USA Law and Practice Contributed by: Roger Cooper and Lina Bensman, Cleary Gottlieb Steen & Hamilton
Under Rule 26 of the Federal Rules of Civil Procedure, discovery must be relevant and proportional to the needs of the case, but the scope of relevance is typi- cally interpreted broadly by United States courts. The traditional rules of privilege and confidentiality apply. A broad range of discovery mechanisms are permit- ted, including: • document discovery; • interrogatories; • requests for admission; and • deposition testimony. Parties are also allowed to seek discovery on the specific issue of class certification. Courts generally set limitations on whether and how discovery may be sought from absent class members, but named class members are subject to the same discovery require- ments as any other party to a litigation. 3.11 Remedies A class action plaintiff is typically entitled to the same remedies as would be available for claims brought as individual actions. Those remedies may include: • monetary damages; However, state law may sometimes limit the recovery available through class action lawsuits, depending on the jurisdiction and applicable law. 3.12 Settlement and ADR Mechanisms Settlement and other alternative means of dispute res- olution are available for class action litigants, just as they are for individual claimants. However, settlements entered into in a class action case must be approved by the court, pursuant to Rule 23 (e) of the Federal Rules of Civil Procedure. The court will hold a hearing to determine whether the settlement is the product of an “arm’s length” negotiation between the parties and whether the settlement is “fair, reasonable, and adequate”. Class members may object to a proposed settlement, and such objections will be considered by • injunctive relief; • disgorgement; • restitution; • declaratory relief; and • others available under law.
the court. Objections may be resolved through indi- vidual settlement(s). In “opt-out” class actions, class members may also choose to opt out of any settle- ment and file separate claims against the defendant. Mediation is also often ordered by the court as part of the litigation process. Though parties are required to participate in court-ordered mediation, if applicable, the parties are not required to resolve their disputes through the mediation process – though some par- ties do so. If parties ultimately arrive at a settlement agreement through the mediation process, the court still must approve the settlement agreement as dis- cussed above. 3.13 Judgments and Enforcement of Judgments A final judgment in a class action with a certified class binds all class members. Class members bound by a judgment are precluded from asserting claims brought in the class action case, as well as any claims that arise from the same nucleus of operative facts. If the class was not certified, only the named plaintiff(s) are bound by the judgment; other potential plaintiffs may bring further litigation claims. Judgments delivered by the trial court may be appealed as of right, as with any other judgment in a civil litigation. Enforcement of a final judgment likewise follows the same procedures as non-class action litigation, subject to state law. Parties may levy an attachment or writ of execution against assets of reluctant debtors.
4. Legislative Reform 4.1 Policy Development
Over the last decade and a half, the United States Supreme Court has gradually tightened the stand- ards around class certification. Recently, the Supreme Court clarified that all named plaintiffs must show Arti- cle III standing in order to recover damages, which has made certifying some classes more difficult.
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