Last week, I had the privilege of attending the FJC’s 2016 Complex Litigation Conference, held in conjunction with Emory Law School’s Institute for Complex Litigation and Mass Claims. [Disclosure: I serve on the Institute’s Next Generation Board.] The conference covered issues in both class action and MDL cases, and was taught by luminaries on both sides of the complex litigation bar, and the audience largely comprised federal judges from various districts around the country.
Given the candor shown by both sides, as well as the judges’ willingness to ask questions and discuss their experiences, I’m going to treat the conference as if it operated under the Chatham House Rule, meaning I’ll tell you what got said, but not identify who said it.
So, without further ado, here are the top five takeaways from the Emory/FJC conference:
- Judges are very concerned with getting the issues right. It’s an intuition most of us have, at least until a given judge rules against us. But watching jurists of varying ideological stripes ask questions at this conference hammered home just how concerned most judges are with doing their jobs conscientiously and well. And that just reinforced to me the importance of not being afraid to make good faith arguments, even if they seem risky. Yes, judges are concerned with their dockets, and with dozens of other small concerns, just like the rest of us. But they also clearly want to make the right rulings in cases.
- Third-party funding is still a large unknown, and therefore a large concern. Third-party litigation funding is becoming more prevalent in complex litigation. It’s particularly rife in MDLs, but it touches class actions as well. Since third-party funders are often not disclosed, judges are not necessarily aware of their existence. As a result, a number of judges were very concerned to hear that hedge funds and other investors may view class actions and MDL cases as an opportunity for investment. (It doesn’t hurt that many of the plaintiffs’ firms represented at this conference self-fund, and so view funders as unnecessary competition.) It may be time to dust off funding-related interrogatories and adequacy arguments.
- Put charts in your Motion to Dismiss a complex claim. Judges, like practitioners, think that 50-state motions to dismiss are tedious. That doesn’t make them any less necessary, however, either to framing the case or to narrowing claims to those with actual legal merit. So it shouldn’t surprise anyone that concise, accurate charts of various state laws got an enthusiastic shout-out from several federal judges. So, brief the law, but add a chart for easy reference.
- Don’t forget about Daubert motions. This is unlikely to catch anyone reading this blog unawares, but several judges pointed out that they treat Daubert rulings in class actions and MDL cases as an inflection point: once they’ve ruled, they will ask the parties about settlement, in the hopes that one side or the other will revise their understanding of their chances based on how the expert motions have shaken out.
- Watch out for hybrid settlements. Several practitioners pointed out a potential issue for class settlements that combine monetary and injunctive relief. It’s a trend that’s gained currency as parties look for ways to provide relief to class members without necessarily committing huge cash amounts. However, as one plaintiffs’ counsel pointed out, given Wal-Mart Stores v. Dukes‘s ruling that one can’t seek monetary relief under Rule 23(b)(2), there’s a question as to which provision of Rule 23 can justify certifying a settlement class that uses both. Dukes may close off Rule 23(b)(2), and it’s unclear whether one can seek an injunction with a Rule 23(b)(3) class. This isn’t an insurmountable issue, but watch for it to recur in the next few years.