¶¶ Case 1:13-cv-05174-NRB Document 69 Filed 05/06/14 Page 28 of 33 21 2.A, 2.E stand in conflict with the “plain meaning” of the Federal Rules.17 Therefore, Plaintiff contend that an Act of Congress, 28 U.S.C. § 2072(a), pre- empts the Court’s instruction to the Clerk to strike such motions on grounds of non-compliance with the Individual Practices. (2) Pre-Motion Conference Requirements Impede Procedural Due Process With Respect To Rule 12(d) and Rule 12(i) When litigants are not afforded the opportunity to file a motion because of an express prohibition, the litigant's due process rights are violated.

“Roughly estimating the gross damages to the class as a whole and only Case 5:16-cv-00125-gwc Document 215 Filed 11/27/18 Page 44 of 51 36 subsequently allowing for the processing of individual claims would inevitably alter defendants’ substantive right to pay damages reflective of their actual liability.” Id. This would violate the Rules Enabling Act, 28 U.S.C. § 2072(b), by allowing Rule 23’s class action device to abridge a substantive right. See Amchem, 521 U.S. at 613; McLaughlin, 522 F.3d at 231.

Id. at 2561 (citing 28 U.S.C. § 2072(b)). a. Lack of consent is an individualized issue.

See American Pipe, 414 U.S. at 555 (a representative class action “notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs”); accord Citigroup, 822 F. Supp. 2d at 380-81 (quoting Joseph, 223 F.3d at 1168). As further set forth in the Omnibus Opposition, applying the American Pipe doctrine to allow Plaintiffs’ rights of action to proceed in this proceeding, where Plaintiffs’ same rights of action were timely brought in the representative Consolidated Class Action, would not violate the Rules Enabling Act, 28 U.S.C. § 2072(b), but rather merely “regulate procedure” under the standard articulated by the Supreme Court in Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941) and the plurality in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010). See Omnibus Opposition at 24-25, Twersky Decl.

See American Pipe, 414 U.S. at 555 (a representative class action “notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs”); accord Citigroup, 822 F. Supp. 2d at 380-81 (quoting Joseph, 223 F.3d at 1168). As set forth in the Omnibus Opposition, applying the American Pipe doctrine to allow Plaintiffs’ rights of action to proceed in this proceeding, where Plaintiffs’ same rights of action were timely brought in the representative Consolidated Class Action, would not violate the Rules Enabling Act, 28 U.S.C. § 2072(b), but rather merely “regulate procedure” under the standard articulated by the Supreme Court in Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941) and the plurality in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407 (2010). See Omnibus Opposition at 24-25, Twersky Decl.

The Court has even reiterated the point in a post-Behrend antitrust case, noting that “the antitrust laws do not guarantee an affordable procedural path to the vindication of every claim” and that any presumption that class action procedures must be available in antitrust cases likely “would be an ‘abridg[ment]’ or ‘modif[ication]’ of a ‘substantive right’ forbidden to the Rules[.]” Am. Express, 133 S. Ct. at 2309-10 (quoting 28 U.S.C. § 2072(b)). Case 1:07-mc-00489-PLF-JMF Document 718 Filed 07/10/14 Page 18 of 89 13 The Court has also addressed what is expected of expert proofs offered in support of class certification.

6 The D.C. Act Confers Substantive Rights and Remedies. 3. Because "federal rules 'shall not abridge, enlarge or modify any substantive right'" under state law, the court must "consider whether the rule can reasonably be interpreted to avoid that impermissible result," particularly where the federal rule "would displace a state law that is . . . so intertwined with a state right or remedy that it functions to define the scope of the state- created right." Shady Grove, 130 S. Ct. at 1451-52 (Stevens, J.) (quoting 28 U.S.C. § 2072). In this regard, Abbas characterizes the D.C. Act as "'a summary dismissal procedure that the Defendants . . . seek to clothe in the costume of the substantive right of immunity'" and then 6 In passing, Abbas appears to contend that the provision of the D.C. Act staying discovery conflicts with the federal rules.

The Rules Enabling Act disallows “general rules of practice and procedure” promulgated by the Supreme Court to “abridge, enlarge or modify any substantive right”. 28 U.S.C. § 2072(a), (b). See In re Lehman, 2011 WL 3211364, at *34.

See Howe, 2018 WL 2212982, at *4. The Rules Enabling Act empowers the judiciary to promulgate “general rules of practice and procedure,” but such rules cannot “abridge, enlarge or modify any substantive right.” 28 U.S.C. §§ 2072(a) and (b). Accordingly, the Supreme Court has repeatedly held that Rule 23 cannot abrogate the rights a defendant would enjoy in an individual action. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612 (1997) (“Rule 23’s [class action] requirements must be interpreted in keeping with . . . the Rules Enabling Act.’”); see also Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999) (adopting a “limiting construction” of Rule 23 in order to “minimiz[e] potential conflict with the Rules Enabling Act” and “avoid[] serious constitutional concerns”).

However, Congress explicitly limited this grant of authority by specifying that “[s]uch rules shall not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072(b). “The use of the term ‘shall’ in the statute’s language indicates its mandatory nature.”