Follow-On Class Action to an Individual Suit = Double Jeopardy?

[Paul84]

What is the name of your state (only U.S. law)? NY Federal

If a court rules on an individual (pro se) plaintiff's lawsuit in an antitrust action, can another law firm then swoop in and use the same set of facts or arguments to file a class action on behalf of other, similarly affected plaintiffs? Or would that be considered double jeopardy?

It's not uncommon for private class actions to follow e.g. a Dep't of Justice antitrust suit, but I was wondering whether such actions can occur after a private (pro se) lawsuit. I mention pro se because the obvious response would be: why would the first case not go off as a class action? (Because a pro se cannot represent others.)

 

[Zigner]

What is the name of your state (only U.S. law)? NY Federal

If a court rules on an individual plaintiff's lawsuit in an antitrust action, can another law firm then swoop in and use the same set of facts or arguments to file a class action on behalf of other, similarly affected plaintiffs? Or would that be considered double jeopardy?

It's not uncommon for private class actions to follow e.g. a Dep't of Justice antitrust suit, but I was wondering whether such actions can occur after a private lawsuit.

While we don't generally "do" hypotheticals...

This is not "double-jeopardy" by any stretch of the imagination.

 

[Silverplum]

What is the name of your state (only U.S. law)? NY Federal

If a court rules on an individual plaintiff's lawsuit in an antitrust action, can another law firm then swoop in and use the same set of facts or arguments to file a class action on behalf of other, similarly affected plaintiffs? Or would that be considered double jeopardy?

It's not uncommon for private class actions to follow e.g. a Dep't of Justice antitrust suit, but I was wondering whether such actions can occur after a private lawsuit.

"Double jeopardy" is a legal concept that protects individuals in criminal cases, not corporations in civil suits.

http://legal-dictionary.thefreedictionary.com/double+jeopardy

 

[Paul84]

"Double jeopardy" is a legal concept that protects individuals in criminal cases, not corporations in civil suits.

http://legal-dictionary.thefreedictionary.com/double+jeopardy

Thanks, both of you. That's very helpful.

 

[You Are Guilty]

It's written for CO law, but NY is substantially similar. See if this helps:

 

[Silverplum]

It's written for CO law, but NY is substantially similar. See if this helps:

http://www.burgsimpson.com/pdf/civlitjulyv01clean.pdf[/img[/QUOTE]

(IMHO) Everything [I]Colorado[/I] is just a little better than anything [I]New York[/I]. ;) :cool:

 

[Paul84]

Can common-law judges break out of their essentially passive role with a pro se?

It's written for CO law, but NY is substantially similar. See if this helps:

http://www.burgsimpson.com/pdf/civlitjulyv01clean.pdf[/img[/QUOTE]

Thank you very much again, Silverplum. That article was excellent.

I've heard that judge's opinions and orders sometimes provide guidance such as hints on how to fix a complaint. With a [I]pro se[/I] plaintiff, I wonder whether an opinion, based on prevailing law and averred facts in the complaint, might even require or subtly suggest the insertion of an additional cause of action - due to [I]claim preclusion/res judicata[/I]'s barring any possible, future re-litigation between the parties. In other words, in the interest of justice, could a common-law U.S. judge ever assume the more active (inquisitorial) aspects of a European judge?

 

[Paul84]

While we don't generally "do" hypotheticals...

This is not "double-jeopardy" by any stretch of the imagination.

Sorry for a related hypothetical, but it's best to be prepared. I recently spoke to lawyers from two NYC antitrust law firms in very general terms about the relevant antitrust claim in my multi-claim case. I did so in a way that they could not identify or look up the case. Both seemed keen, and one expressed surprise he hadn't heard of it--probably because upon its filing, the court categorized the case under a different cause of action (via one of the other claims).

At any rate, after the discussions, I was just as surprised that once the case becomes known, e.g. via a judge's opinion, and presumably survives, any law firm, without my knowledge or consent, can take it up as a class action to run in tandem with my private action. If so, is there any way for me to influence the selection--e.g. to a firm or lawyer(s) that I would prefer to work with? I was also concerned to learn that such a process would slow down the case's progression even further--to allow whatever firm(s) the court chose to catch up with the stage of proceedings that I am at. Unlike most antitrust cases, mine does not involve rocket science in (a) proving liability, (b) determining the nature, extent, and amount of damages, or (c) certifying a class of claimants.

 

[latigo]

What is the name of your state (only U.S. law)? NY Federal

If a court rules on an individual (pro se) plaintiff's lawsuit in an antitrust action, can another law firm then swoop in and use the same set of facts or arguments to file a class action on behalf of other, similarly affected plaintiffs? Or would that be considered double jeopardy? . . .

It seems to me that one who supposedly has extensive experience as “a pro se litigant in complex litigation in federal court”: and "has researched a wide variety of practice areas” and “the writing of legal arguments”, etc., etc., might easily learn the difference between “double jeopardy” and “res judicata”. It ain't complicated.

 

[Paul84]

parallel class-action suit

About three months ago, I spoke in generic terms with a partner at a leading law firm in NYC about one of my pro-se lawsuit's claims that has strong class-action potential. I used a pseudonym and did not identify the defendants by name. The partner seemed interested and has been helpful in forwarding to me recent rulings on similar causes of action. As a result, I would prefer that this firm get any role as lead counsel in a potential parallel class-action that might be filed if and when my case becomes publicly known after a judge's ruling on the motion to dismiss.

Question: Is there any downside to sharing the case number with the lawyer to enable the law firm to get up to speed in advance? I'm now in the eighth month since briefing closed, so the judge's ruling could come within days or not for several more months.

 

[OHRoadwarrior]

It seems what you want to somehow attempt is to license the legal argument presented to financially benefit yourself. I suggest you seek a continuance, go to law school, become licensed then start your own class action.

 

[Paul84]

It seems what you want to somehow attempt is to license the legal argument presented to financially benefit yourself. I suggest you seek a continuance, go to law school, become licensed then start your own class action.

If anything, the law firm would be benefiting from the legal arguments I have already made in my brief opposing the motion to dismiss as well as the factual evidence in my amended complaint. I could see a potential benefit via cost savings for me from their deep pockets in conducting depositions or retaining expert witnesses, which I do not currently plan to do. In terms of any financial settlement or award from a trial, it's clear that the lawyers, rather than the class-action plaintiffs whom they represent, get the lion's share of any proceeds (as measured on a per-capita basis).

What I'm asking about is the potential downside for an individual plaintiff from a concurrent class action. Is there any?

 

[Paul84]

Does attorney-client privilege apply to prospective clients?

(1) Am I correct in assuming that this privilege applies to prospective clients in addition to actual clients of an attorney?

An antitrust lawyer, with whom I may work, asked for the name of the defendants to run a conflict-of-interest check for her firm. I suggested that instead she could provide a list of clients that her firm has handled in a particular industry, and I would do the check myself. Am hesitant to provide the defendants' name because then the attorney could easily find the case etc.

(2) Would the same attorney-client privilege prevent her from even identifying her firm's previous (or current) clients to enable me to do the conflict-of-interest check?

 

[quincy]

(1) Am I correct in assuming that this privilege applies to prospective clients in addition to actual clients of an attorney?

An antitrust lawyer, with whom I may work, asked for the name of the defendants to run a conflict-of-interest check for her firm. I suggested that instead she could provide a list of clients that her firm has handled in a particular industry, and I would do the check myself. Am hesitant to provide the defendants' name because then the attorney could easily find the case etc.

(2) Would the same attorney-client privilege prevent her from even identifying her firm's previous (or current) clients to enable me to do the conflict-of-interest check?

Why don't you ask the antitrust lawyer with whom you may work?

 

[tranquility]

The "attorney client privilege" would probably not prevent the attorney from disclosing client names. Prudence would be enough. There is no business person on earth who would turn over such a list to a stranger. If one asked us, I would give the polite smile indicating our conversation has ended and stand while thanking the crazy person for his time while asking the secretary to show him out. Heck, we don't even disclose to others if a single person is a client without getting a signed release. A list? Wow, look at the time!

But, if they needed a reason, I might go with the ethical duty of confidentiality.