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Class Action Countermeasures Discussions of the Strategic Considerations Involved In Class Action Defense

More About Plaintiffs’ Lawyers – Inside a Class Action

Posted in Lawyers

A little while ago, I reviewed Circle of Greed, the story of William Lerach’s rise and fall in the world of the class-action plaintiffs’ bar. The posts on the subject drew some criticism from some plaintiffs’ lawyers, but I still think it was worth it to see how at least one plaintiffs’ counsel treated his class actions.

But Circle of Greed is not the only book to have been published taking an “inside the plaintiffs” view of class-action practice. Another, Inside a Class Action: The Holocaust and the Swiss Banks, by Jane Schapiro, looks at the litigation that then then-Cohen Milstein lawyer Michael Hausfeld filed (pro bono) against various Swiss banks for alleged mismanagement of funds during World War II. While the litigation did not progress very far before it was settled, Schapiro’s account of Hausfeld’s behind-the-scenes maneuvering provides a number of insights for defense counsel:

  • Being first to file can bring disproportionate leverage for some plaintiffs. Plaintiffs’ attorney Ed Fagan filed before Hausfeld, in the same district he was intending to. Throughout the litigation, Fagan and Hausfeld clashed repeatedly over tactical decisions (such as whether to include compelling but difficult-to-prove slave labor claims).
  • Government action can cause headaches for plaintiffs as well as defendants. While Schapiro does describe some coordination between the plaintiffs’ consortium and New York Senator Alfonse D’Amato, she also takes pains to describe how the consortium would hold its breath over various State Department actions, hoping that State would not interfere (inadvertently or otherwise) with the prosecution of the lawsuit. (The lawyers wound up having the same problems with some non-governmental organizations that became involved in the case.)
  • The more lawyers involved, the harder it is to coordinate litigation. Schapiro reports that throughout the litigation Hausfeld, Fagan, and other attorneys would worry every time a new attorney was added to the Executive Committee. The lawyers attracted to this high-profile litigation tended to have large egos and conflicting agendas, and coordinating among them grew exponentially with each new addition.
  • Settlement is still the endgame for plaintiffs. Given the size of this litigation, Schapiro reports that the plaintiffs seriously talked settlement at various preliminary stages, including during jurisdictional motions. Hausfeld was convinced for a long time that the mere threat of discovery would be enough induce the banks to negotiate.

Schapiro’s book isn’t perfect. For one thing, she seems unsure whether she’s writing about Holocaust victims or the workings of a class-action lawsuit, an ambiguity that tends to undercut the objectivity of her reporting as well as the power of her advocacy. But lawyers looking for an account of how driven lawyers interact in a single piece of high-profile litigation can find a lot of resources here.