Legislatures may make statutory exceptions to the American rule, and award fee shifting without bad faith on the part of the other party.

Antitrust. Successful plaintiffs in antitrust suits are entitled to recover their attorneys’ fees as well as treble damages. 15 U.S.C.A. sec. 26.

Civil Rights. Under the 1964 Civil Rights Act, prevailing parties are entitled to recover their attorneys’ fees. Also, Civil Rights Attorney’s Fee Awards Act of 1976 authorizes the district courts to award a reasonable attorney’s fee to prevailing parties in civil rights litigation


In Lindy Brother Builders v. American Radioator & Standard Sanitary, the 3d Cir. Ct. App.

emphasized an hourly approach, concluding tthat the product of hours spent on a case times hourly rate “should be the lodestar of the court’s fee determination.” This figure could then be increased or decreased on the basis of the quality of the lawyer’s work and success, and on the basis of the contingency of the action.

Reasons to reject lodestar:
1) takes a lot of time to determine what a reasonable hourly rate is
2) in common fund, there is no adversarial contest over what is a reasonable attorney’s fee.
3) the fee is usuallly in 20 30% range anyway
4) lodestar is thought to encourage long hours and discourages incentive to settle early. The rate of compensation for public interest lawyers is generally measured by the prevailing market rates that private lawyers would receive (associates.)

5th Circuit adopted a 12 factor billing approach:
1) the time and labor required
2) the novelty and difficulty of the questions
3) the skill requisite to perform the legal service properly
4) the preclusion of employment by the attorney due to acceptance of the case
5) the customary fee
6) whether the fee is fixed or contingent
7) time limitations imposed by the client or the circumstances
8) the amount involved and the results obtained
9) the experience, reputation, and ability of the attorneys
10) the “undesirability” of the case
11) the nature and length of the professional relationship with the client
12) awards in similar cases
Hensley v. Eckerhart (page 778; Supreme Court)

ISSUE: Whether a partially prevailing plaintiff may recover an attorney’s fee for legal services on unsuccessful claims.
HELD: Plaintiffs may be considered prevailing parties for attorney’s fees purposes if they succeeded on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit [Nadeau v. Helgemoe]. Should start with the number of hours reasonably expended on the litigation, multiplied by the reasonable hourly rate. Should exclude hours that were not reasonably expended. Court can adjust this fee upward or downward, including the important factor of the “results obtained.” Two questions are important. First, did tthe plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award? The court has discretion. Here, court did not want to separate loosing and winning issues, arguing that many were interrelated, and made one fee award. But, the Supreme Court said that court must evaluate the level of success in comparison to the litigation as a whole. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee. Where a lawsuit consists of related claims, a plaintiff who has won substantial relief should not have his attorney’s fee reduced simply because the district court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. Supreme Court adopted the Lodestar and not the 12 factor test. Supreme Court said that the multiplier for good work should only be used in exceptional cases. Fee awards to be increased/decreased by:
QUALITY ENHANCEMENT. The attorney id well or poor in the trial.
CONTINGENCY ENHANCEMENT. Multiply, using the notion that it was against attorney’s interest to take the case. The Supreme Court has held that a multiplier greater than 1/3 of lodestar requires special consideration and should rarely be used. Disadvantages of lodestar are on page 793.

In Re Activision Securities Litigation (page 794; N.D. California)

In class action common fund cases, the better practice is to set a percentage fee and that, absent extraordinary circumstances that suggest reasons to lower or increase the percentage, the rate should be set at 30%. This will enourage plaintiffs’ attorneys to move for early settlement, provide predictability for the attorneys and the class members, and reduce time consumed by counsel and court in dealing with voluminous fee petitions. [court surveyed the lodestar and 12 step test and found those awards ranged close to the 30% mark anyway.]

Matter of Superior Beverage/Glass Container Consolidated Pretrial (page 797;N.D. Ill)]

The problem with fixed percentages is that they will drastically overcompensate lawyers in some cases and drastically undercompensate them in others. Lodestar has some advantages and disadvantages, but courts should evaluate based on the size of the award/settlement. No fee award should either fleece the class of its recovery or result in a windfall to their lawyers in excess of any efforts those counsel made or risks they ran.

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