As you may know, most bloggers have some kind of service that provides a statistical analysis of their site. In addition to telling us how many of you visit, and what you read, and whether you come back, these services also tell us what searches bring (some of) you here. And, over the last year and change, there are certain searches that have recurred enough that I consider them "frequently asked questions." Here are four, with brief answers:
What is the definition of "bet the company" litigation? This is–at least to me–a surprisingly common question. My own working definition is:
litigation where the stakes are so high that a verdict against the company would have serious financial repercussions, including bankruptcy.
Class actions, which transform small-dollar individual claims into multi-million dollar aggregate claims, are often considered to be "bet the company" litigation. Particular kinds of class actions (like those brought under FACTA have been so lopsided in the potential risks, that they have spawned a subspecies of superiority argument sometimes called the "annihilation defense," which argue that when the likely result of a class action would be annihilate the company, it’s not superior to other forms of litigation.
What are good standard class action interrogatories? Well, this will depend on the specific case. However, I would say that the best class action interrogatories unearth individualized facts about the class members’ claims. So they may include:
- What events gave rise to plaintiff’s claim (such as the purchase of a product, the various days that an employee worked overtime).
- When and where those events took place.
- Who witnessed the events.
(For more discussion of class-action interrogatories that work on both sides, see The Class Action Playbook.) I personally have a bias against contention interrogatories. ("List all facts and identify all evidence that support your claim that …") While these can be effective in a trial setting, they are much less so when the largest battle is over class certification. In that case, the opposing party can usually postpone providing a real answer until after class certification has already been briefed. This wouldn’t be a problem if interrogatories were unlimited, but under the Federal Rules of Civil Procedure, they’re not.
(There are some other specialized interrogatories often worth asking if one suspects some conflict of interest or other chicanery. They include: "Identify any third party sources of funding." "Identify your confidential witnesses." "Identify any PR consultants your counsel has employed." And "identify the date you retained your counsel.)
How does one depose a class action plaintiff?
Much as one does for interrogatories, one asks for the individualized facts surrounding the plaintiff’s claim. Among other questions, one can ask:
- the plaintiff to verify the accuracy of her interrogatory responses;
- to describe any policies and procedures she claims are classwide;
- to explain any factual inconsistencies in the discovery she has produced;
- to identify when they first met plaintiffs’ counsel;
- whether they’ve ever been convicted of a felony;
(For more discussion of class-action deposition questions, see The Class Action Playbook.)
What is a defendant class? A defendant class is just what it sounds like, a class action where a plaintiff sues a number of defendants, represented by a single class representative. As one might imagine, while it is theoretically possible to organize a number of defendants into a class so that one may sue them more effectively, in practice, it is extremely difficult.