John G. Simon’s work as Managing Partner at the firm has resulted in hundreds of millions of...
For more than thirty years, Erich Vieth has worked as a trial and appellate attorney in St....
Tim Cronin is a skilled and experienced personal injury trial attorney, including product liability, medical malpractice, premises...
Published: | July 10, 2024 |
Podcast: | The Jury is Out |
Category: | Career |
In recent years, court rulings have made major changes to class action law. Simon Law Firm attorney Jer Nixon joins the podcast to discuss the requirements to file a class action case and the impact of arbitration clauses and class action waivers.
Announcer:
Welcome to The. Jury. is Out a podcast for trial attorneys who want to sharpen their skills and better serve their clients. Your co-hosts are John Simon, founder of the Simon Law Firm Tim Cronin personal injury trial attorney at the Simon Law Firm and St. Louis. Attorney Erich Vieth.
Tim Cronin:
Welcome to another episode of The. Jury is Out. I’m Tim Cronin.
Jer Nixon:
I’m Jer Nixon.
John Simon:
I’m John Simon
Tim Cronin:
Today, John and I are happy to welcome Jer Nixon onto the podcast. Jer is an attorney here at the firm. He’s been here How long have you been here now, Jer?
Jer Nixon:
Since last July.
Tim Cronin:
Oh wow. Almost a year.
Jer Nixon:
Coming up on a year.
Tim Cronin:
Jer why don’t you tell the listeners a little bit about your background before you joined us here at Simon.
Jer Nixon:
Will do so. I grew up in Missouri, Jeff City, to be exact. We can fast forward through that part. I went to the University of Missouri and Mizzou Law. I started my legal career up here at a big firm, Thompson Coburn, which was a great experience and great place to practice law. We have that in common and
Tim Cronin:
I Would say the Same thing
Jer Nixon:
And growing up, my grandfather’s a lawyer, my dad, my mom are both lawyers and always pushed the importance of trial work, not just being in the Courtroom to do motions every once in a while, but to actually get trials. My grandfather was a lawyer down in Jefferson County, my dad in a number of places, and trial work was important. I realized I was not going to get that in that role. Learned many other things, but getting to try cases was not going to come up anytime soon. So I went and got into public service for a bit and I was a prosecutor here in St. Louis. In that role, I was able to get jury trials quickly and constantly be in the Courtroom and learn how jurors work and what works and what doesn’t.
Tim Cronin:
There’s certainly plenty of opportunity as a prosecutor in the city.
Jer Nixon:
There’s plenty of intake as far as new cases coming in as a prosecutor. But then I had an opportunity and moved up to Chicago where I worked at a firm doing class actions and contingent CV business litigation. I was up there for about four and a half years and then I wanted to come back to Missouri, had the opportunity here at the Simon, Law Firm, and met with Tony who also does class actions and contingency fee business litigation. So it seemed like a great fit and came back last summer and been here since.
Tim Cronin:
So jar, I’ve dabbled a little bit in class actions, not much. I typically stick with my bread and butter of individual tort cases. We have a lot of attorney listeners, but not a lot of people do class actions and sometimes people confuse mass tort actions with class actions. Why don’t you just kind of explain what is a class action?
Jer Nixon:
Yeah, so a class action is the case where I think most attorneys may not get the specifics, but they recognize that when there’s a situation where a lot of individuals have small harm but that harm is large in the aggregate, that could be a sort of a class action. But then again, that overlaps with what you were just talking about and mass torts and multi-district litigation. So just to sort of take a step back because I think it’s important to describe what a class action is. Traditionally in the common law you could not represent people other than the person who came in inside the contract. You could not bind absent parties to any sort of judgment. This is where class action comes in. But long ago, courts started to recognize what were called representative actions, which is sort of the precursor to class actions. This started in 1842 with Supreme Court Equity Rule 48, but then we get to the federal rules of civil procedure and Rule 23, which is what we know as the modern class action rule on the federal level.
But in its initial form, it didn’t really have the teeth necessary and was sort of an obscure rule. You could use it for injunctive relief, but you couldn’t really get compensation as damages. And then that changed in 1966 with the Amendment of Rule 23 to sort of what it is today. And the big change was that it changed class actions from an opt in device to an opt-out device. So previously, if a class action was filed, every member of the class would have to go through a process to affirmatively opt-in to be covered by the class. In 1966, rule 23 changed. So now if a class is certified, you have to opt out to not be bound by the judgment. Now in 1966, this change was not a huge deal and actually had support from the defense bar, which is hard to think about today. But at the time won as
Tim Cronin:
Many plaintiff class action lawyers who were going to file more class actions trying to get more people to opt in.
Jer Nixon:
So at the time the defense bar saw, well, okay, this change now that you have to affirmatively opt out or you’re bound by a judgment means that a big corporation can get global peace. They can wrap up all their claims and have no more outstanding liability for some wrong they committed and some harm. Obviously the defense bar has sort of changed its position on class actions, but that’s the history and that is also sort of the big difference between class actions and then mass torts and MDLs. So class actions are not well suited for cases where you’re arguing about individual harm. So if individual is hurt in some way and you need to show, Hey, I got my leg chopped
Tim Cronin:
Off, where there can be big differences in the damages. Yes. Or individual causation questions.
Jer Nixon:
Yes, more so the individual causation questions. You can have different damages in the class action.
John Simon:
Have categories. Right. Let me ask you this, and I know probably it’s probably a good bet that most of the attorneys that are listening don’t do class cases. And I did class, I’ve done ’em on off and on my entire career. I was a little more heavily involved maybe 20 years ago or so. But when somebody, a non-class action lawyer is looking at a potential case, what are some of the things that make it a viable case versus some things that just you can kind of rule it out and so that it’s not a class case. What kind of things do you look for to actually pursue it as a class case? What are you looking
Jer Nixon:
For? So unfortunately, one of the things we’re looking for is going to get beyond the merits here, but it’s the number one thing that derails most class actions these days. And that’s arbitration clauses and class action waivers. That’s more of a thing since 2011. So it may be not something that you had to deal with as much back when you were doing more classwork yourself. But in 2011, the Supreme Court handed down a ruling in a case called at and t Mobility I remember, and it was a five to four majority, five conservatives in the majority with Justice Scalia writing the opinion. And they really twisted
John Simon:
Good old days. We had four liberal justices,
Jer Nixon:
No. So that court really twisted some language to take an old 1920s law, the Federal Arbitration Act and say even if an arbitration agreement and a class action waiver would prevent you to bring this case under any other circumstances, that it’s still enforceable. And now anytime you have a consumer transaction where you sign an agreement or where you click, I agree to terms and service or in some way they have you agree to terms and service somewhere in the thousands of pages, there’s probably a line that says you agree to binding arbitration and a class action waiver,
John Simon:
Which is every single thing you purchase anywhere online
Tim Cronin:
Nowadays and everything. And I mean most class actions are consumer fraud claims.
Jer Nixon:
There are a lot, but I mean
Tim Cronin:
A big percentage of them,
Jer Nixon:
A big percentage are consumer fraud claims. And so it’ll still work if you buy something where there’s not terms and conditions, there are still class actions like that. If you go and you buy something at the store where you just exchange money for the thing, you don’t sign any terms. That can be a place where a class case still works. But that’s always going to be one of the first things we look at when there’s a potential class case because you need a lot of small claims with big aggregate damages. That’s
Tim Cronin:
The baseline after whether you can meritor, whether you can bring it, I mean the first thing you’re really looking at is the potential size of the class and the damages per class member.
Jer Nixon:
Yeah, what’s going to make sense because it’s tough to bring a class case that’s a smaller class. You’re going to need sufficient damages there to justify the amount of time we’re going to have to spend on it. The experts we may have to hire depending on what kind of case it is,
Tim Cronin:
Which is the whole reason why class actions exist. So class actions have a bad name. And when I’ve talked to friends in the past about what they are, the whole reason for their existence is companies can get away with fraud on a massive scale as long as it’s just a little bit of fraud per person and absent class actions, there’s nothing you can do to prevent that from occurring.
Jer Nixon:
Absolutely. And I mean that’s why class actions exist. It’s the goal. But then again, when you’re talking about talking to other attorneys about class actions or non-attorneys, there are times where you hear negative things about class actions because sometimes it’s the goofiest ones or the silliest ones that get the headlines and someone can file a complaint on a silly little silly sounding thing and claim they’re owed 10 billion in damages. That thing may get dismissed in two weeks, but it got the headline and it unfortunately gives class action a tough name sometimes.
Tim Cronin:
Well, I mean a lot of times people assume the class actions are made up by the plaintiff’s bar and they’re only brought for the benefit of the plaintiff’s bar. And I mean the attorneys who work on them certainly benefit if they’re successful. If they’re not successful, they don’t benefit at all. But it goes back to if they did not exist, somebody has to do ’em and an attorney has to do ’em. And if they did not exist, it would just be unfettered fraud on a massive scale as long as it’s not too much per person.
Jer Nixon:
And the thing I would focus on here too, which is really important and sometimes not talked about because we all live in America, we’re over on this side of the ocean. We pay attention to our own government the way we look at policy. So we’re not really, we understand how Europe has different laws in different other countries, but the American system is unique in a lot of ways. And the class action is important here and it’s because in America the default is generally going to be free market logic and under free market logic, the way we handle corporations and what you can do is the default is, hey, do what you want to do. You don’t have to ask for government permission, but if you harm someone, you’re held accountable for that. In some other policy structures, like in Europe, it can be heavily regulated industries where you got to go get permission before you do anything, and then maybe you can’t bring a class action.
But it’s all getting handled on the front end where in America we like to be able to say, you can do what you want, try what you want. But if you hurt someone, you’re held accountable. And the ways to hold someone accountable then if you’re doing it after the fact, instead of making someone take years to get permission in advance, is you can either have taxpayer funded government lawyers do it, or you can have the private sector handle it, and that’s what class actions do. They hold people accountable for wrongs and they get redressed for consumers where they’re injured in a way that they cannot pursue an individual lawsuit just because it wouldn’t make any sense.
John Simon:
I think just the fact that they exist probably provides a lot of protection more than we realize if some person or company or whatever is thinking about doing something that they shouldn’t be doing or defrauding folks what maybe selling something or it’s a rental agreements or whatever, just knowing that they could be held. I mean, if one person sues ’em, just like you guys were talking about, if the damages at issue for one person is 120 bucks, that’s never going to see inside of a Courtroom anywhere. It’s just not going to happen. But if you’re able to, I remember years ago we had one and was, I don’t remember, it was a cable TV thing or whatever. It was a monthly charge. It was a monthly charge, it wasn’t authorized and it was about 12 bucks or $14 and people had called about it. I mean it was a big thing individually, people were, even though the amount was smaller, they were frustrated about it and it ended up running into the millions of dollars and it was literally hundreds of thousand dollars a month. And I don’t even remember what, I don’t know that we handled it, but I think we had taken a look at it and I don’t know how that turned out, but it was the perfect situation where somebody sending out a bill with some unauthorized charge on it and you’re sending it out to 300,000 customers or a million customers every month, and if somebody complains you, I guess you’d give ’em their 12 bucks back or ignore ’em and that
Tim Cronin:
Kind of thing nowadays will have had an arbitration clause in your contract. And Scalia wrote a blueprint for how to avoid businesses from being held accountable for class action.
Jer Nixon:
And I think over the last, that’s what he did. I think you’re seeing since then and since that 2011 opinion and now every single contract having this, it took some years for it to really get into every contract, and there’s a little bit of lag between when those contracts are relevant and the class actions related to them. But I think you’re seeing growing consumer outrage over getting hit with these little fees and not being able to do anything about it anymore. It’s growing. It’s a practice that you’re seeing happen more often. I think it’s across the political spectrum. You’re seeing people get mad about it and the way, if anyone from Congress is listening right now, this is something that we need to deal with. I think Congress is the way that it’s going to have to be dealt with. It’s getting a little more momentum on changes to the Federal Arbitration Act or some other way that you would fix this. And I think Scalia, before he passed, I started to make some statements about how the at and t decision may have gone too far and may have been a bad thing for even. He considered himself a sort of free market conservative and how it distorted markets.
John Simon:
Yeah. Did that case affect our payday loan cases? Was that the one that came out? I think it did. I think it did. Yeah. So we had a dozen or so payday loan cases that had arbitration clauses and we were successful at the state level in getting those so they wouldn’t be enforceable and unconscious. I don’t remember exactly what the theories were that we used to throw them out or get around them and an
Jer Nixon:
At t case the lower
John Simon:
And that’s what came out, got out of it.
Jer Nixon:
Yeah.
John Simon:
Actually our case was, I don’t know what you call it, but we were in the wings behind at t the case, the at t case, and that decision came down and was going to be applied to our case, and that ended all of our cases. I bet we had a dozen of them or more that were pending at different levels and it just came out and wiped them out. There was a lawyer in Missouri who filed a bunch of, I think they were securities issues, investment or securities fraud cases. George Fit Simmons, who’s of counsel here, I think arbitrated some of them, and I just was reading this and it was in the Lawyers Weekly. The amounts of damage in each were enough that you could do them individually. And so they wanted individual arbitrations and then I think they lined up like four or 500 arbitrations in a row and the defendant was complaining about it because they had to pay, they had to pay for the arbitration. And
Jer Nixon:
So the defense bar got hit with a couple real notable instances of places where people kind of called their bluffs and filed thousands of arbitrations. And so they had a $10 million fee that they owed. The American Arbitration Association went to court, tried to say, Hey, actually this isn’t enforceable. This thing should be in court. You don’t want to fight this. And then, yeah, the judges did not take kindly to that, but with the law that they have, the new thing is that they put in the contracts that before you go to arbitration, you have to do a pre arbitration dispute resolution process before you’re allowed to file your arbitration. So you can’t do the mass arbitration. Well,
John Simon:
I guess if that works, they could just keep putting up multiple steps for you before you could, they could stretch it out over 20 years as
Jer Nixon:
Long as it’s, it makes it harder to bring claims on scale and easier to get an extra Well,
John Simon:
Go ahead. I’m sorry to cut
Jer Nixon:
You say, it makes it easier for a corporation to get an extra 30 bucks out of every consumer and say, Hey, well, what are you going to do about it?
Tim Cronin:
And so that at t case was kind of the look, there was a couple decades buildup of pushback for class actions from the Chamber of Commerce. And so Congress did do something about class actions, which wasn’t very good. They did, which is cfa, which we can talk about. And then what six years later was the at t decision. So why don’t you explain CFA stands for the Class Action Fairness Act, right? It does. That third word probably should start with the same letter but not be the same word because that doesn’t make things fair at all. What does CA do? I mean there used to be competitions and sometimes there still is amongst plaintiff’s lawyers trying to bring the same kind of class actions in different states, both claiming nationwide classes and everybody’s fighting to get an approval first so they can get the fee. And then so how does CA change how class act? I mean there’s MDL class cases
Jer Nixon:
All the time. Yeah, there are MDLs with class actions inside of them. We’ve been
Tim Cronin:
A part of a couple of them,
Jer Nixon:
But one of the main things in that CFA did was it made it, so basically defendants are always able to get class actions in federal court.
Tim Cronin:
If there’s enough people and money, you’re in federal court
Jer Nixon:
if there’s enough people and there’s minimal diversity, meaning just you’ve got one person outside the state, you can get it in federal court if it’s above $5 million and a lot of classes are in that zone.
Tim Cronin:
There’s one exception that can rarely be used if it’s a kind of case, well, there’s probably more that you know about than I know about, but I know that if it’s a class action where the defendant brings a claim against one of the claimants, they sue them first. You can counterclaim with a class action and you can keep it out of federal court and CAA doesn’t apply.
Jer Nixon:
Yeah, I mean there are some mechanisms where things can stay out of federal court other than just the home state exception where everything’s,
John Simon:
So back to my example, if somebody has a fraudulent charge on my cable bill or not cable, whatever bill, I guess I should just not pay it until they sue me. Yes. So if somebody calls me with that, I’ll just say, Hey, just don’t worry about that bill. Just throw it in the trash and when you get sued, give me a call.
Jer Nixon:
I mean, the problem is they’ll turn off your cable so you have that
Tim Cronin:
Too. You’re also going to go to collections and then if there’s not a meritorious class action, you might be paying out of your malpractice insurance.
Jer Nixon:
It’s a risky strategy, but it’s both.
Tim Cronin:
Let’s see if it pays off. So because of cfa, I mean most cases are going to be in federal court, in which case look, class action lawyers follow the other cases getting filed. So if there’s a really good one, they get filed by a lot of the big players around the same time. And then the defendant will petition the MDL panel and then you’ll go there and they’re to decide if there’s an MDL, and then they’ll set it and then they’ll appoint a steering committee.
Jer Nixon:
And even if it’s not an MDL and it’s just a nationwide class, it’ll be consolidated in one district. Everyone will file their motion for why they should be lead counsel. The judge will entertain ’em and the judge will pick and CFA set forth requirements or criteria on picking leadership. And some things are good. It doesn’t say the first firm to file gets the class action no matter what, which,
Tim Cronin:
Who’s best suited to represent the class
Jer Nixon:
Which, because ultimately the court has the duty due to protect the interest of absent class members.
Tim Cronin:
I mean, was it CFA or is it other something else that basically the court gives no mind to contingency fees. The fee for the attorneys is going to be loadstar based, but there can be a multiplier. In other words, the more work you put into it, typically the more counsel’s going to get paid.
Jer Nixon:
Yeah, there’s something of a circuit split on this, and out in the ninth circuit you’ll see a cap often of 25% on attorney’s fees. The seventh circuit likes percentage of the fund more because they think it makes sense because whenever you get a lawyer on an individual case, you go with a percentage of the case as a contingency. So they say that makes economic sense trying to cut down the fee award because class actions involve big numbers. Doesn’t make sense, but
Tim Cronin:
No, but there’s attempts to cut down the fee award so that plaintiff’s attorneys wouldn’t bring the class action.
Jer Nixon:
Yeah, absolutely. I mean, that’s the logic here, and it’s convinced a lot of judges. So most of the time in class actions, you’re keeping track of hours and you’re going to submit hours to the court. And even if you don’t have to do that, you need to keep track of hours and be ready to do that. And none of us keeping track of hours, but it’s something that you got to do.
Tim Cronin:
So Jer, I mean the biggest fight, not a lot of class actions go to trial. Am I right? You’re right. What’s the main fight You’re fighting? You’re trying to get class cert, right? Yes. And what are the factors for that?
Jer Nixon:
So classifications governed by Rule 23, which puts forth what look like pretty straightforward factors. You’ve got numerosity commonality, typicality adequacy, and then for a class where you’re seeking damages, money damages, that’s under 23 B three, there are two additional requirements which are predominance and superiority. So to go through those real quick, numerosity just basically says you got to have a bunch of people who are harmed. If you’ve only got five people who are harmed, it’s not numerosity, but some courts will say a number. They’ll say the threshold’s somewhere around 60, some will say a hundred, but you got to have a lot of people who are harmed in the same way. Usually it’s a lot more than that and it’s not an issue. Typicality just means you’re named Plaintiff needs to have the injury. That’s typical of the class that there is a typical,
Tim Cronin:
It can’t be an outlier. Commonality.
Jer Nixon:
Commonality is where you’re going to have the big fight in these first four. Usually it’s whether there are common questions that need to be resolved, and that’s why the case should be handled as a class action commonality is closely related to predominance, but it’s a little bit looser standard. So in commonality to meet commonality, you can have some pretty different questions that affect class members, but as long as you’ve got some core common questions, you’re good.
Tim Cronin:
So correct me if I’m wrong, the few cases I’ve gotten involved in, and it’s very few and I haven’t done it in quite a while, I bore keeping track of my hours, but in consumer fraud claims where you have a nationwide class, you end up having to talk about whether you’re going to have different subclasses because the consumer fraud statutes are so different in different states, and particularly if I remember correctly, it’s whether reliance is something you have to prove. And so is that something that’s often argued by the defendants? Like no. They have to have relied on the thing that you’re saying is fraudulent and that cannot affect the commonality question?
Jer Nixon:
Absolutely. Still the same issue since whenever you last handled one, Tim, I did not
Tim Cronin:
Like it then.
Jer Nixon:
Yeah, so whenever it’s a consumer fraud case, you’re often going to have a bunch of different state law, little FTC acts, whatever you want to call ’em, and they’re going to have slightly different language, and so you’re going to be governed by different standards. Often these will get, you’ll have classes that cover each different state where you can have maybe a representative from each state and then you’re going to have to argue about that. What’s happened now in some, I’ve seen it happen in some recent cases where you’ve got, say you have a nationwide consumer fraud class action. Everything’s been consolidated in one jurisdiction. The judge, no one really wants to get into, let’s write 300 page opinion on going through every claim in every state. So what I’ve seen a couple of times recently is the judge will say, okay, plaintiffs, you pick three bellwether states defendants, you pick three bellwether states, and now let’s litigate the three. You say the three you say, so we will have the motions focused on six states. You try to pick states that are representative of trends that are in other states where there maybe some
Tim Cronin:
Illinois’ law is a lot like these 12 other ones,
Jer Nixon:
And then fight out the motion to dismiss that way and then move forward. It’s one way to streamline things, but whenever you get to consumer claims, they’re going to be like that. It’s a reality of involving state law.
Tim Cronin:
So that’s commonality. Did we talk about adequacy?
Jer Nixon:
We did not talk about adequacy
John Simon:
That relates to the council, right?
Jer Nixon:
Adequacy relates to both the council and the class rep. Class rep. So the class rep needs to have no conflicts of interest with other class reps, and the counsel needs to also have no conflicts of interest, but needs to be able to handle the case with knowledge, experience, and resources.
Tim Cronin:
Is this often why a bunch of questions are asked of the class rep about any personal relationship they have with the attorney that’s representing them?
Jer Nixon:
That would be why.
Tim Cronin:
That’s your buddy. Yeah. He’s going to do what you want instead of the best interest of the class.
Jer Nixon:
So they’ll try to get that or that, I don’t know. It’s a person that somehow has an interest and that’s where they’re going to get paid more than the other class members or something like that.
Tim Cronin:
What are the B three, the predominance and
John Simon:
Those are the damaged ones. The B threes.
Jer Nixon:
B three is damages. B three is going to be the biggest fights because the first four are a little easier to meet. Predominance and superiority are requirements that the court’s going to do some what is referred to in case law as rigorous analysis and shouldn’t
Tim Cronin:
Everything be a rigorous analysis? Maybe I don’t want everything to be a rigorous
John Simon:
Analysis. Hold on now, Tim,
Jer Nixon:
So predominant is similar to commonality, but that the common issues need to predominate over the individual issues. Well,
John Simon:
By the way, the rigorous, I had a case that we filed not too long ago against an attorney that very well, and somehow it managed to get in the paper and we had nothing to do with it. It was just the nature of the case. And I got a letter kind of a
Tim Cronin:
Strongly worded, strongly
John Simon:
Worded letter saying kind of accusing us of somehow publicity. We just filed it and somebody picked it up and put it in the paper and said, I’ll have that. We are going to vigorously defend this case. And I said, well, number one, I hope you do that for all of your clients. And number two, hopefully in this case, most so in this case, because they really need it,
Tim Cronin:
They need a lot
John Simon:
Of help. They need a lot of vigorous defense. I’m glad you’re the right person for it. So,
Tim Cronin:
So predominance is the issue is predominant over other, what is it again, J?
Jer Nixon:
That the common issues must predominate over individual issues. Okay,
John Simon:
So in damages, does that mean you need to have some kind of liquidated amount or something, or at least a formula? You can’t have individual damage hearings. Right. In a class case,
Jer Nixon:
There are cases where you could have individual damages hearings. I’m not as a plaintiff’s class action lawyer, I’m not going to get up here and say that you cannot certify a class if you need to have individual damage inquiries. Courts have been pretty clear that damages can be different. So if there’s an antitrust violation about the price of ice tea and John bought a hundred ice teas and Tim bought 10, John’s damages are going to be a lot bigger. He’ll submit his claim, he’ll say, Hey, I bought this many ice teas, and he’ll get more damages. So damages can be different. The individual issues they’re worrying about are more along the lines of causation for
John Simon:
Class cases where the proof of the actual purchase or proof of the transaction is an issue or some of them settled where you fill out an affidavit or how does, how does that work?
Jer Nixon:
Yeah. That relates to what I’m going to call a made up requirement of class actions. Some would say it’s an implied requirement. The seventh circuit’s been clear. You don’t, adequacy is not a seventh factor here.
John Simon:
What’s an example of cases where like some consumer case, I guess you purchase some at the store, you don’t have a receipt for it?
Jer Nixon:
Yeah. If the case is about buying oranges at the store with cash, so there’s no transaction records of that, you might have a receipt, but there are some cases that say it’s okay to just say, Hey, we’re going to have publication notice. We’ll publish in the area where all the sales were made, and people can go to this website, they can make claims. If I bought whatever, then I make claim I have to sign an affidavit saying this is truthful and that’s good enough. Some courts will say that that is a problem with manageability and that you cannot, because you cannot ascertain who the class members are that you do not get class certification. It’s kind of a way that I don’t think it’s a real requirement because you shouldn’t get off because you harm people just because it’s a little hard to figure out who the people you harm are and you didn’t keep a record of them. Sometimes you’ll see it in cases where the defendant should have a record of who all these people are, but they delete all their information. They don’t want to be held accountable.
Tim Cronin:
Well, we’re going to take a break now on our session with JerNixon talking about class actions. We hope you join us to finish this discussion next time. This has been another episode of The. Jury is Out. I’m Tim Cronin.
Jer Nixon:
I’m Jer Nixon.
John Simon:
I’m John Simon. We’ll see you next time.
Announcer:
The Jury is, Out is brought to you by the Simon Law Firm at the Simon Law Firm pc. We believe in the power of pooling resources in order to create powerful results. We often lend our trial skills and experience to lawyers around the country to achieve better results for their clients. Our attorneys welcome the opportunity to work with you on your case, offering vast resources, seasoned litigators, and a sterling reputation. You can contact us at 2 4 1 2 9 2 9, and if you enjoyed the podcast, feel free to share your thoughts with John, Tim and Erich at comments at The. Jury is Out Law and subscribe today because the best lawyers never stop learning.
Notify me when there’s a new episode!
![]() |
The Jury is Out |
Hosted by John Simon, Erich Vieth, and Timothy Cronin, 'The Jury is Out' offers insight and mentorship to trial attorneys who want to better serve their clients and improve their practice with an additional focus on client relations, trial skills, and firm management.