New Resource: MDL Class Notice Order, Plaintiff Common Proof Brief - April 11, 2008

Following Judge Miller's certification orders for 19 states on March 25, things just might be speeding up in the multi-district litigation.

Last week, Judge Miller issued an order outlining the content and timing for the class notice order that will be sent to all potential class members.  The order centered on the national ERISA claim and the KS state claim but will seemingly be applied to all other state class claims.  Some key takeaways from the order: there will be one class notice (not two ie a separate notice for ERISA and second notice for state claim), there will be an opt-out process but there will not be an opt-out form included with the notice, language that threatens potential discovery by FedEx will not be included and FedEx will not insert propaganda into the notice.

On that last item, Judge Miller said:

FedEx seeks to add information about FedEx's right to express their opinion about the lawsuit.  While FedEx believes it needs to express to the class that it has a right to express its opinion, that is not the purpose of class notice.  Class notice is meant to inform the class of their rights, but it is not meant to protect the rights of the defendant.  (See In re Brand Name Prescription Drugs Antitrust Litigation, 1995 WL 23058 at *1.)  Consequently, this Court declines to entertain FedEx's suggestion that the notice include information about FedEx's  right to express its opinion.  (Original emphasis)

As for the timing, the final notice will be approved and an order directing the notice will be mailed will be sooner rather than later.

Based on this class definition, this Court certified class actions for the Kansas and ERISA case.  FedEx had the opportunity to raise arguments about the insufficiency of this definition while this Court considered FedEx's opposition to Plaintiff's motions for class certification.  This Court will not revisit whether the definition of the class is appropriate as a basis to delay class notice.   In summary FedEx has not offered any persuasive justification for delaying the issuance of class notice at this time.

Another FedEx delay tactic.  Another FedEx loss.

The second filing is the Plaintiff's brief on common proof.  This brief lays out some of the evidence that the drivers' lawyers will submit to prove the control over the drivers by FedEx to support a ruling that finds employee status.  Again, the drivers' lawyers here will offer evidence that goes to the common experience of drivers in the states where class claims have been certified.

There is a good discussion on the "individual versus policy" control factors over at FedExaminer.com  for anyone who is interested.