Civil Procedure II

28 November

• Summons, complaint, and memo : writing assignment for Monday; supplementary materials pp. 276-291
• Time computation (updated exercise in e-mail) due Monday
• Martin v. Wilks
  Is there a dudy to intervene? Is there a duty to join? Congress has overruled Wilks on employment law: ironically, it's still good law in all areas except it's own facts.

  No duty to intervene. If you want someone bound by your lawsuit, join them.

• FRCP Rule 22 interpleader is different from statutory interpleader §§ 1335, 1397, 2361.
• Cohen v. Republic of Philippines
  She meets the requirements of the rule, so she's in. Not really an interpleader, so much as impleader, really.
• Class actions: the merger of procedure and politics.
• To be certified, you need to meet 23(a), and one of the categories of 23(b).
• Communities for Equity v. Michigan High School Athletic Assn.
  Some interesting arguments about policy here. The class purports to represent all female high school girl athletes, but they won't all share the goals of the class.
• Heaven v. SunTrust
  Interestingly, the counterclaims were probably not economically viable on their own (or they'd have been filed). But it makes sense to assert them here, because they could be used to offset the regulatory damages.
• But a court could use § 1367(c) to decline jurisdiction over the counterclaims, if they're in under supplemental jurisdiction.
• Hansberry v. Lee
  How binding are classes?

  A fine point: parties are bound only by points actually litigated and determined in prior suits. This was a stipulation. That's a nice issue preclusion trick.

30 November

• Writing assignment and time computation due Monday.
• State-Fed differences due Wednesday
• Phillips Petroleum v. Shutts
  The burden on absent class action plaintiffs is not the same as on a defendant. So you don't need as much due process.

  There does seem to be some baseline consitutional requirement, but it's not obvious what that is.

  Notice + other procedures is sufficient to bind the class.

• Amchem Products v. Windsor
  Defendants want settlement classes to be as broad as possible, to bind everyone they can. Plaintiffs want more granular classes, for obvious reasons.
• "Lockout" agreements (i.e., we'll settle with you but you won't represent any more asbestos claimants) are unethical.
• Wal-Mart v. Dukes
  3 named plaintiffs and 1.5M class members.

  They lose as a 23(b)(2) class on commonality, and because of the back pay claim (this be the only means of recovery for former employees-- injunctive relief won't cut it-- but then again not everyone is owed back pay).

  But the dissent suggests that a 23(b)(3) effort mmight succeed.