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

Category Archives: Settlement

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Guest Post – The Opt-Out Refund

Posted in Settlement

I don’t usually do guest posts–Class Action Countermeasures is largely a solo proprietorship–but Adam Schulman of the Center for Class Action Fairness spotted a new settlement tactic out in the wild that proved interesting enough to justify an exception. [Inevitable disclosure, since I have done some work for the Center, I have worked with Adam before.]… Continue Reading

Cy Pres & Benefit to the Class – Dremak v. Iovate Health Sci. Group, Inc

Posted in Settlement

A brief one this week, involving a settlement that did not reach final approval. Dremak v. Iovate Health Sci. Group, Inc., No. 09md2087, 2013 U.S. Dist. LEXIS 165225 (S.D. Cal. Nov. 19, 2013) involved an attempted settlement of personal injury class and labeling class actions involving products with hydroxycut [http://en.wikipedia.org/wiki/Hydroxycut]. The proposed settlement involved $10… Continue Reading

Variations in Damages & Settlement Classes – Richardson v. L’Oreal USA, Inc.

Posted in Settlement

 In the wake of Comcast Corp. v. Behrend, a number of different courts have weighed in on the question of whether variations in damages should preclude certification of a litigation class. Last month, however, the District of the District of Columbia issued an opinion which implied that variations in damages might preclude the certification of… Continue Reading

How to Get a Settlement Denied, Part 2 – Better v YRC Worldwide

Posted in Settlement

 Settlement opinions are often not that interesting. The vast majority of them are by-the-numbers approvals of proposed settlements that offer little insight about how Rule 23 works. This is especially true of preliminary approval opinions. But every once in a while, a court refuses even the preliminary approval of a settlement.  When that happens, class… Continue Reading

The Supreme Court Is Coming for Cy Pres

Posted in Settlement

 Not right away, but it’s thrown down the gauntlet. In denying certiorari in Marek v Lane, Chief Justice Roberts took the time to issue an accompanying opinion. Marek v. Lane, No. 13-136, 2013 U.S. LEXIS 7772 (Nov. 4, 2013). In it, the Chief Justice takes the time to rehearse the facts behind the controverisal Facebook… Continue Reading

Confidentiality & Class Action Settlements

Posted in Settlement

 Many class settlement agreements contain confidentiality clauses. How seriously should we take them? Thornton v. Morgan Stanley Smith Barney, LLC, No.12-CV-298-JED-FHM, 2013 U.S. Dist. LEXIS 151211 (N.D. Okla. Oct. 22, 2013), answers the question: seriously indeed. Thornton itself was not a class action. It was a sex discrimination case. In Thornton, the defendant identified a number… Continue Reading

Rodriguez v. National City Bank

Posted in Settlement

A group of Hispanic and African-American borrowers sued the National City Bank, alleging that its "Discretionary Pricing Policy" for home mortgages had resulted in higher borrowing costs for racial minorities. During discovery, the parties engaged in a mediation and reached a $7 million settlement, which a trial court in the Eastern District of Pennsylvania preliminarily… Continue Reading

The Dark Side of Class Action Mediators

Posted in Scholarship, Settlement

Many observers of class actions (including me) have promoted the use of mediators in negotiating class action settlements. Properly used, a mediator can not only help the sides reach agreement, but also document that the process underlying the settlement was fair, reasonable, and adequate. Hamline Law School Professor James Coben has published an article taking a different… Continue Reading