This document describes the methodology used for the case studies on class action lawsuits. The researchers chose a case study approach because it was not feasible to conduct a large-scale statistical study of class actions due to limitations in available data and resources. They selected 10 recent class action lawsuits that had been certified and substantially resolved to study in depth. The cases focused on consumer and mass tort lawsuits. Information was collected through interviews with key participants and reviewing court records. Selection criteria and sources used to identify potential cases are described.
“Deposition Deposition Strategies for Developing Alternative Exposures” was published in DRI, For the Defense, June 2017 edition. Authored by Maron Marvel attorneys: Sarah Beth Jones, Mary Margaret Gay, Anna Beth Baker and Joanna Kuhn.
The Case for Brief Confidential Evaluations In Child Custody Disputespeace talks
The court’s version is the Fast-Track Evaluation which routinely includes oral testimony, but not a written report, by the evaluator. They are well-intended investigative instruments designed to aid bench officers in resolving custody issues.
“Deposition Deposition Strategies for Developing Alternative Exposures” was published in DRI, For the Defense, June 2017 edition. Authored by Maron Marvel attorneys: Sarah Beth Jones, Mary Margaret Gay, Anna Beth Baker and Joanna Kuhn.
The Case for Brief Confidential Evaluations In Child Custody Disputespeace talks
The court’s version is the Fast-Track Evaluation which routinely includes oral testimony, but not a written report, by the evaluator. They are well-intended investigative instruments designed to aid bench officers in resolving custody issues.
Pick at least one study discussed in the chapter per relevant meth.docxkarlhennesey
Pick at least one study discussed in the chapter per relevant methodology (case study, different experiments, survey, observational research, secondary data analysis, event history analysis, archival data analysis, historical ethnography, content analysis) and retrieve the full text. (For convenience, select studies published as journal articles, rather than research monographs).
Summarize the purpose of the study as identified by the author(s) and the methodology chosen for it in a 2 – 3 page essay
Box 2.1 A Case Study: The Revco Medicaid Fraud Case
A clearer idea of the challenges confronting the white collar crime researcher can be acquired by looking at one specific example of such research. Diane Vaughan’s Controlling Unlawful Organizational Behavior (1983) studied the Revco Medicaid fraud case in which a large drugstore chain in Ohio initiated a computer-generated double-billing scheme that cost the government $500,000 in Medicaid funds. Company officials, however, believed they were entitled to these funds because of perceived inequities they attributed to inefficient or unfair reimbursement practices.
Vaughan first developed a file on this case by “snowballing” bits and pieces of information, which led in turn to further leads. But Vaughan, trained as a sociologist, was confronted with an early obstacle posed by the need to master the many specialized languages involved in the case: the computer language of the Welfare Department’s Division of Data Services, that department’s “Medicaid language,” and the financial language of the corporation (Vaughan 1983).
Conversely, Vaughan’s tendency to use sociological language had to be “translated” to become comprehensible to the personnel of these different organizations.
A second challenge involved the Revco Corporation’s concerns about revealing secrets that would be useful to its competitors, as well as affecting employee morale and generating undesirable publicity. Thus, it resisted Vaughan’s requests for access despite the fact that Revco was essentially claiming to be the victim in the case. Means of gaining cooperation from the various investigatory and prosecutorial agencies involved in the case also had to be negotiated; individual bureaucrats were reluctant to assume responsibility for providing access.
This led to a third basic challenge. The involvement of eight large, complex organizations in this single case required Vaughan to face difficult strategic and ethical choices: how to gain the trust and confidence of the various parties involved without revealing confidences, becoming intrusive, or becoming an advocate for any particular party. In analyzing the mass of often-conflicting information collected, researchers must be conscious of and resistant to different possible biases. Despite all these obstacles, Vaughan was able to produce an informative study of one corporation’s encounter with and control of criminal conduct.
The difficulties involved in studying the Revco case ...
Chris Coxon - Evidence informed policy making - 26 June 2017OECD Governance
Presentation by Cris Coxon, Head of Civil and Administrative Justice Research, Ministry of Justice, United Kingdom, at the event on Governing better through evidence-informed policy making, 26-27 June 2017. The event was organised by the OECD Directorate for Public Governance in cooperation with the European Commission’s Joint Research Centre (JRC), the Campbell Collaboration and the International Network for Government Science Advice (INGSA). For further information please see http://www.oecd.org/gov/evidence-informed-policy-making.htm
CASE BRIEF 7.2 Tiffany and Company v. Andrew 2012 W.docxcowinhelen
CASE BRIEF 7.2
Tiffany and Company v. Andrew
2012 WL 5451259 (S.D.N.Y.)
FACTS: Tiffany (plaintiffs) allege that Andrew and others (defendants) sold counterfeit Tiffany
products through several websites hosted in the United States. Andrew accepted payment in U.S.
dollars, used PayPal, Inc. to process customers' credit card transactions, then transferred the sales
proceeds to accounts held by the Bank of China (“BOC”), Industrial and Commercial Bank of
China (“ICBC”), and China Merchants Bank (“CMB”) (“Banks”).
Andrew defaulted on the suit, and Tiffany sought discovery from the Banks by serving subpoenas
seeking the identities of the holders of the accounts into which the proceeds of the counterfeit sales
were transferred and the subsequent disposition of those proceeds. The Banks involved all
maintained branch offices in the Southern District of New York, and the subpoenas were served
on those branch offices.
The Banks responded to the subpoenas by explaining that the information sought was all
maintained in China and that the New York branches of the Banks lacked the ability to access the
requested information. China's internal laws prohibited the disclosure of the information except
under certain conditions. The Banks proposed that the plaintiffs pursue the requested discovery
pursuant to the Hague Convention.
The court concluded that Tiffany should pursue discovery through the Hague Convention. Tiffany
submitted its Hague Convention application to China's Central Authority in November 2010, and
on August 7, 2011, the Ministry of Justice of the People's Republic of China (“MOJ”) responded
by producing some of the documents requested. For each of the Banks, the MOJ produced account
opening documents (including the government identification card of the account holder), written
confirmation of certain transfers into the accounts and a list of transfers out of the accounts. With
respect to CMB, the records indicate that all funds in the account were withdrawn through cash
transactions at either an ATM or through a teller. BOC and CMB each produced documents
concerning a single account; ICBC produced documents for three accounts.
In its cover letter, the MOJ noted that it was not producing all documents requested. Specifically,
the letter stated, “Concerning your request for taking of evidence for the Tiffany case, the Chinese
competent authority holds that some evidence required lacks direct and close connections with the
litigation. As the Chinese government has declared at its accession to the Hague Evidence
Convention that for the request issued for the purpose of the pre-trial discovery of documents only
the request for obtaining discovery of the documents clearly enumerated in the Letters of Request
and of direct and close connection with the subject matter of the litigation will be executed, the
Chinese competent authority has partly executed the requests which it d.
In-house counsel and claims professionals evaluate thousands of cases each year and make decisions concerning which cases to potentially take to trial, which to settle soon after a lawsuit is filed, and which to settle before a lawsuit is even filed. In most cases, counsel and claims professionals prefer to mediate in order to avoid the expensive costs of litigation. This article explores the tactics and tools for a successful mediation.
Brian HughesTheimportanceof evidencecollectionan.docxjasoninnes20
Brian Hughes
The
importance
of evidence
collection
and preser-
vation
can be
overpowered
by other
priorities.
Incident Investigation:
Evidence Preservation
Looking back at your last incident investiga-tion, did you experience anything similiar orwere you faced with any of these dilemmas?
•While attending to the needs of injured and dis-
tressed employees, time-sensitive evidence was
missed.
• While securing the area and bringing it back to
a safe mode, circumstances that could have served
as evidence had to be altered.
•In the bustle to minimize costly downtime,
resuming production rushed the evidence collec-
tion process.
• A piece of critical evidence
disappeared.
•The legal department
wished it had more to demon-
strate due diligence.
•A regulatory body's
requirement or request could
not be fulfilled.
In tlie rush to return to a
state that resembles normalcy,
the importance of evidence
collection and preservation
can be overlooked or over-
powered by other priorities.
Evidence is critical to any incident investigation
because it is the data that support the conclusions
of the investigation. The primary intent of an inci-
dent investigation is to identify effective solutions.
To accomplish this, the investigation needs to
uncover causes and how they relate to one another.
Evidence provides support for what the team con-
cludes to be causes, it cultivates a level of confi-
dence that correlates directly to the quality of the
evidence collected. Evidence is the foimdation for
an investigation—for the investigation team as well
as for others reviewing fuhue investigation results
and conclusions.
Many companies do not have a formal evidence
preservation policy in place, so the process is ad
hoc—left up to the investigator or individuals on
the team. Some highly regulated companies, with
the nature of their governing regulations, specify
requirements for evidence documentation. They
tailor their evidence preservation policy to match
the requirements of the regulatory agency. But evi-
dence documentation is not necessarily the same as
evidence collection or preservation. Regulatory
requirements must be considered. However, a poli-
cy can be developed that fulfills the objectives of
the investigation and the requirements of regulato-
ry agencies.
It is best to decide how to handle evidence
before an emergency occurs. Develop an evidence
preservation policy based on the organization's
needs and distribute it to everyone who will have
the responsibility to carry it out. Include it in train-
ing curriculum so pc\iple are familiar with the
process before they actually need it.
What follows are guidelines that any company
can use to develop a simple evidence preservation
policy to help ensure that evidence is managed
effectively throughout an investigation.
Step 1: Assess the Significance
Ask a few simple questions to dtxument the
actual and potential significance of the problem.
Try not to overreact to a rela-
tively benign problem ...
In instances where negligence or a wrongful act, defective product, or defective drug that causes harm affects numerous people, mass tort litigation offers legal recourse. Often, people confuse mass tort with class action suits. There are similarities, like multiple claimants, and the fact that they mainly involve injuries or adverse bodily effects. However, with mass tort litigation, each claimant files their lawsuit but presents the case under a lead counsel to ease the process, while in a class action, all potential plaintiffs fall under one lawsuit.
Pick at least one study discussed in the chapter per relevant meth.docxkarlhennesey
Pick at least one study discussed in the chapter per relevant methodology (case study, different experiments, survey, observational research, secondary data analysis, event history analysis, archival data analysis, historical ethnography, content analysis) and retrieve the full text. (For convenience, select studies published as journal articles, rather than research monographs).
Summarize the purpose of the study as identified by the author(s) and the methodology chosen for it in a 2 – 3 page essay
Box 2.1 A Case Study: The Revco Medicaid Fraud Case
A clearer idea of the challenges confronting the white collar crime researcher can be acquired by looking at one specific example of such research. Diane Vaughan’s Controlling Unlawful Organizational Behavior (1983) studied the Revco Medicaid fraud case in which a large drugstore chain in Ohio initiated a computer-generated double-billing scheme that cost the government $500,000 in Medicaid funds. Company officials, however, believed they were entitled to these funds because of perceived inequities they attributed to inefficient or unfair reimbursement practices.
Vaughan first developed a file on this case by “snowballing” bits and pieces of information, which led in turn to further leads. But Vaughan, trained as a sociologist, was confronted with an early obstacle posed by the need to master the many specialized languages involved in the case: the computer language of the Welfare Department’s Division of Data Services, that department’s “Medicaid language,” and the financial language of the corporation (Vaughan 1983).
Conversely, Vaughan’s tendency to use sociological language had to be “translated” to become comprehensible to the personnel of these different organizations.
A second challenge involved the Revco Corporation’s concerns about revealing secrets that would be useful to its competitors, as well as affecting employee morale and generating undesirable publicity. Thus, it resisted Vaughan’s requests for access despite the fact that Revco was essentially claiming to be the victim in the case. Means of gaining cooperation from the various investigatory and prosecutorial agencies involved in the case also had to be negotiated; individual bureaucrats were reluctant to assume responsibility for providing access.
This led to a third basic challenge. The involvement of eight large, complex organizations in this single case required Vaughan to face difficult strategic and ethical choices: how to gain the trust and confidence of the various parties involved without revealing confidences, becoming intrusive, or becoming an advocate for any particular party. In analyzing the mass of often-conflicting information collected, researchers must be conscious of and resistant to different possible biases. Despite all these obstacles, Vaughan was able to produce an informative study of one corporation’s encounter with and control of criminal conduct.
The difficulties involved in studying the Revco case ...
Chris Coxon - Evidence informed policy making - 26 June 2017OECD Governance
Presentation by Cris Coxon, Head of Civil and Administrative Justice Research, Ministry of Justice, United Kingdom, at the event on Governing better through evidence-informed policy making, 26-27 June 2017. The event was organised by the OECD Directorate for Public Governance in cooperation with the European Commission’s Joint Research Centre (JRC), the Campbell Collaboration and the International Network for Government Science Advice (INGSA). For further information please see http://www.oecd.org/gov/evidence-informed-policy-making.htm
CASE BRIEF 7.2 Tiffany and Company v. Andrew 2012 W.docxcowinhelen
CASE BRIEF 7.2
Tiffany and Company v. Andrew
2012 WL 5451259 (S.D.N.Y.)
FACTS: Tiffany (plaintiffs) allege that Andrew and others (defendants) sold counterfeit Tiffany
products through several websites hosted in the United States. Andrew accepted payment in U.S.
dollars, used PayPal, Inc. to process customers' credit card transactions, then transferred the sales
proceeds to accounts held by the Bank of China (“BOC”), Industrial and Commercial Bank of
China (“ICBC”), and China Merchants Bank (“CMB”) (“Banks”).
Andrew defaulted on the suit, and Tiffany sought discovery from the Banks by serving subpoenas
seeking the identities of the holders of the accounts into which the proceeds of the counterfeit sales
were transferred and the subsequent disposition of those proceeds. The Banks involved all
maintained branch offices in the Southern District of New York, and the subpoenas were served
on those branch offices.
The Banks responded to the subpoenas by explaining that the information sought was all
maintained in China and that the New York branches of the Banks lacked the ability to access the
requested information. China's internal laws prohibited the disclosure of the information except
under certain conditions. The Banks proposed that the plaintiffs pursue the requested discovery
pursuant to the Hague Convention.
The court concluded that Tiffany should pursue discovery through the Hague Convention. Tiffany
submitted its Hague Convention application to China's Central Authority in November 2010, and
on August 7, 2011, the Ministry of Justice of the People's Republic of China (“MOJ”) responded
by producing some of the documents requested. For each of the Banks, the MOJ produced account
opening documents (including the government identification card of the account holder), written
confirmation of certain transfers into the accounts and a list of transfers out of the accounts. With
respect to CMB, the records indicate that all funds in the account were withdrawn through cash
transactions at either an ATM or through a teller. BOC and CMB each produced documents
concerning a single account; ICBC produced documents for three accounts.
In its cover letter, the MOJ noted that it was not producing all documents requested. Specifically,
the letter stated, “Concerning your request for taking of evidence for the Tiffany case, the Chinese
competent authority holds that some evidence required lacks direct and close connections with the
litigation. As the Chinese government has declared at its accession to the Hague Evidence
Convention that for the request issued for the purpose of the pre-trial discovery of documents only
the request for obtaining discovery of the documents clearly enumerated in the Letters of Request
and of direct and close connection with the subject matter of the litigation will be executed, the
Chinese competent authority has partly executed the requests which it d.
In-house counsel and claims professionals evaluate thousands of cases each year and make decisions concerning which cases to potentially take to trial, which to settle soon after a lawsuit is filed, and which to settle before a lawsuit is even filed. In most cases, counsel and claims professionals prefer to mediate in order to avoid the expensive costs of litigation. This article explores the tactics and tools for a successful mediation.
Brian HughesTheimportanceof evidencecollectionan.docxjasoninnes20
Brian Hughes
The
importance
of evidence
collection
and preser-
vation
can be
overpowered
by other
priorities.
Incident Investigation:
Evidence Preservation
Looking back at your last incident investiga-tion, did you experience anything similiar orwere you faced with any of these dilemmas?
•While attending to the needs of injured and dis-
tressed employees, time-sensitive evidence was
missed.
• While securing the area and bringing it back to
a safe mode, circumstances that could have served
as evidence had to be altered.
•In the bustle to minimize costly downtime,
resuming production rushed the evidence collec-
tion process.
• A piece of critical evidence
disappeared.
•The legal department
wished it had more to demon-
strate due diligence.
•A regulatory body's
requirement or request could
not be fulfilled.
In tlie rush to return to a
state that resembles normalcy,
the importance of evidence
collection and preservation
can be overlooked or over-
powered by other priorities.
Evidence is critical to any incident investigation
because it is the data that support the conclusions
of the investigation. The primary intent of an inci-
dent investigation is to identify effective solutions.
To accomplish this, the investigation needs to
uncover causes and how they relate to one another.
Evidence provides support for what the team con-
cludes to be causes, it cultivates a level of confi-
dence that correlates directly to the quality of the
evidence collected. Evidence is the foimdation for
an investigation—for the investigation team as well
as for others reviewing fuhue investigation results
and conclusions.
Many companies do not have a formal evidence
preservation policy in place, so the process is ad
hoc—left up to the investigator or individuals on
the team. Some highly regulated companies, with
the nature of their governing regulations, specify
requirements for evidence documentation. They
tailor their evidence preservation policy to match
the requirements of the regulatory agency. But evi-
dence documentation is not necessarily the same as
evidence collection or preservation. Regulatory
requirements must be considered. However, a poli-
cy can be developed that fulfills the objectives of
the investigation and the requirements of regulato-
ry agencies.
It is best to decide how to handle evidence
before an emergency occurs. Develop an evidence
preservation policy based on the organization's
needs and distribute it to everyone who will have
the responsibility to carry it out. Include it in train-
ing curriculum so pc\iple are familiar with the
process before they actually need it.
What follows are guidelines that any company
can use to develop a simple evidence preservation
policy to help ensure that evidence is managed
effectively throughout an investigation.
Step 1: Assess the Significance
Ask a few simple questions to dtxument the
actual and potential significance of the problem.
Try not to overreact to a rela-
tively benign problem ...
In instances where negligence or a wrongful act, defective product, or defective drug that causes harm affects numerous people, mass tort litigation offers legal recourse. Often, people confuse mass tort with class action suits. There are similarities, like multiple claimants, and the fact that they mainly involve injuries or adverse bodily effects. However, with mass tort litigation, each claimant files their lawsuit but presents the case under a lead counsel to ease the process, while in a class action, all potential plaintiffs fall under one lawsuit.
1. Appendix D
CASE STUDY METHODOLOGY
Ideally, to evaluate the empirical support for assertions about the benefits and
costs of Rule 23(b)(3) class actions, we would select a statistically representative
sample of class action lawsuits and measure key characteristics and outcomes
of those lawsuits. To select such a sample we first would have to construct a
complete list of class action lawsuits, either for the nation or for selected juris-
dictions. At the present time, developing such a list would be very difficult.
Prior to 1995, reports of class action filings in the federal courts contained many
inaccuracies; since then, the Administrative Office of the U.S. Courts believes
that its effort to improve district reporting of class action status has improved
the reliability of its database. However, the change has been so recent that
many of those cases would still be pending and we would not be able to mea-
sure outcomes. Moreover, many class action lawsuits are filed in state courts
that do not identify class action lawsuits in their reports of civil case filings. The
only way to identify class actions in state courts would be to systematically
review individual case files, a gargantuan task to undertake in multiple jurisdic-
tions. If we could construct a sampling list, we then would need to collect in-
formation about each case we chose during our sampling. Because much in-
formation about class action litigation processes and outcomes is not contained
in court records, we would need both to collect court record data and to survey
key participants in each lawsuit to obtain data for analysis. To draw statistical
inferences using this approach, we would need to sample a large number of
cases and survey the participants in them.
We did not have the resources available to adopt such a large-scale approach,
nor were we confident that we could surmount the considerable sampling and
data collection problems it would entail. Moreover, many of the data we were
interested in pertained to litigation processes; survey research techniques are
not as well suited to studying processes as they are to measuring characteristics
of individuals and organizations. Instead, we adopted a case study approach.
Case study research calls for selecting a few examples of the phenomenon to be
studied and then intensively investigating the characteristics of those examples
527
2. 528 Class Action Dilemmas
(“cases”). By closely examining a relatively small number of cases, and compar-
ing and contrasting them, the researcher learns about significant features of the
phenomenon and how it varies under different circumstances. Case study re-
search is particularly well suited to investigating processes.1
After deciding to adopt a case study approach and considering the data collec-
tion that would be required, we determined that we had sufficient resources to
study ten class action lawsuits.
WHAT TYPES OF CASES DID WE CHOOSE FOR OUR CASE STUDIES?
Because we could not hope to reflect the full diversity of class actions with ten
cases, we decided that we would focus on two case types that have been the tar-
get of most of the criticism leveled at class actions in recent years: consumer
class actions involving small individual losses and mass tort class actions in-
volving personal injury and property damage. 2 Within the two categories we
selected, we wanted to study a mix of complaints. In the consumer category, we
sought examples of complaints about fees, deceptive advertising, and other
unfair trade practices. In the mass tort category we initially wanted to select
personal injury cases only, but when we found few personal injury mass torts
that met all our selection criteria, we broadened our search to include property
damage mass torts as well. We eliminated mass disaster cases, such as building
and bridge collapses and hotel fires, from consideration because both defen-
dant representatives and plaintiff attorneys whom we interviewed in the earlier
phase of our research reported little controversy over the appropriateness of
using a class approach in such situations.
HOW DID WE CHOOSE OUR CASE STUDIES?
The overarching point to note about our case selection process is that the pro-
cess was not random but it was as impartial as we could make it. Because we
wanted to focus our attention on ordinary or typical damage class action law-
suits, we excluded cases that had attracted widespread controversy (such as the
asbestos futures class actions) from consideration. As a result, we did not know
what had occurred in most of our cases—the meat of the stories and their out-
comes, whether they could be held up as good or bad examples of class action
practices—at the time we selected them. (The Texas insurance premium
double rounding consumer class action and the blood products mass tort case
had each attracted attention from legal academics and the legal press. How-
ever, we were not familiar with the facts of these cases when we selected them
for study.)
3. Case Study Methodology 529
We established four prerequisites for inclusion as a case study:
• The case was certified by the court as a class action; this would include
cases certified for settlement only.
• The case had been filed within the several years prior to our study.
• The case had been substantially closed, which we defined as one that the
major parties would agree is complete, even if some minor issue is still
open.
• The case was central to a litigation, rather than ancillary.
We required that the cases selected be certified because we wanted to focus on
the outcomes of class actions. An important question for further study is what
happens to potential class members and defendants when plaintiff class action
attorneys are unable to secure class certification.
We required that the cases selected had been filed within a few years prior to
our study because many of the practitioners we interviewed in the earlier phase
of the study believed that class action practice has changed significantly in re-
cent years. We wanted our study to reflect current, rather than earlier, practice.
We required that the cases selected be resolved, because we wanted to know the
outcomes of class actions; also, we knew the key participants would be reluc-
tant to share information about ongoing litigation.
Because much about the dynamics of the litigation can only be conveyed by in-
siders, and because much of the information we sought is not part of the public
record, we needed the cooperation of the key participants. Unlike our general
interviews with class action practitioners, we were not able to guarantee confi-
dentiality to the parties because these cases would be identifiable. Lack of con-
fidentiality ended up being more of a stumbling block in defendants’ willing-
ness to share cost data with us than to their (or other parties’) willingness to talk
with us at all, although we encountered some parties who did not want to par-
ticipate in the study. Although we began the study by requiring cooperation
from at least some participants on all sides of the litigation, we later relaxed this
criterion when some individuals who had earlier agreed to cooperate with the
interviewing process withdrew.
For those types of cases in which distribution is accomplished relatively quickly
(e.g., a typical consumer dispute), we preferred cases in which all settlement
monies had been distributed so that we could construct complete accounts of
case outcomes and costs. But for those types of cases in which distribution typ-
ically occurs over many years (e.g., when class members can come forward over
4. 530 Class Action Dilemmas
a lengthy period to claim compensation), we preferred cases that had been filed
and resolved relatively recently—but where the settlement funds had not yet
been fully distributed—to older litigation in which all funds had been dis-
tributed. Finally, we wanted a mix of cases that included both federal and state
court cases, nationwide and more limited classes, and a variety of plaintiffs’ law
firms and defendants.
SOURCES OF INFORMATION
Our sources for case selection included the database that we had constructed of
class actions identified by LEXIS and national or business press reports in 1995
and 1996 (see Appendix B). We also consulted the docket of the judicial panel
on multidistrict litigation, which indicates litigation in which there has been
some class action–related activity. We constructed a master list of all the cases
mentioned in the several dozen interviews we had conducted in the earlier
phase. (Because we promised confidentiality to respondents in that phase, our
list did not contain any attribution to the respondents or their firms or corpora-
tions; nor did we include any case information that they asked us to keep confi-
dential.) And we asked two insurance companies that had been involved in a
number of small damage consumer cases to assist us by assembling a list of all
the recent completed class actions in which they had been involved as defen-
dants so that we could choose one at random.
Our criteria ended up being surprisingly restrictive. Many putative class actions
in our databases were either never certified as such or were not resolved as class
actions; many cases mentioned in our interviews were either not recent, not
completed, or were “notorious” cases. Trying to get the cooperation of parties
we did not know was time-consuming and led us to reject otherwise promising
candidates for study. Ultimately, we identified many of the lawsuits we studied
by iteratively choosing cases from the sources mentioned above, searching the
LEXIS–NEXIS database and perhaps calling identified individuals to determine
whether that case met our criteria (finding out that it often did not) and then
searching among similar case types, such as toxic exposure or collateral protec-
tion insurance, for a case that did meet our criteria.
DATA COLLECTION: WHAT SOURCES DID WE USE
AND WHAT TYPE OF INFORMATION DID WE SEEK?
For each case, we did a background search on LEXIS–NEXIS for any mention
about it in the legal press (including published court opinions), the business
press, and the general press. We attempted to interview all key participants in
the litigation, including class counsel, in-house and outside counsel for lead
5. Case Study Methodology 531
defendants, objectors, judges and special masters, and when relevant, regula-
tors. We did not attempt to contact representative plaintiffs. Where the parties
representing a particular side were numerous, such as in the polybutylene pipes
case, we selected respondents to maximize the probability that we would obtain
diverse views on the litigation. In all, we interviewed about 80 individuals.3 Fi-
nally, we gathered public court documents relating to the litigation dynamics of
each case. In the text, at the beginning of each case study’s endnotes, we list
the sources we drew upon.
To guide our data collection, we developed a protocol that we used for both
record searches and interviews with participants. Although we needed to un-
derstand the main legal issues involved in each suit, our primary focus was on
issues pertaining to the class framework. The main categories for which we
collected data included:
• initiation of the litigation
• roles of regulators and other interested parties such as consumer orga-
nizations
• class definition (including class size)
• class representatives
• class certification
• competing or ancillary actions
• notice
• settlement negotiations
• settlement agreement
• opt-outs
• fairness hearings
• objectors and intervenors
• fees and expenses
• other costs
• final judgments
• execution of settlement provisions
• final outcomes, including intangible benefits and costs such as changes in
practice
• practitioners’ perceptions of the process.
6. 532 Class Action Dilemmas
ANALYSIS
We assigned two researchers to each case, one of whom drafted an initial case
study report. The project leader reviewed all of the drafts and prepared lists of
queries seeking clarification and additional information for each case study.
Answering these queries usually required further discussion and correspon-
dence with participants in the litigation. After several iterations, the prelimi-
nary drafts were then circulated to the key participants for review and com-
ment. The review and comment stage generated further telephone interviews
and record data collection.
In presenting the case studies, the research teams attempted to tell the story of
the litigation rather than to assess the practices of the participants or the litiga-
tion outcomes. Our goal was to allow readers to draw their own conclusions.
Preparation of Chapter Fifteen, which compares and contrasts the ten cases
and discusses their implications, led to further queries, discussions with partic-
ipants in the litigation, and some final refinements of the case study chapters.
Unlike the case studies themselves, Chapter Fifteen is interpretive. The tables
accompanying Chapter Fifteen connect the analysis with the facts presented in
the case studies, rather than offering new facts. This process of sifting, sorting,
and interpreting qualitative information, involving multiple iterations and in-
teractions with case participants, is characteristic of case study research.
NOTES
1See Robert Yin, Case Study Research: Design and Methods, 2nd ed. (Thousand Oaks, Calif.: Sage
Publications, 1994).
2 We excluded securities fraud cases, which have also been a subject of controversy, from
consideration because we could not identify any class action lawsuits that had been completed
since the passage of the Private Securities Reform Act of 1995, and we felt that cases completed
prior to this legislation would no longer be useful examples to study.
3 These included a few people whom we had already interviewed in the previous phase of data
collection, but who were selected in this phase because they played a key role in one or more of the
cases we selected for analysis.