Elijah Craig tasting competition

[Roguish Lawyer]

Originally Posted by vsvo

Not me. I haven't heard from the guys, so I didn't want to impose in case they are working on it.

I am waiting . . .

[vsvo]

LOL, OK, no more lame excuses. Let me go review my Civ Pro notes...

[vsvo]

We didn’t cover class actions in depth in Civ Pro, which was fine, since regular joinder was enough to confuse the h*ll out of everyone. Nevertheless, I think I can give an answer.

First, we must review the text of the rule. As noted by B1-3, class actions are governed by Rule 23 of the Federal Rules of Civil Procedure. Most states have class action statutes, and there are issues of jurisdiction and due process, but I’ll focus on the rule governing federal courts.

To achieve certification, a class action must meet ALL of the requirements of Rule 23(a), AND fit into one of the three types of Rule 23(b).

(a) Prerequisites to a Class Action. One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impractical, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

FED.R.CIV.P. 23(a).

These 23(a) requirements are commonly referred to as numerosity, commonality, typicality and adequacy of representation.

I will paraphrase Rule 23(b) for our purposes. Category 1 is technical, and has to do with the risk of inconsistent results if the class members were to litigate their claims separately. Category 2 covers civil rights claims, and is limited to cases where the plaintiffs are seeking injunctive or declaratory relief, not money damages. Category 3 is the one with which most people are familiar. It is the catch-all category, and covers all claims not captured in categories 1 and 2, as well as those in which the plaintiffs are seeking mainly money damages. This category covers the continuum of cases from multiple small claims on one end (e.g., a million customers ripped off by $1, improperly charged fees, etc.), to the “mass tort” on the other end (e.g., asbestos, tobacco, airplane crash, etc.)

Applying the rule to the few facts I can glean from this thread, the main issue is with commonality, although there are potential issues with numerosity as well.

NUMEROSITY

There is actually no threshold requirement for the number of plaintiffs required to form a class. While it’s true that small classes will most likely fail to receive certification, the key determination is whether the judge believes regular joinder would be “impractical.”

Courts have certified classes of 14, as well as denied classes of 15 for being too small. In the present case, we have yet to identify the potential class members, and that ties in with the issues in commonality.

COMMONALITY

As jatx mentioned, we must identify a question of law and fact; more importantly, that question must be shared among the class. In other words, the characteristics which the plaintiffs share must matter in terms of the substantive law on which the cause of action is based. Thus, if every plaintiff had to individually prove his/her case to establish liability, there would be no commonality.

The courts actually construe this requirement very liberally; the common question doesn’t even need to predominate. The fact that one or two class members have individual questions would not preclude commonality.

CONCLUSION

We need to identify a question of fact and law for the representative plaintiff (TR), then identify other class members who share that question such that mere joinder of all the claims would be “impractical.” Because we have not yet done so, the class would not be certified.

[Roguish Lawyer]

What other requirements exist? Which ones apply here?

[Bravo1-3]

Here's the entire rule:

Rule 23. Class Actions

(a) Prerequisites to a Class Action.

One or more members of a class may sue or be sued as representative parties on behalf of all only if
(1) the class is so numerous that joinder of all members is impracticable,
(2) there are questions of law or fact common to the class,
(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and
(4) the representative parties will fairly and adequately protect the interests of the class.

(b) Class Actions Maintainable.

An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:

(1) the prosecution of separate actions by or against individual members of the class would create a risk of

(A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or

(B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or

(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include:
(A) the interest of members of the class in individually controlling the prosecution or defense of separate actions;
(B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class;
(C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum;
(D) the difficulties likely to be encountered in the management of a class action.

(c) Determining by Order Whether to Certify a Class Action; Appointing Class Counsel; Notice and Membership in Class; Judgment; Multiple Classes and Subclasses.

(1) (A) When a person sues or is sued as a representative of a class, the court must — at an early practicable time — determine by order whether to certify the action as a class action..

(B) An order certifying a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g).

(C) An order under Rule 23(c)(1) may be altered or amended before final judgment.

(2) (A) For any class certified under Rule 23(b)(1) or (2), the court may direct appropriate notice to the class.

(B) For any class certified under Rule 23(b)(3), the court must direct to class members the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must concisely and clearly state in plain, easily understood language:

the nature of the action,
the definition of the class certified,
the class claims, issues, or defenses,
that a class member may enter an appearance through counsel if the member so desires,
that the court will exclude from the class any member who requests exclusion, stating when and how members may elect to be excluded, and
the binding effect of a class judgment on class members under Rule 23(c)(3).
(3) The judgment in an action maintained as a class action under subdivision (b)(1) or (b)(2), whether or not favorable to the class, shall include and describe those whom the court finds to be members of the class. The judgment in an action maintained as a class action under subdivision (b)(3), whether or not favorable to the class, shall include and specify or describe those to whom the notice provided in subdivision (c)(2) was directed, and who have not requested exclusion, and whom the court finds to be members of the class.

(4) When appropriate
(A) an action may be brought or maintained as a class action with respect to particular issues, or
(B) a class may be divided into subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly.

(d) Orders in Conduct of Actions.

In the conduct of actions to which this rule applies, the court may make appropriate orders:
(1) determining the course of proceedings or prescribing measures to prevent undue repetition or complication in the presentation of evidence or argument;
(2) requiring, for the protection of the members of the class or otherwise for the fair conduct of the action, that notice be given in such manner as the court may direct to some or all of the members of any step in the action, or of the proposed extent of the judgment, or of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action;
(3) imposing conditions on the representative parties or on intervenors;
(4) requiring that the pleadings be amended to eliminate therefrom allegations as to representation of absent persons, and that the action proceed accordingly;
(5) dealing with similar procedural matters. The orders may be combined with an order under Rule 16, and may be altered or amended as may be desirable from time to time.

(e) Settlement, Voluntary Dismissal, or Compromise.

(1) (A) The court must approve any settlement, voluntary dismissal, or compromise of the claims, issues, or defenses of a certified class.

(B) The court must direct notice in a reasonable manner to all class members who would be bound by a proposed settlement, voluntary dismissal, or compromise.

(C) The court may approve a settlement, voluntary dismissal, or compromise that would bind class members only after a hearing and on finding that the settlement, voluntary dismissal, or compromise is fair, reasonable, and adequate.

(2) The parties seeking approval of a settlement, voluntary dismissal, or compromise under Rule 23(e)(1) must file a statement identifying any agreement made in connection with the proposed settlement, voluntary dismissal, or compromise.

(3) In an action previously certified as a class action under Rule 23(b)(3), the court may refuse to approve a settlement unless it affords a new opportunity to request exclusion to individual class members who had an earlier opportunity to request exclusion but did not do so.

(4) (A) Any class member may object to a proposed settlement, voluntary dismissal, or compromise that requires court approval under Rule 23(e)(1)(A).

(B) An objection made under Rule 23(e)(4)(A) may be withdrawn only with the court's approval.

(f) Appeals.

A court of appeals may in its discretion permit an appeal from an order of a district court granting or denying class action certification under this rule if application is made to it within ten days after entry of the order. An appeal does not stay proceedings in the district court unless the district judge or the court of appeals so orders.

(g) Class Counsel.

(1) Appointing Class Counsel.

(A) Unless a statute provides otherwise, a court that certifies a class must appoint class counsel.

(B) An attorney appointed to serve as class counsel must fairly and adequately represent the interests of the class.

(C) In appointing class counsel, the court

(i) must consider:

the work counsel has done in identifying or investigating potential claims in the action,
counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, counsel's knowledge of the applicable law, and the resources counsel will commit to representing the class;
(ii) may consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class;

(iii) may direct potential class counsel to provide information on any subject pertinent to the appointment and to propose terms for attorney fees and nontaxable costs; and

(iv) may make further orders in connection with the appointment.

(2) Appointment Procedure.

(A) The court may designate interim counsel to act on behalf of the putative class before determining whether to certify the action as a class action.

(B) When there is one applicant for appointment as class counsel, the court may appoint that applicant only if the applicant is adequate under Rule 23(g)(1)(B) and (C). If more than one adequate applicant seeks appointment as class counsel, the court must appoint the applicant best able to represent the interests of the class.

(C) The order appointing class counsel may include provisions about the award of attorney fees or nontaxable costs under Rule 23(h).

(h) Attorney Fees Award.

In an action certified as a class action, the court may award reasonable attorney fees and nontaxable costs authorized by law or by agreement of the parties as follows:

[Bravo1-3]

(1) Motion for Award of Attorney Fees.

A claim for an award of attorney fees and nontaxable costs must be made by motion under Rule 54(d)(2), subject to the provisions of this subdivision, at a time set by the court. Notice of the motion must be served on all parties and, for motions by class counsel, directed to class members in a reasonable manner.

(2) Objections to Motion.

A class member, or a party from whom payment is sought, may object to the motion.

(3) Hearing and Findings.

The court may hold a hearing and must find the facts and state its conclusions of law on the motion under Rule 52(a).

(4) Reference to Special Master or Magistrate Judge.

The court may refer issues related to the amount of the award to a special master or to a magistrate judge as provided in Rule 54(d)(2)(D).

[vsvo]

Originally Posted by Roguish Lawyer

What other requirements exist? Which ones apply here?

We have one allegedly bad bottle potentially causing harm or injury to one person, which calls for further detailed factual analysis of this individual situation. Unless there is a general question, the resolution of which would bind all the claims, such as a defect in the distillation process, we would be left with individual issues to litigate. Each claim would require factual analysis on a case-by-case basis to determine why the plaintiff perceived his/her respective bottle to be bad, frustrating the efficiency goals of a class action.

Because the individual issues here would seem to overwhelm an indeterminate general question, the commonality requirement would not be met, and the claim would not be certified as a class action.

[Roguish Lawyer]

Originally Posted by Roguish Lawyer

I really liked the Noah's Mill. I believe it was the first one we tried, so it had the disadvantage of completely sober tasters, but it was very smooth with a distinctive peppery taste. High proof, like the Booker's. I will not let the rest go to waste. The others did not care for it as much as I did.

I poured some more of this last night, and I regret to report that I did not care for it at all. During the tasting we did a while ago, we just had a little taste of each. The Noah's Mill was interesting because it was so peppery. I found last night, however, that it was not suitable for consumption in the quantity I required. The pepper really burned, and I ended up mixing in some Sprite so as not to waste the alcohol.

I don't see myself buying more of this.

[lksteve]

Originally Posted by Roguish Lawyer

I found last night, however, that it was not suitable for consumption in the quantity I required.

and what quantity might that be...?

[Roguish Lawyer]

Originally Posted by lksteve

and what quantity might that be...?

I poured about four fingers. Well, one finger if it's from Harsey's hand . . .

[brewmonkey]

During last nights tasting was it from a previously opened bottle or was this a new sealed bottle?

[Roguish Lawyer]

Originally Posted by brewmonkey

During last nights tasting was it from a previously opened bottle or was this a new sealed bottle?

Same bottle.

[brewmonkey]

Rye already has a pretty peppery/spicy component to it and I am wondering if oxidation would bring out that flavor even more in a bourbon.

It is hard to compare what I saw in the brewhouse to distilled spirits as they are very different but I know that the Rye we made, 40% Rye & 60% Malted Barley, while peppery out of the fermentation was much more so 3-5 weeks later after the effects of oxidation had taken hold and more so as time passed. It got to the point it would be almost too spicey past 12 weeks in the brite tanks so we had to cut back the Rye to 20% or so to get what we were looking for.

Of course this was all just our perception and I have no solid empirical data to back this up.

[lrd]

Originally Posted by Roguish Lawyer

I poured some more of this last night, and I regret to report that I did not care for it at all. During the tasting we did a while ago, we just had a little taste of each. The Noah's Mill was interesting because it was so peppery. I found last night, however, that it was not suitable for consumption in the quantity I required. The pepper really burned, and I ended up mixing in some Sprite so as not to waste the alcohol.

I don't see myself buying more of this.

Thanks for the update, RL. We were going to buy a bottle of this for a good friend who was recently promoted. I think we'll pick something else.

[The Reaper]

Originally Posted by lrd

Thanks for the update, RL. We were going to buy a bottle of this for a good friend who was recently promoted. I think we'll pick something else.

IMHO, on the top shelf, Pappy Van Winkle's.

The Booker's and Blanton's.

For the more budget minded, Knob Creek would be my recommendation.

All excellent bourbons.

HTH.

TR