A few weeks ago, the Duke Law Center for Judicial Studies held a conference on class action settlements in San Diego, to discuss best practices in the wake of the likely Rule 23 amendments. Like all of its conferences, this one was held under the Chatham House Rule, which dictate that you can repeat the substance of anything said but not the identity of the speakers.  The candor these rules foster is extraordinary, and lead to valuable discussions.  So, with that in mind, here are the five most important things attendees took away from the conference.

  1. Plaintiff-oriented amendments
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I’ve been busy this week with a number of things, but a few of them, including the upcoming amendments to Rule 23 and prepping for a Strafford webinar on Thursday, have me thinking about the proper role of objectors again.

I think I’ve mentioned before that a number of class action lawyers (especially on plaintiffs’ side) really don’t like those who come in and try to improve settlements.  Some of this is simple financial self-interest: barring a quick-pay provision, class counsel doesn’t get paid until the settlement is finalized.  But some of this is also actual distaste.  In … Continue Reading

In August, while we were all on vacation, beating the heat, or recovering from a busy first half of 2016, the Advisory Committee published the new proposed Rule 23 for public comment.
The proposed changes here fall into several categories:
Notice.  Rule 23’s notice provision gets amended to allow for technological change.
Preliminary approval.  Preliminary approval is dead.  Long live preliminary approval!  In other words, the Committee has taken a stand (in its Comment) that the moniker “preliminary approval” is misleading.  But it has explicitly enshrined a reference to the initial hearing where the court determines whether … Continue Reading

Year-end lists are funny things.  They take a sort-of arbitrary starting and stopping point, and then they cram a bunch of prejudices into a (usually) arbitrary number of items.  And then people take them kind of seriously.  But they can be handy ways of catching trends one did not see before.  And in a year that has seen the beginning of a new debate over the shape of Rule 23, looking at the trends in caselaw can be important.  This year’s cases include some pro-plaintiff and some pro-defendant, and some hard to quantify.  But most of them are notable … Continue Reading

ExxonMobil recently attempted to settle a class action involving the payment of gas royalties. As part of that settlement, it agreed to a provision that would impose a severe appeal bond on any objectors who might wish to appeal an unsuccessful objection. The clause read:

Because any appeal by an objecting Class Member would delay the payment under the Settlement, each Class Member that appeals agrees to put up a cash bond to be set by the district court sufficient to reimburse Class Counsel’s appellate fees, Class Counsel’s expenses, and the lost interest to the Class caused by the delay

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Just about anyone who owns a printer has strong opinions on toner cartridges. An enterprising group of plaintiffs’ lawyers sought to capitalize on consumer annoyance with printer cartridges by filing three class actions in the Northern District of California against toner manufacturer Hewlett Packard.

Their cases didn’t go so well. Some of the complaints were dismissed on the pleadings. They lost a bid at class certification. And trial court called their evidence of causation and injury "weak." These setbacks must have been particularly difficult because these plaintiffs’ counsel had spent a great deal of time and money imposing discovery … Continue Reading

 Going through bankruptcy is traumatic enough; doing so and still having your credit report still list your discharged debts as "delinquent" is enough to drive some people to litigation. And that’s how several credit agencies found themselves on the receiving end of a series of Fair Credit Reporting Act class actions.

In this case, the defendants settled, offering the plaintiffs injunctive relief and some pro-rated monetary relief, as well as paying attorneys fees and some incentive awards for the named plaintiffs.

The settlement drew objections, however. The trial court approved the settlement nonetheless, but on appeal, in Radcliffe v. Experian Continue Reading

My apologies for missing last Thursday’s post: life with a newborn occasionally catches up with one. Nonetheless, finishing out our July Class Action Summer Camp, today we’ll focus on Rule 23(e) and class-action settlements. The vast majority of class actions settle, but because class-action settlements implicate so many different interests (the lawyers, the defendant, the absent class members, the court), they require an additional level of approval from the court. In addition, a number of different settlement structures have evolved that class-action lawyers must learn to pay attention to.

Ten Cases to Educate You

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Mass torts have long been a problem for the American judicial system. Today, it’s Vioxx, the BP oil spill, and Chinese drywall. Fifteen years ago, it was asbestos, Agent Orange, and silicone gel breast implants. Back in the 1980s and 1990s, when mass torts first threatened to overwhelm crowded dockets in various jurisdictions, the courts carefully considered whether to use class actions as a means of resolving thousands of similar tort claims.

And, at that time, Columbia University law professor (and recent Daily Show guest) John Coffee wrote an in-depth examination of the … Continue Reading

[Note: Many thanks to the folks at the WLF Legal Pulse for asking me to write this entry. It’s cross-posted there.]

Given the stakes of class actions, which transform small-dollar claims into bet-the-company litigation, settlements are hardly unusual. And given the minuscule recoveries most class members receive compared to their lawyers’ multi-million paydays, neither are objections to those settlements. What is unusual is for a court to reject a settlement because of these objections. And what’s even more unusual is for the court to put a small doctrinal booby trap into its rejection. But last week, the Second Circuit … Continue Reading