The Trial Practice Tips Blog

The gold standard in class-action scholarship for practitioners is Newberg on Class Actions, the 4th edition of which also includes Survey of State Class Action Law by the ABA's Section of Litigation.

Newberg is a very comprehensive treatise and should always be consulted on difficult issues. Unfortunately, the book's comprehensiveness sometimes makes it hard to find specific information. I have also seen instances in which past editions contained text relying on cases that had been overruled long before. This problem has probably been corrected with the latest edition, but be sure to shepardize.

The publications by the National Consumer Law Center are also very well done, although their scope is more limited. Class actions practitioners, whether for the plaintiff or defense, might find value in Consumer Class Actions and Unfair and Deceptive Acts and Practices.

All of these books have materials of interest specifically to Illinois lawyers. In addition, the Illinois Institute for Continuing Legal Education (IICLE) publishes Class Actions, which was updated in 2004.

Class-action defendants often ask a judge to "bifurcate" discovery so that it's undertaken in two stages: first, discovery pertinent to class certification issues; second, discovery pertinent to the merits of the classwide case. The idea is that proceeding in this way will be less burdensome for the defendant.

In my experience, plaintiffs are wise to oppose a motion to bifurcate discovery. Most subjects of discovery will fall into both categories, meaning it won't be easy to figure out what is and isn't a proper subject of discovery. Certainly, there's no bright line and lots of overlap. As a practical matter, this means that the parties will become involved in disputes as to the scope of allowable discovery, which will slow the case to a crawl and prevent the plaintiff from developing the facts he needs to support class certification and defend against a motion for summary judgment.

If the judge deciding the bifurcation issue is swayed by defendant's claim of burdensomeness, remind the judge that as in every case, the defendant will have an opportunity to object to any specific discovery request for the reason that it is overbroad or burdensome. Bifurcation simply isn't necessary.

For those wanting to know a little more about the procedural aspects of a typical class action in Illinois state court, here's a thumbnail sketch without citations:

First, the lawsuit is filed;

Next, the parties engage in motion practice. It's at this stage that many defense lawyers feel that the class-action battle will be won or lost. Typical moves might be a removal to federal court, a motion to change venue, or a motion to dismiss. If the defense loses these motions, it will have another chance for a big victory at the class certification hearing;

Discovery commences. This step, of course, usually happens simultaneously with the one above. The defendant might ask to bifurcate discovery into two parts: "class" discovery and "merits" discovery. The plaintiff will resist this suggestion, for reasons I'll post about tomorrow;

Next, following briefing on the class certification issue, there's a hearing on class certification. The class certification hearing might take place early in a case or after months (or years) have passed. In many cases, the defense will file a concurrent motion for summary judgment on the class representative's individual claims, but this step might also occur well before the class certification stage;

If the court certifies the class, there will be more discovery as the parties prepare for trial.

What happens if the case settles? There are a number of other procedural milestones. After the parties hammer out a settlement agreement, it will be presented to the court in a motion for preliminary approval. This motion, which might be filed jointly by both parties, will be followed by a hearing. If the settlement is approved, the class members are given notice, which is followed by a period of time--typically, a couple of months--for class members to object to or opt out of the settlement. Following the notice period, the parties will meet again at the final fairness hearing. It's at this stage that objectors, if any, will be heard. Unless appeals follow, the procedural milestones will end if the court grants final approval to the settlement.

In many cases, the filing of a class action will toll the statute of limitations for plaintiffs who later file an individual lawsuit based on the same conduct. See American Pipe & Construction Co. v. Utah, 414 U.S. 538, 38 L. Ed. 2d 713, 94 S. Ct. 756 (1974) (statute tolled for those who seek to intervene after a federal court has denied class certification); Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 76 L.Ed.2d 628, 103 S.Ct. 2392 (1983) (extending American Pipe to toll the statute of limitations for those who file individual lawsuits in federal court following a federal class action).

In Illinois state courts, the tolling effect will depend on whether the class action and the later, individual cases were filed in state or federal court. Cf. Steinberg v. Chicago Medical School, 371 N.E.2d 634 (1977) (the commencement of a class action in Illinois state court suspends the statute of limitations for all members of the purported class for later-filed state court actions); Portwood v. Ford Motor Co., 701 N.E.2d 1102 (1998) (the filing of a class action in federal court does not toll the statute of limitations for later-filed state court actions).

Why the distinction? The Portwood court explained:

Tolling the statute of limitations for individual actions filed after the dismissal of a class action is sound policy when both actions are brought in the same court system. In such instances, failing to suspend the limitation period would burden the subject court system with the protective filings described by the Supreme Court in American Pipe and Crown, Cork. Tolling the statute of limitations for purported class members who file individual suits within the same court system after class status is denied therefore serves to reduce the total number of filings within that system.

Tolling a state statute of limitations during the pendency of a federal class action, however, may actually increase the burden on that state's court system, because plaintiffs from across the country may elect to file a subsequent suit in that state solely to take advantage of the generous tolling rule. Unless all states simultaneously adopt the rule of cross-jurisdictional class action tolling, any state which independently does so will invite into its courts a disproportionate share of suits which the federal courts have refused to certify as class actions after the statute of limitations has run.

Portwood, 701 N.E.2d at 1104 (citations omitted).

Reading about Illinois class actions in the popular press, one might conclude that a few trial-level judges just make it all up as they go along. In fact, there is a complex body of Illinois law on the subject of class actions. Those wishing to learn it quickly should begin with Miner v. Gillette, 87 Ill. 2d 7, 428 N.E.2d 478 (Ill. 1981), which authorizes multi-state class actions in Illinois despite due process concerns.

By shepardizing Miner, it's easy to build a file of other important Illinois class action decisions. Some of these are--

Oliveira v. Amoco Oil Co., 201 Ill. 2d 134 (2002) (requiring an allegation that the plaintiff was actually aware of and deceived by allegedly deceptive advertising in order to meet the "causation" requirement of the Illinois Consumer Fraud Act);

Gordon v. Boden, 224 Ill.App.3d 195, 586 N.E.2d 461 (1st Dist. 1991) (approving the "fluid recovery" doctrine, which can be used when class members cannot be specifically identified to distribute a recovery to a similar class of victims);

Clark v. Tap Pharmaceuticals, 798 N.E.2d 123 (5th Dist. 2003) (setting out standards for determining the adequacy of class representatives).

In the coming months, there will be two potentially important decisions from the Illinois Supreme Court on class actions, as the Court considers the appeals of Avery v. State Farm, 746 N.E.2d 1242 (2001), and the Philip Morris tobacco judgment. The Avery decision will be important, among other reasons, for what it might say about class action trial procedures, claims administration, and the applicability of a single state's law to the claims of out-of-state class members.