One of the most common failings of plaintiffs’ counsel is inadequate due diligence on the individuals they put forward as putative class representatives. Defense counsel should not repeat that mistake.
It is not unusual for putative class representatives to have flawed personal claims or to be subject to important individual defenses. A named plaintiff may also present facts that make his claim demonstrably atypical of the class, or he may have baggage – such as a past criminal conviction for fraud – that make him facially inadequate as a class representative. Sometimes it turns out a named plaintiff isn’t even a member of the proposed class.
One might expect such failings to be rare – after all, why would any plaintiffs’ counsel invest in a pursuing a class action through an inadequate class representative? But such issues are surprisingly common. There are many reasons, including (among others):
- Plaintiffs’ counsel may simply fail to invest sufficient effort in proper due diligence on their clients. Or the clients may be less than forthcoming about important facts during the intake process.
- Strong class representatives can be difficult to recruit. Many class claims are the brainchildren of counsel who begin with a litigation theory and then seek out clients who can pursue it. But there can be a gap between the hypothetical facts on which the theory is based and the real-world facts of the living breathing people who are recruited for the representative role.
Whatever the reason, a “Know Your Plaintiff” exercise will nearly always be an important part of the defense effort.
Sources of Information
Information about named plaintiffs can and should be pursued through discovery. But some of the most important information will come from other sources.
- Defendants’ own records: If the defendant has had a business or employment relationship with the plaintiff, its own files relating to that relationship could be a gold mine. Even absent an ongoing relationship, internal sources like call center databases or customer complaint files may reveal communications with the plaintiff.
- Public databases: Public databases can be consulted for information on the plaintiff’s residential history, criminal background, previous record of litigation, and other potentially relevant information.
- Plaintiffs’ internet presence: A check should be made of publicly available social media and other internet postings made by (or about) the plaintiffs. Such checks should generally be limited to publicly available information – most courts consider it improper to use subterfuge like “friend” requests to obtain access to protected sites. But many people maintain a robust internet presence that is publicly available.
Discovery will be an important source of information but should be carefully managed. Many questions, for example, will be better posed in deposition questioning than in interrogatories, as the latter will be answered by counsel, sometimes with minimal consultation with their clients.
Timing may be important. In some cases it may be worthwhile to take the plaintiffs’ depositions early to tie down key facts before revealing the defense strategy in other ways. On the other hand, if the case schedule permits, the best time to take the named plaintiffs’ depositions could be after the motion for class certification is filed. That motion will commit the other side to a class definition and specific theories on each element of the Rule 23 test that can then be attacked through deposition questioning.
Questions to Pursue
The specific information that should be developed about a plaintiff will vary from case to case. But ultimately it will be important to gather information sufficient to answer the following critical questions:
- Is the plaintiff a member of the class? This should not be simply assumed. Class definitions are often carefully crafted to avoid potential barriers to class certification, such as predominance issues or intra-class conflicts, and it is not unusual for the resulting definition to fail to cover one or more of the named plaintiffs. It may be easy for the other side to fix this by adjusting their class definition – but that fix may then create the very problem the original definition was designed to avoid.
- Are there weaknesses in a named plaintiff’s claim that make him an inadequate class representative? For example, if the case challenges a product label and the plaintiff never read that label, he will not be an adequate representative of a class of persons who were allegedly misled by it. Other facts, such as a criminal history that will make his testimony subject to impeachment, may also undermine the plaintiff’s adequacy.
- Are there other special circumstances that may make a named plaintiff’s claim atypical? These may include facts bearing on both the elements of the claim and potential affirmative defenses, such as waiver, estoppel, or statute of limitations.
Finally, it is important to remember that critical facts about the class itself may be persuasively illustrated through evidence about the named plaintiffs. If there are two or more named plaintiffs, differences in their circumstances can be extrapolated to establish important differentiation within the class that will undermine predominance. And the more instances of individualized issues that can be shown to exist for the named plaintiffs, the more persuasive it will be to argue that such individualized issues predominate generally.