Trial Tips From Beasley Allen Lawyers
Demet Basar, a lawyer in our firm’s Consumer Fraud & Commercial Litigation Section, has some recommendations this month for our readers. Demet has a tremendous track record in the handling of complex class action litigation. I believe the following tips will be helpful to all trial lawyers generally, but especially to those who handle class action litigation. Let’s see what Demet, based on her vast experience, has to say on an important aspect of handling class action cases.
Responding to Complex Dismissal Motions in Multi-Party Class Actions
Over the past decade, large scale litigation has focused more on motion practice rather than actual courtroom activities. This is particularly true in the case of class action and mass tort litigation. For this reason, this month we decided to devote the Trial Tips section of The Report to the first case dispositive motion plaintiffs typically face in complex litigation: the motion to dismiss.
Effective written advocacy is always challenging and even more so when responding to motions to dismiss in multi-party class actions. In some of these cases, plaintiffs from different states band together to assert similar types of claims under their states’ laws on behalf of state classes and, sometimes, on behalf of multi-state or nationwide classes, contending the applicable laws are substantively similar. One or more plaintiffs may also sue multiple defendants alleging each caused their harm. Motions to dismiss in these types of cases are often complex because they involve applying similar or different state laws to the same types of claims, which can yield different results on the same facts. Regardless of the particular circumstances, responding to such motions in a well-organized, streamlined and persuasive manner is not easy, but, with perseverance and creativity, is achievable.
The goal in responding to complex motions, as is the case with any type of legal writing, is to grab the attention of the reader – usually, in the first instance, the judge’s clerk – and keep it, which is best accomplished by presenting arguments simply and as part of a compelling story.
In our view, the story should begin with why the plaintiffs’ case is so strong on the merits that it would be unjust to dismiss it and the story should end the same way. The middle of the story should have logically organized, lean arguments that affirmatively establish why each of plaintiffs’ claims is viable and why each of defendants’ arguments for their dismissal is incorrect or should not be accepted in the context of the case.
The story should be written in plain English, and only one or two cases cited for each legal proposition, with short parentheticals, to keep the flow. Two or three themes that encapsulate plaintiffs’ position on important issues should be woven into the brief to pull it together.
Our recent experience with complex dismissal motions in one of our auto defect cases illustrates some of the challenges that can arise in responding to these motions. In this case, the two defendants, each represented by a premier defense firm, moved to dismiss plaintiffs’ 100-count complaint asserting claims under the laws of fifteen (15) states. Defendants each filed exhaustive 50-page briefs that could not be more different in structure or style. One defendant, the auto manufacturer, generally made broad-brush arguments that ignored or minimized differences in state laws. The other defendant, the maker of the defective part in the automobiles, on the other hand, parsed each type of claim under each state’s law separately, focusing on particular claims rather than on types of claims.
Our first step in planning our opposition was to analyze the organization of defendants’ briefs to determine whether the organization itself served a purpose. It did. For example, the auto manufacturer addressed plaintiffs’ statutory consumer protection claims and common law fraud claims together to make it appear that all of those claims had the same or similar elements and were subject to the heightened pleading requirement of Rule 9(b) when they clearly did not.
The parts maker used a slice and dice approach because attacking each of plaintiffs’ claims in isolation allowed it to blunt the full force of plaintiffs’ allegations, which, when viewed collectively as required, could give rise to a plausible inference that it and the automobile manufacturer both caused plaintiffs’ harm.
Because these and similar tactics affected many of plaintiffs’ claims, addressing them in separate state-specific arguments would be repetitive and take up too much space. Therefore, we exposed what defendants were up to once at the beginning of our brief, which also had the benefit of allowing us to signal to the court early on that defendants’ arguments should be viewed with skepticism.
As is prudent when tackling any complex problem, we next decomposed defendants’ briefs into smaller, simpler segments to identify their deficiencies, strongest arguments, case law that was truly problematic for our case, and principles and case law that we could use to support our arguments. We then conducted extensive legal research, learned the intricacies of the different states’ laws for each type of claim asserted, analyzed the similarities and differences among them, identified common issues of fact and law relating to each claim and its elements, and, armed with this knowledge, began to construct the right framework for our response.
Because most of our claims were asserted against both defendants and it was important to link their conduct, we decided to file one opposition brief responding to defendants’ separate motions, which allowed us to use fewer pages. The challenge was how to present our arguments in a way that would be most useful to the court. Judicial clerks and judges often read briefs horizontally, comparing the parties’ arguments issue by issue, instead of serially reading the moving brief, the opposition and the reply. Thus, barring a case-specific reason, it is important to organize a responding brief in a manner that makes it easy to toggle between it and the moving brief. In our case, because the organization of the two moving briefs was so different, we tried several different approaches until we settled on one that we thought would work.
We determined that the simplest approach – grouping all of the claims brought under a particular state’s laws in one section – made the brief easier to navigate but less persuasive because it broke the flow of the arguments. Ultimately, we decided to organize the brief by type of claim, e.g., violation of consumer protection laws, breach of warranty, and so on. This organization, however, could result in a lot of repetition – and extra pages – because many of the state law claims had elements in common. If ten state law claims of the same type have a scienter requirement, repeating the same facts and applying the case law of different jurisdictions in ten separate sections could be confusing and ineffective.
Thus, we decided if there were arguments that affected a group of plaintiff’s claims, even if they applied to just one or two elements of a claim, we would address them in one argument and refer back to that section when necessary. In our case, both defendants argued the plaintiffs failed to adequately allege defendants’ knowledge of the defect or plaintiffs’ reliance on the alleged misleading statements and omissions, key issues whose resolution affected all of the plaintiffs’ claims requiring knowledge and/or reliance.
We addressed these elements in standalone sections and, in each section, presented the relevant facts in the most persuasive and fulsome way and cited the best cases from any jurisdiction with favorable outcomes on similar fact patterns, without being limited by the case law of particular states. Later, in the separate sections addressing each state claim, we referred back to these element-specific arguments and cited case law from the relevant state, and addressed any other arguments specific to that state claim.
There is no one size fits all strategy for responding to complex motions to dismiss claims arising under multiple states’ laws, but thoughtfully considering different frameworks for presenting arguments and, once one is chosen, housing the arguments effectively within the framework, without repetition and in a readable way, should be the goal.
If you have any questions, contact Demet Basar at 800-898-2034 or by email at [email protected]. She will be glad to be of assistance.