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May 21, 2018 Articles

Plaintiffs’ Practice: Vetting and Preparing Putative Class Representatives for Challenges to Their Adequacy

Tips for evaluating named plaintiffs, preparing them for the case, and entering into a retainer agreement.

By Robert Neary

A prerequisite for bringing a class action under Federal Rule of Civil Procedure 23(a)(4) is that the class representative “will fairly and adequately protect the interests of the class.” Defendants often raise challenges to the adequacy of a putative class representative in an effort to defeat certification. Plaintiffs’ counsel should be aware of these possible challenges and take steps to head them off, starting from the initiation of the case through class certification. Being prepared to respond to any attacks on the putative class representative’s adequacy begins with the proper vetting of a potential representative and should continue through discovery and ultimately certification.

Initial Selection and Evaluation of a Named Plaintiff
Putative class representatives may be found in a number of ways: referrals from other attorneys, a response to an advertisement from plaintiffs’ counsel, or someone contacting counsel about a particular grievance he or she has against a company. In assessing a potential representative’s adequacy, courts will typically inquire as to (1) whether the class representative is part of the class and possesses the same interest and suffered the same injury as the putative class members, (2) whether the interests of the class representatives and the absentee class members are antagonistic, and (3) whether they are willing to serve as class representatives and willing to vigorously prosecute the case. Jackson v. Se. Pa. Transp. Auth., 260 F.R.D. 168, 192–93 (E.D. Pa. 2009). Thus, ensuring that the class representatives will be adequate should begin with plaintiffs’ counsel’s very first contact with them.

Standing. Plaintiffs’ counsel should confirm that the potential class representatives have standing to bring their claims prior to filing a complaint. For example, if plaintiffs are bringing a suit alleging violations of consumer protection statutes related to the mislabeling or misbranding of certain products, depending on the district’s precedent, the client may only have standing to bring claims based on the specific products they purchased. See, e.g., Route v. Mead, 2013 WL 658251, at *3 (C.D. Cal. Feb. 21, 2013) (concluding that a proposed class representative does not have standing to represent a class claim arising out of products that she herself never purchased). It should also go without saying that plaintiffs’ counsel should confirm that the potential representatives have suffered damages. This inquiry into the putative class representatives’ facts also relates to their typicality and should include a thorough examination of whether the plaintiffs’ facts would differ in a significant manner from those of the putative class members. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 626 n.20 (1997) (holding that the named plaintiffs’ claims and the putative class claims should be “so interrelated that the interests of the class members will be fairly and adequately protected in their absence”)

Interest. Another consideration at the outset is gauging the interest of the putative class representative. Defendants will raise challenges to adequacy by attacking the so-called “puppet” class representatives and arguing that they have abdicated their role to plaintiffs’ counsel. See, e.g., Kirkpatrick v. J.C. Bradford & Co., 827 F.2d 718, 728 (11 Cir. 1987) (holding that class certification may be denied if the named plaintiff’s “participation is so minimal that they virtually have abdicated to their attorneys the conduct of the case”). To respond to this challenge, plaintiffs’ counsel should verify that the clients are interested in pursuing the case and willing to spend the necessary time to do so. Counsel’s initial interactions with them will help gauge their interest: Are they quick to respond to your emails or phone calls? Are they working with counsel to provide their documents or does it seem like a burden to them? If counsel is having problems getting information from the putative class representatives from the start, those problems will likely continue as the litigation progresses and their assistance with responding to document requests, answering interrogatories, and sitting for a deposition. If these issues are presenting themselves during the first interactions with the clients, counsel should reconsider whether they should serve as the putative class representatives.

Involvement. It is important for plaintiffs’ counsel to thoroughly explain during the first contacts with the putative class representative what their time investment will be. Counsel should discuss with them the process of discovery, what will be expected of them, and the fact that they will likely have to take time off of work to sit for a deposition. If the case is being filed in federal court and the clients live outside the district the case was filed in, counsel should explain that there is a possibility they will need to travel to the district for their deposition and possibly trial. It is important to make sure that they are willing and agree to invest this time in the case. Often, in an effort to get their cases filed quickly, plaintiffs’ counsel may overlook explaining these commitments, which can cause issues down the road when the named plaintiffs are unable to commit the necessary time. Being up-front and honest about the time investment at the outset will help to eliminate these troubles later on.

Investigation. Finally, plaintiffs’ counsel should also endeavor to discover any adverse facts about the named plaintiffs that may be used by the defendants to challenge their adequacy:

  • Do they have criminal record?
  • Have they declared bankruptcy?
  • Have they served as class representatives in multiple cases?

While these facts may not automatically disqualify someone from being a class representative, they may nonetheless pose problems, and it is best to discover these facts early to adequately prepare for any challenges. If the case involves a large number of people seeking to act as class representatives, counsel should consider creating a questionnaire for them to fill out to help with the vetting process.

Education and Preparation of Putative Class Representatives
Once it has been decided to move forward with the named plaintiffs, counsel should immediately begin their education as class representatives to prepare for the defendants’ arguments on their adequacy. It is important to make sure they understand what a class representative is—at a minimum, they should know that, should a class be certified, they would be acting on behalf of the putative class members and not only for themselves in the litigation. Counsel should discuss what will be expected of them during the litigation including their discovery obligations, what will be required for their depositions, that they will need to be available for trial, and that it is their responsibility to keep up with the case. Their role and responsibilities as a class representative should be subjects discussed with them throughout the litigation so that when these questions come up at their deposition, they can easily articulate a response. Counsel should also instruct them to refrain from any social media or other Internet postings about the defendant or the case.

After hearing what their obligations are, potential class representatives may inquire as to what is in it for them. Plaintiffs’ counsel should make it clear that if the case is successful or settles, class representatives are not entitled to anything beyond what any other class member would receive. Counsel should explain to them how important it is to have people act as class representatives to put a stop to the alleged illegal conduct. Counsel may also choose to inform them that an incentive award could be awarded to them by the court for the time they spent helping in the litigation. However, it should be stressed that any award is not guaranteed and must be approved by the court—which could deny the request outright or reduce the amount requested.

Once the complaint has been drafted, and prior to filing, counsel should make sure to send it to the clients to review and confirm that any facts specific to them are correct. to the clients should review the entire complaint, but there is not a requirement that they understand all aspects of the case to be able to meet the “adequacy” requirement. Cromer Fin. Ltd. v. Berger, 205 F.R.D. 113, 124 (S.D.N.Y. 2001) (finding class representatives to be adequate when “their deposition testimony showed that they are more than sufficiently aware of the essential facts and issues in this case”) A good practice is to discuss with the clients the theme of the case and the claims being brought so that they understand and can convey their understanding when asked at a deposition.

Working with the Putative Class Representatives During Discovery
After properly vetting the named plaintiffs and filing the complaint, plaintiffs’ counsel will typically have minimal contact with them beyond keeping them updated on major developments in the case until it reaches the discovery phase. A properly prepared and vetted named plaintiff will know what to expect during discovery and should be able and willing to assist. Typically, defendants will serve their requests for production and interrogatories and seek to schedule the putative class representatives for a deposition after the discovery responses are due. Plaintiffs’ counsel should immediately forward the discovery requests to the named plaintiffs, ask them to review, and set up a time to meet and discuss the responses.

Interrogatories. It is important that the interrogatory answers come from the putative class representatives and are not just strictly drafted by plaintiffs’ counsel. A good practice is to ask the named plaintiffs to draft the answers to best of their ability prior to meeting with them and then help them refine their answers. Many of the interrogatories are often just straight factual questions that the putative class representatives can easily answer. However, it is more difficult when the interrogatories focus on legal claims such as when defendants ask the putative class representatives to describe the damages they suffered. Counsel will need to provide assistance in responding to these types of interrogatories.

For example, in a consumer “price premium” type of class action, it may be difficult for laypersons to describe the damages theory, and plaintiffs’ counsel will need to work with the plaintiffs to ensure they understand the theme of the case and the theory of damages. Counsel should explain to them that the defendants will question them about their responses at the deposition so it is important that they understand and feel comfortable with the answers.

Requests for production. At the outset of the case, plaintiffs’ counsel should request that the plaintiffs search for and provide copies of all possibly relevant documents in their possession. Counsel should verify that the clients searched all possible locations for relevant materials—paper files, electronic files, email accounts, and any accounts they may have with the defendant company. This will make responding to the requests for production much less burdensome. Plaintiffs’ counsel, however, should still send the requests to the clients and ask that they perform another thorough search for all of the documents requested to capture anything that they may have initially missed. It is a good rule of thumb to have clients provide copies of all the documents requested, even if counsel plans to object to the production of certain documents, because the court may eventually compel counsel to produce the materials.

Deposition. Properly vetting and educating putative class representatives and keeping them informed of major developments in the case will make their deposition preparation much easier. Counsel may want to begin the preparation by making them comfortable with the deposition process by describing the setup of the room, where the court reporter and possibly the videographer will be, and how the questioning will proceed. Counsel should discuss the general rules of answering the questions (that the client should provide short honest answers, not speculate or guess, not volunteer information, etc.). Counsel can then move on to more case-specific discussions. Generally, counsel will want to review with them their interrogatory responses, the documents they produced, and the operative complaint. Counsel should make sure that they can articulate the theory of the case, the damages they suffered, and the claims that are being brought. Counsel should also confirm that the named plaintiffs know their role and responsibilities as class representatives. Counsel can make them comfortable with the questioning process by practicing these questions with them. Counsel should explain to them that the defendants may bring up any adverse personal facts about them—a bankruptcy or criminal conviction—and that they need to be prepared to answer these questions openly and honestly. Preparing the putative class representative in this manner may prevent challenges to his or her adequacy.

The Retainer Agreement
One final topic when working with named plaintiffs is the retainer or engagement agreement. First, it is important to have the plaintiffs sign the agreement as early in the process as possible. At a deposition, defendants will often delve into the early communications the class representatives had with the firm representing them. The earlier in the process they have signed a retainer, the less information that can be provided to the defendants at the deposition.

Some items to consider incorporating in the agreement are the following:

  • A description of their role as putative class representatives.
  • A description of their responsibilities as putative class representatives, including that they agree to assist in discovery and will appear at trial if necessary.
  • A statement that they are not being promised anything beyond what is sought for all putative class members.
  • Attorney fees—explain the nature of the contingency fees and how the attorneys will be reimbursed for costs.
  • A provision that explains that either plaintiffs’ counsel or the court may ultimately determine that they are not adequate class representatives and what that determination means.

It is important to remember that adequacy under Rule 23(a)(4) “does not require that the class representative be the best possible representative, but simply one who will pursue resolution of the controversy in the interests of the class. . . .” Mueller v. CBS, Inc., 200 F.R.D. 227, 239 (W.D. Pa. 2001). While it is impossible to predict all the challenges to the adequacy of the class representatives that a defendant may raise, vetting and preparing the putative class representative in the above manner will go a long way toward heading off or defending arguments against adequacy and will ultimately assist with class certification.

Robert Neary – May 21, 2018