Class Actions Close-Up

Class Actions Close-Up: Recent Developments and

What You Should Know for the Most Effective

Early Evaluation, Management, and Resolution of

Class Action Claims

1

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

2

POINT 1

Class Action Trends, Early Evaluation, and

Considerations for Assessing Class Actions

3

Class Actions are Serious Business

Legal Fees - $2 Billion

½ of all Companies 4

Class Actions Have High Risk

and High Exposure

� Nationwide Classes

� Huge Judgments

� “Bet The Company” Cases

5

Class Action Trends

Consumer

Securities Employment

6

No Trivial Cases

� “Minor” regulation

� “Unreasonable” customer

� “Low” dollar

7

Early Case Assessment is Vital

� Assess Case Early

� Determine the Facts

� Analyze the Law

� Consider whether to Settle or Litigate

8

Company’s Business Concerns

are Paramount

� Financial exposure

� Reputational and

Public relations

� Governmental

� Operational Interruption

9

Early Case Management Tips

� Data holds

� Witnesses to be Interviewed

� Bifurcation

� Detailed Factual and Legal Analysis

10

Benefits of Early Settlement Evaluation

Settle v. Litigate

Venue matters

Who is bound?

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POINT 2

Effective and Strategic Use of Motion Practice

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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

17

POINT 3

Managing and Reducing the Discovery Burden in

Class Actions

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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).

22

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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Document Production

� Form in which ESI produced

� Production platform

� Cost sharing

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POINT 4

The Settlement Process: Recent Developments

and Practical Tips

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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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Other Circuits’ Factor Tests

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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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Final Approval

� Final Fairness Hearing

� Opt-out v. Objectors

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