A few years ago, legal commentators speculated that class action litigation might have passed its zenith. The Class Action Fairness Act (CAFA), it was hoped, would allow rational disposition of class cases and permit appellate review by competent judges with no concern for re-election. The death of class action litigation has been greatly exaggerated.
Certain federal courts have picked up where state courts left off, certifying classes in the face of intractable problems of individual proof. New filings in certain jurisdictions, like the Northern District of California, occur daily. State courts, for their part, have eroded legislative efforts to curtail laws that promoted meritless class litigation. Federal statutes, such as the Telephone Consumer Privacy Act (TCPA) and the Fair and Accurate Credit Transaction Act (FACTA) amendments to the Fair Credit Reporting Act, have spawned waves of new lawsuits. The Internet and the media have also ensured that new filings receive national attention, making the proliferation of “copycat” actions a constant risk.
Class actions continue to pose substantial threats to corporations. At minimum, they can hurt sales and tarnish reputations. At worst, they can bankrupt companies that provide critical goods and services, employ thousands of people and whose conduct harmed no one. The plaintiffs’ bar has learned from past failures, and continues to look for ways to confront defendants with the grim choice of potentially annihilating liability or extortionate settlements.
Defending Class Action Litigation
Experienced class action attorneys bring an aggressive approach to defending class action litigation. Nothing begets class litigation more than easy settlements, and nothing discourages it more than corporate resolve to fight. It is important to have attorneys who fully dedicate their practices to class action defense, supported by crisis managers, trial lawyers and appellate specialists who assist in all phases of class litigation. They focus on the disciplines at the center of class action litigation: consumer fraud/deceptive trade practice, statutory claims, antitrust, employment, healthcare, product liability, toxic tort and environmental.
industries targeted by class action plaintiffs, including:
- Automotive
- Construction
- Consumer products
- Financial services
- Food and beverage
- Healthcare
- Information technology
- Insurance
- Life sciences
- Manufacturing
- Public Entities
- Retail
- Web-based business
Pretrial Strategy
The first steps are to attain a complete understanding of the dispute and the client’s business and reputational needs. Then to construct the client’s defense to meet short and long term goals.
At the inception of a case, the attorneys scrutinize jurisdiction, venue and judicial assignment to ensure the best chance for a successful defense. Early motion practice typically seeks dismissal and favorable case management provisions.
The discovery plan focuses on individual issues and presenting evidence to demonstrate that the rights of absent class members cannot be adjudicated through representative or “classwide” proof. Then find talented, honest experts to inform courts why they cannot and should not treat all class members alike.
The attorneys furnish trial and appellate courts with cogent briefs that set forth the impracticality of lumping dissimilar claims together for common resolution. Then show that class certification will deprive the defendant of substantive rights and will not advance the interests of the putative class.
Through it all, it is important to take principled positions, accord professional courtesy and build trust with opponents and the court.
Trial and Settlement
Our trial teams have been tested and proven in high-stakes litigation. They give us an ultimate weapon to win cases. Over the years, our trial readiness has often caused plaintiffs to “blink first” and has led to the successful resolution of difficult cases. And, of course, if we cannot settle, we try the case to win it.
When our clients elect to pursue settlement, we successfully navigate the risks of settlement approval and implementation. We structure our agreements to avoid valid objections, defend our agreements from professional objectors, and provide courts the information they need to enter judgments that withstand appeals and collateral attacks.
As for settlement implementation, we manage the process efficiently. We have good relationships with service providers — notice experts, notice providers and claims administrators — who want our business. We make them bid competitively and we review their proposals to ensure that they are realistic. Settlements can carry a lot of transactional cost. We do everything we possible to ensure that our clients know the full cost of a settlement before they sign any agreement.