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Fortune Favors the Prepared Lawyer: The Benefits of a Trial Plan at the Class Certification Stage
By now, most class action lawyers are familiar with the argument that a court must take a “close look” during the class certification stage in order to ensure that certification is indeed practicable and appropriate. Castano v. American Tobacco Co., 84 F.3d 734, 740 (5th Cir. 1996) (reversing certification decision for failure to assess “how a trial on the merits would be conducted”). This “close look,” or “rigorous analysis,” is not meant as an opportunity to prejudge the merits of the case, but is instead intended to give the court a realistic sneak preview of what trial of the issues will entail.
The latest iteration of Federal Rule 23 acknowledges the importance of the “close look.” Under the 2003 Amendments to Rule 23, it is no longer permissible to take a “certify now, ask questions later” approach. Compare Dec. 1, 1998 Amendment to Rule 23(c)(A) (providing that certification order “may be conditional”) with Dec. 1, 2003 Amendment to Rule 23(c)(A)(1) (deleting reference to conditional certification). Rather, plaintiffs must show at the class certification stage that class-wide proof of common issues exists. As the Advisory Committee noted, “an increasing number of courts require a party requesting class certification to present a 'trial plan' that describes the issues likely to be presented at trial and tests whether they are susceptible to class-wide proof.” Advisory Committee Notes to 2003 Amendment to Fed. R. Civ. P. 23, subdiv. (c) ' 1. Forcing plaintiffs to articulate a realistic trial plan may be a valuable tool for educating the courts (and the parties) as to which cases are doomed to splinter into an endless stream of mini-trials.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.