FRCP 23(a)(4) and 23(g): Challenging or Supporting the Adequacy of Class Representatives and Class Counsel

A live 90-minute CLE webinar with interactive Q&A


Wednesday, November 18, 2020

1:00pm-2:30pm EST, 10:00am-11:30am PST

Early Registration Discount Deadline, Friday, October 30, 2020

or call 1-800-926-7926

This CLE webinar will outline effective techniques and arguments for challenging the adequacy of class representatives and class counsel under FRCP 23(a)(4) and FRCP 23(g), during certification, or even on appeal to have certification revoked.

Description

Certification is doomed unless both class representatives and class counsel can adequately represent the members of a class. Rules 23(a)(4) and 23(g) are inextricably intertwined and are necessary to guard the due process rights of absent class members.

Starting at the pre-certification stage, the defense counsel's goal is to expose facts demonstrating that the named plaintiff, proposed class counsel, or both cannot fairly and adequately protect the interests of class members.

Equally important, class counsel must be qualified, experienced, and generally able to conduct the litigation. Courts have considered numerous factors other than those listed in FRCP 23(g) to withhold approval or even revoke approval of class counsel. All aspects of counsel's relationship with the proposed class representative, defendants, and members of the class in other cases come under scrutiny. Engagement letters and litigation financing arrangements are increasingly the subject of discovery.

Class counsel must be able to prepare for these attacks on their own adequacy and that of the class representative. Proper preparation begins with the vetting of the facts and the proposed class representative before the case is filed and continues throughout the litigation.

Listen as our authoritative panel of class litigators discusses practical techniques for selecting and vetting class representatives and challenging the adequacy requirements under Rules 23(a)(4) and 23(g).

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Outline

  1. Class Counsel’s vetting of the class representatives.
  2. How to prepare the class representatives for challenges to their adequacy.
  3. How to defend against challenges to class counsel’s adequacy under 23(g).
  4. Adequacy of class representative
    1. Conflicts of interest
      1. Type of relief sought
      2. Limited fund
      3. Competing theories of liability and litigation strategy
      4. Class members who benefit from wrongdoing or status quo
    2. Qualifications
      1. Understanding of case, duties
      2. Credibility
      3. Financial resources and third-party funding
  5. Adequacy of class counsel under Rule 23(a)(4)
    1. Counsel's knowledge and experience of substantive law and class actions
    2. Proper staff and adequate resources
    3. Conflicts with other clients
    4. Quality of work product, professionalism, ethics
    5. Procedures governing appointment of class counsel under Rule 23(g)

Benefits

The panel will review these and other key issues:

  • What is the relationship between FRCP 23(a)(4) and 23(g)?
  • How to select and vet class representatives and prepare them for challenges to their adequacy.
  • What parties or third parties are most likely to have relevant information?
  • What practices of counsel in marketing its class action practice are most likely to jeopardize approval?
  • What are the "red flags" suggesting either the class representative or counsel cannot adequately represent the class?
  • What is the trend of courts in "de-certification" of class representatives or counsel even after trial?
  • With what other class criteria does adequacy overlap?

Faculty

Neary, Robert
Robert Neary

Attorney
Kozyak Tropin & Throckmorton

Mr. Neary's practice includes various areas of complex commercial litigation as well as class actions and...  |  Read More

Simson, Sylvia
Sylvia E. Simson

Of Counsel
Greenberg Traurig

Ms. Simson is a litigator with a diverse practice focused on a broad range of complex commercial litigation as well as...  |  Read More

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