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

McReynolds & Damasco – Defense Strategies

Posted in Presentations

This morning, I had the distinct pleasure of presenting alongside Chicago civil rights attorney Linda Friedman on two cases about which I’ve written before: McReynolds v. Merrill Lynch and Damasco v. Clearwire Corp.  As usual, I’m posting the slides here.  Three things I’d like to note, though:

  • Slide 3 contains a picture of my daughter Alex.  She was there to explain why her dad looked disheveled and may have sounded a little incoherent.  
  • Slide 4 has an arguable inaccuracy.  No opinion has engaged in single-issue certification, but on September 25, in Ellis v. Costco Wholesale Corp., Judge Chen of the N.D. Cal. certified a Rule 23(b)(2) class, and pointed out he could have done the same thing under Rule 23(c)(4), citing McReynolds.  I’ve added a note to that effect.  
  • Audience member Sondra Hemeryck offered a great from-the-trenches observation of Damasco’s effects: judges in the Northern District of Illinois have begun to either (1) issue immediate stays of class certification motions, or (2) required stipulations that defendants will not "pick off" named plaintiffs coupled with no-prejudice dismissals of early motions.  It will be interesting to see if those strategic responses influence the Supreme Court at all when it decides Symczyk this term.