Manageability

Challenges to manageability usually are raised by defendants who assert that the class is too large. The majority of authorities confronted with such a challenge have adopted opinion language that parallels the typical court opinion saying that if management problems are speculative and not already apparent in the litigation. the class is proper. Difficulties in management are of significance only if they make the class action a less fair and efficient method of adjudication than other available techniques.

The determination is usually placed in the context that difficulties in management will not render the action improper for certification. Courts today are aware that the limited number of capable class action lawyers working in a professional, although adverse, environment and with the assistance of the court can properly and effectively manage the litigation of class cases even though any particular action may be complex. The view that today’s class action bar on either side of a case can properly resolve even a legally or factually difficult case is enhanced by the court’s understanding of the technological aids that exist in virtually every law office.

The usual scenario is one in which the proposed class is presented as possessing the requite characteristics of the governing rule. The defendant opposing certification similarly asserts two problem themes of the proposed class that should, it is argued, defeat the application for class certification. The first is that the complexities of the defendant’s business or course of conduct make it impossible for common issues among class members to predominate via-a-vis individual issues. Second, class action defendants often insist that any given case will be unmanageable because the court will be required to deal with hundreds, thousands or even millions of class members’ disparate damages.

In considering whether the proposed class complies with each of the rule’s requirements case law and history indicate that courts generally reject such defensive assertions. An expression of the common treatment by trial courts of the manageability criterion can be seen in several opinions recognizing the basic claim, and thus the uniform proof, of the defendant’s challenge behavior.

Defendants often insist that this case will be unmanageable as a class action because the proposed class will number in the millions and will involve millions of transactions, requiring mini-trials for millions of class members. The court cannot properly deny certification, merely because the number of plaintiffs makes the proceeding complex or difficult. Difficulties in management are of significance only if they make the class action a less fair and efficient method of adjudication than other available techniques.

It is not uncommon for class action defense counsel to assert that the proposed case against their commercial client is more complex than any DNA code and thus incapable of certification. The argument is usually placed in the context that says the case is impossible for the court to understand; more difficult perhaps than the structure of some distant galaxy – and thus unmanageable.

Other Courts recognize the nature and efficiency of the bench and bar in today’s litigation environment.

[with] the extensive armory of tools provided by the Federal Rules of Civil Procedure and developed by federal courts throughout the country, and with the aid of imaginative and efficient counsel, this court has concluded that these problems does not warrant refusal to certify.

Both sides are well organized and although there are no obvious areas of concern, the Court believes that problems can be handled. Even if it is eventually decided that damages must be determined on an individual basis, there are many avenues available. It may be possible to establish a formula for computing damages, or the damage issue could be referred to a Special Master. In neither case would it be necessary to conduct numerous mini-trials on the issue of damages. ''Dismissal for management reasons, in view of the public interest involved in class actions, should be the exception rather than the rule.''

With the class action recognized by courts and commentators as a procedural device to accomplish the dual purposes of convenience for the parties as well as a method for prompt and efficient judicial administration, it is almost axiomatic that a defendant should not be permitted to avoid responsibility for its conduct because of the magnitude of the loss it has caused the proposed class. Visions of unmanageability disappear after the contentions raised at a certification hearing are overcome. Management of litigation of constantly increasing magnitude and economic complexity has become the norm for counsel and courts: unless the difficulties in management make the class action a less fair and efficient method of case resolution, manageability should be confirmed. To do otherwise would create a situation in which absent class members would have no realistic day in court because the foolhardiness of litigating a small claim against a commercial or industrial defendant having overwhelming financial resources to protect its challenged activity.

The usual claim by such commercial or industrial entities being given credence by a court and serving to defeat class certification for management reasons could give rise to an irrational and unjust business environment. The innovative defendant likely would be tempted to engage in even greater wrongful conduct by reasoning that if it engages in severe enough inappropriate conduct over a sufficiently long time period and it causes a small, but significant, monetary loss to a large universe of consumers, they will then be able to successfully assert failure to meet the manageability criterion and thereby escape answering for its wrongful conduct.

That sort of ''the sky is falling'' defense argument asserting unmanageability is frequently raised. Almost without exception courts reject it with a rationale’ similar to the following:

But defendants’ parade of horrors is chimerical. They know, as does this Court, that this case can be managed. It does not take a battalion of rocket scientists to handle a large case – although each side clearly have talented and competent counsel. If the plaintiffs’ claims are substantiated, a question as to which the Court presently has no opinion, the class action mechanism is clearly the most efficient means of resolving the many claims which may be asserted. The court is confident that stated classes or subclasses will make the case comfortably if not easily manageable. If the case were not handled as a class, thousands of small claims would be either brought or unjustly abandoned. The first possibility would be a flood of cases, the second would involve individual claims abandoned because of cost.

Fortunately for the public, courts are mindful that dismissal of class cases for management reasons is never favored. The vehicle of class action is meant to permit plaintiffs with small claims and little money to pursue a claim other wise unavailable. A contrary rule would essentially preclude class treatment whenever separate issues had to be tried.

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