class actions close-up
TRANSCRIPT
Class Actions Close-Up: Recent Developments and
What You Should Know for the Most Effective
Early Evaluation, Management, and Resolution of
Class Action Claims
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Agenda
� Point 1: Class Action Trends, Early Evaluation, and
Considerations for Assessing Class Actions
� Point 2: Effective and Strategic Use of Motion Practice in Class
Actions
� Point 3: Managing and Reducing the Discovery Burden in Class
Actions
� Point 4: Recent Developments in and Strategies for Class
Action Settlements
� Questions
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Class Actions Have High Risk
and High Exposure
� Nationwide Classes
� Huge Judgments
� “Bet The Company” Cases
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Early Case Assessment is Vital
� Assess Case Early
� Determine the Facts
� Analyze the Law
� Consider whether to Settle or Litigate
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Company’s Business Concerns
are Paramount
� Financial exposure
� Reputational and
Public relations
� Governmental
� Operational Interruption
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Early Case Management Tips
� Data holds
� Witnesses to be Interviewed
� Bifurcation
� Detailed Factual and Legal Analysis
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Removal “Motion”
� Removal under the Class Action Fairness Act
(“CAFA”)?
– Unique criteria exist for removal of class actions
– Is federal court really better?
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Motion to Compel Arbitration
� Arbitration provision enforceable?
� Class action waiver enforceable?
– SCOTUS has given arbitration favorable
treatment, but the CFPB has different ideas.
– Early analysis is critical.
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Early Dispositive Motions
� Motion to Dismiss
– Consider jurisdictional grounds
– Consider choice of law issues to limit class or
claims
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Class Action-Specific Motions
� Motion for Class Certification
– Motion to De-Certify; just
because a class is certified
doesn’t mean the battle is over
� Motion to Strike Class Allegations
– Can be made before discovery
opens or after discovery is
underway
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Pretrial Evidentiary Motions
� Expert witness motions
– Daubert (or state equivalent) motions to exclude or
limit expert testimony
– Especially crucial in mass tort cases
� Other motions in limine
Neil deGrasse TysonAlbert Einstein
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Managing The Process Is the Key
� Managing the class action discovery process is
critical from both a strategic and cost standpoint.
� Expensive and time consuming
� Difference between winning and losing
� Risk of sanctions and preclusion
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Process Goals
� Managing resources and controlling costs
� Limit the scope and sequence of class action
discovery
� Stay and/or bifurcate
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The Process
� Each step in the process should move toward:
� Narrowing universe of potentially producible
� Increasing knowledge base
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Courts May Be Willing To Stay Discovery
While Motion to Dismiss Is Pending
Scoma Chiropractic, P.A. v. Jackson Hewitt Inc., 2017 WL
2733758 (M.D. Fla. June 26, 2017) (staying discovery after
taking a “preliminary peek” at motion to dismiss and finding it
meritorious).
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Proposed Fairness in Class Action Litigation Act of 2017
would require stay of discovery in most consumer class
actions.
Example
Courts reluctant to bifurcate discovery, but
requirement of proportionality
supports phased discovery
Riddell Concussion Reduction
Litigation, 2016 WL 4119807, *2
(D.N.J. July 7, 2016) (declining to
bifurcate but ruling that “full blown
merits discovery is not required to
certify a class.”)
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Some federal courts, e.g. Arizona and Illinois, have implemented
mandatory initial pilot programs that require identification and
production of relevant ESI even before adversary serves a request.
Mbazomo v. ETourandTravel, Inc.
2017 WL 2346981 (E.D.C. May 30,
2017) (declining to bifurcate
discovery in TCPA class action).
Example 1: Example 2:
Caution
Best Demonstrated Practices (BDPs)
� Leverage people and technology
� Involve opposing counsel and Court
� Harvest the fruit
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Document Collection
� Data mapping
� Structured/unstructured
� Search terms and codes
� In-house or outside specialists
� Document the process
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Step 1 Step 2 Step 3
Document Review
� Contract attorneys/outside counsel
� Detailed review protocol
� Predictive coding
Products Liability Litigation (MDL
2391), 2013 WL 1729682, at *2 (N.D.
Ind. Apr. 18, 2013) (Court allowed,
over requestor’s objection, keyword
search before predictive coding took
place and did not require seed set to
be disclosed).
Judge Peck stated “[w]hat the Bar should take
away from this Opinion is that computer-assisted
review is an available tool and should be
seriously considered for use in large-data-volume
cases where it may save the producing party (or
both parties) significant amounts of legal fees in
document review.”
Moore v. Publicis Groupe,287 F.R.D. 182, 192-93 (S.D.N.Y. 2012)
Biomet M2a Magnum
Hip Implants
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Tips for The Class Action
Settlement Process
� Settlement Negotiations
� Selection of Settlement Administrator
� Motion for Preliminary Approval
� Effective Class Notice Strategy
� Final Approval
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Settlement Negotiations
� Individual v. Class Settlement
� Pre-Certification v. Post-Certification
� Offers of Judgment
� Injunctive Relief
� Notable Recent Settlements
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Selection of Settlement Administrator
� Select an experienced settlement administrator
� Understanding services provided by settlement
administrator
� Field is becoming more competitive – Try to
negotiate flat fee or cap
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Preliminary Approval –
Standards of Judicial Approval
Before Approving A Class Action Settlement, the Court
Must Decide Whether The Settlement is:
Fair, Adequate and Reasonable
Fair: Courts consider
whether the settlement is
an arm’s length
transaction and not the
product of collusion.
Courts consider the
parties negotiating with
the help of a mediator a
strong factor
Adequate: Courts
consider whether the
settlement reflects a
reasonable assessment
of the strengths and
weaknesses of the
claims and the risks of
establishing liability and
damages if the case
proceeded.
Reasonable: Court is
not called upon to
determine if the
settlement is the “best
possible deal;” courts
are to consider the
facts “in the light most
favorable to
settlement.”
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Seventh Circuit’s Five Factor Test
� Whether the settlement is a good result
in relation to the merits of the case
� Complexity, length, and expense of
further litigation
� Amount of opposition to the settlement
� Opinions of Counsel
� Stage of the proceeding and the amount
of discovery completed
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Tips On Notice Plan
� Federal Judicial Center Notice and Claims Process
Safe Harbor Checklist
� Judge Posner Trio - Cautionary Tales
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