Recent Developments and What You Should Know for the Most Effective Early Evaluation, Management, and Resolution of Class Actions

1. 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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2. 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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3. POINT 1
Class Action Trends, Early Evaluation, and
Considerations for Assessing Class Actions
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4. Class Actions are Serious Business
Legal Fees - $2 Billion
½ of all Companies
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5. Class Actions Have High Risk
and High Exposure
Nationwide Classes
Huge Judgments
“Bet The Company” Cases
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6. Class Action Trends
Consumer
Securities Employment
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7. No Trivial Cases
“Minor” regulation
“Unreasonable” customer
“Low” dollar
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8. Early Case Assessment is Vital
Assess Case Early
Determine the Facts
Analyze the Law
Consider whether to Settle or Litigate
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9. Company’s Business Concerns
are Paramount
Financial exposure
Reputational and
Public relations
Governmental
Operational Interruption
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10. Early Case Management Tips
Data holds
Witnesses to be Interviewed
Bifurcation
Detailed Factual and Legal Analysis
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11. Benefits of Early Settlement Evaluation
Settle v. Litigate
Venue matters
Who is bound?
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12. POINT 2
Effective and Strategic Use of Motion Practice
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13. 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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14. 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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15. Early Dispositive Motions
Motion to Dismiss
– Consider jurisdictional grounds
– Consider choice of law issues to limit class or
claims
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16. 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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17. 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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18. POINT 3
Managing and Reducing the Discovery Burden in
Class Actions
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19. 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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20. Process Goals
Managing resources and controlling costs
Limit the scope and sequence of class action
discovery
Stay and/or bifurcate
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21. The Process
Each step in the process should move toward:
Narrowing universe of potentially producible
Increasing knowledge base
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22. 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

23. 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

24. Best Demonstrated Practices (BDPs)
Leverage people and technology
Involve opposing counsel and Court
Harvest the fruit
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25. 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

26. 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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27. Document Production
Form in which ESI produced
Production platform
Cost sharing
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28. POINT 4
The Settlement Process: Recent Developments
and Practical Tips
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29. 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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30. Settlement Negotiations
Individual v. Class Settlement
Pre-Certification v. Post-Certification
Offers of Judgment
Injunctive Relief
Notable Recent Settlements
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31. 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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32. 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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33. 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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34. Other Circuits’ Factor Tests
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35. Tips On Notice Plan
Federal Judicial Center Notice and Claims Process
Safe Harbor Checklist
Judge Posner Trio - Cautionary Tales
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36. Final Approval
Final Fairness Hearing
Opt-out v. Objectors
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