Class Action Settlements: Hot Topics in 2016 and Beyond
Class action settlements can be an effective way to manage the uncertainties and inconveniences of aggregate litigation by giving both sides the peace and predictability they desire. But settling class actions requires careful observance of certain procedures and best practices in order to obtain a settlement that will withstand scrutiny from judges and Attorneys General and survive challenges from objectors.
In this two-hour LIVE Webcast, a panel of distinguished professionals and thought leaders brought together by The Knowledge Group will explain the fundamental aspects of class action settlements. They will provide an in-depth discussion of the hot issues in this area and will also offer best practices in effectively and successfully settling class actions.
Key topics include:
- Class Action Settlements: Overview
- Notable Recent Class Action Settlements
- Class Action Settlement Trends
- Significant Issues that May Arise
- Best Practices
Jeanne Finegan, APR, President and Chief Media Officer
HF Media, LLC
Special Issues Raised by Proposed Rule 23 Subcommittee Changes to Notice
Proposed Changes to Rule
Class Notice (U.S. mail, email, internet ads, traditional media, social media, mobile; and, appropriateness of “electronic or other means”)
Over the past 40 years since the Supreme Court opinion in Eisen v Carlisle & Jacqueline, 417 U.S. 156 (1974) interpreted Mullane v Central Hanover Bank & Trust Co., 339 U.S. concerning the reasonability of notice to absent class members, the media environment has undergone extraordinary changes. On-demand media channels are driving the way consumers interact with and use new media; and, U.S. First Class Mail may no longer be the only, best solution for individual notice.
- How can practitioners fashion contemporary notice programs to communicate with absent class members in ways that will continue to be consistent with due process and Rule 23(c)(2)(B).
- Which factors influence the likely efficacy of various notice methods, and it analyzes ways in which the reality of American consumers’ evolving communication preferences should be considered in crafting notice programs in the future.
- What are the implications to the Rule 23 Subcommittee’s proposed changes for best practicable notice by electronic or other means to all members who can be identified through reasonable effort? How will this affect future claims process that maximizes delivery of relief to class members should a primary objective of the notice program.”
- Media’s evolution from probabilistic constructive notice to deterministic media
- Given the current state of media use by American consumers, what is the future role of direct mail notice when compared to other direct outreach channels?
- What tools can practitioners use to evaluate the effectiveness alternative methods for notice? Cautionary tales:
- Pollard, et al. v. Remington Arms Company LLC, et al.,
- Kaufman v. American Express Travel Related Services, Inc. 283 F.R.D. 404 (N.D.ILL, 2012)
- Motor Fuel Temperature Sales Practices
- Mark et al v. Gawker Media LLC et al., case number 1:13-cv-04347, in the U.S.-
Daniel J. Tyukody, Shareholder
Greenberg Traurig, LLP
- Overall Trends in Securities Class Action Settlements and Derivative Litigation
- M&A Litigation Trends—Trulia and the demise of disclosure only settlements—the move to litigate M&A cases outside of Delaware as a result thereof and the results so far, including attempts at approving disclosure only settlements outside of Delaware.
- Trulia as an illustration of heightened judicial scrutiny of settlements generally—(i) how different is the usual “corporate therapeutics” settlement resolving derivative litigation from what was disapproved of in Trulia? (ii) Justice Roberts’ statements in Facebook re cy pres; (iii) The attempts at achieving settlements in Uber, and courts’ focus on the release of claims (PAGA, etc.) that are not at the heart of the initial lawsuit.
Michael P. Daly, Partner
Drinker Biddle & Reath LLP
- Key Terms of the Settlement Agreement
- Class Benefit
- Monetary relief
- Gift cards/coupons
- Injunctive relief
- Claims Process and Residual Funds
- Reversion and Cy Pres
- Backdrop: CJ Roberts’ comments in SCOTUS decision not to grant certiorari in Marek v. Lane, 134 S. Ct. 8 (2013)
- Not included in proposed changes to Rule 23
- Reversion and Cy Pres
- Attorneys’ Fees
- Clear Sailing Provisions
- Class Benefit
- Proposed Changes to Rule 23
- Preliminary Approval
- Class Notice (U.S. mail, email, internet ads, print publications, texting? v. TCPA restrictions)
- Final Approval
- Alternatives to Class Settlements
- Individual settlement;
- Offer of complete relief under Rule 67; mootness strategies after Gomez.
Chadwick A. McTighe, Member
Stites & Harbison, PLLC
- Settlement Classes vs. Litigation Classes: are there any different considerations that can come into play when certifying a class for settlement than for a class certified in the normal course of the litigation (i.e., on an adversarial basis)?
- Considerations relevant to settling with named plaintiffs pre-certification. Can court approval be required? Potential claims of collusion or strike suits? When if ever, should notice to putative class members of the settlement by named plaintiffs be required?
- Recent examples of class action settlements being denied court approval. What went wrong in these cases?
- How to handle objections to the proposed settlement
Kenneth A. Manning, Partner
Phillips Lytle LLP
- Rule 68 pick off settlements with lead class plaintiffs
- Update on Supreme Court case Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663 (Jan. 20, 2016) and lower court cases applying Gomez
- Special settlement considerations in FLSA context, including juxtaposition of opt-in collective action and opt-out class action
- Special settlement considerations in civil rights prisoners cases
- Preserving right to access class members
- Attorneys’ fees in civil rights prisoner cases
- Calculation of damages in settlement of statutory damages class actions
- Enforcing class settlement against successive litigation
- Retention of jurisdiction by supervising court
- Federal removal jurisdiction to enforce federal class settlement
- Can the settlement be used to enjoin state courts? Anti-Injunction Act / All-Writs Act
- Potential collateral attacks on the original class settlement
Who Should Attend:
- Attorneys defending class actions
- Corporate Counsel
- In-house lawyers
- Arbitration Law Attorneys
- Litigation Officers
- Litigation Attorneys
- Senior Counsel
Dan is Co-Chair of the firm's Securities Class Action Practice. He focuses his practice on securities litigation and regulatory enforcement matters. He has nearly 30 years’ experience defending issuers, officers and directors, and underwriters in securities class actions, derivative cases, M&A cases and SEC proceedings. Dan also counsels audit committees and special committees in conducting internal investigations. He is a frequent commentator on securities law topics and has been quoted in The New York Times, The Wall Street Journal, The National Law Journal, The Los Angeles Daily Journal, Securities Law 360, Compliance Weekly as well as other publications.
Dan has been named one of the nation’s top securities litigators by Chambers USA: America’s Leading Lawyers for Business, The Legal 500 U.S., Lawdragon Magazine, Benchmark Litigation and the Los Angeles Daily Journal.
Dan is Co-Chair of the firm's Securities Class Action Practice. He focuses his practice on securities litigation and regulatory enforcement …
Michael's practice focuses on class action litigation, appellate litigation, and customer facing contracts and marketing. He is the senior editor of the firm’s TCPA Blog and is a member of the firm’s Class Action team, TCPA team, and Energy Industry Steering Committee.
Michael defends consumer class actions involving issues such as advertising, labeling, billing, telemarketing, credit reporting and debt collecting. He counsels clients on all aspects of class actions, including removing actions, compelling arbitration, enforcing class action waivers, coordinating multidistrict litigation, enjoining parallel proceedings, striking class action allegations, opposing certification, negotiating settlements, designing notice and claims programs, and defending settlements from objections and attacks. He often writes and speaks about class actions and served as the Chair of the Planning Committee for the American Law Institute’s Forum on Class Actions and Aggregate Litigation.
Michael's practice focuses on class action litigation, appellate litigation, and customer facing contracts and marketing. He is the senior editor …
Chad McTighe is a Member of Stites & Harbison, PLLC based in the Louisville office. He is a member of the Business Litigation Service Group and the Class Action Defense and Appellate Advocacy teams. He represents and advises clients in a wide range of business and commercial litigation matters, including extensive practice in class action litigation, shareholder and membership disputes, and fiduciary duty litigation. He is rated by Kentucky Super Lawyers® and was named a Global Award Winner 2014 by Professional Sector Network for Class Action Adviser of the Year – USA. He is also rated AV Preeminent™ by Martindale-Hubbell® and was named to the Benchmark Litigation Under 40 Hot List for 2016. Outside of Stites, Chad is an active member of the community and is currently Chair of the Board of Directors of the Kentucky Derby Festival Foundation.
Chad McTighe is a Member of Stites & Harbison, PLLC based in the Louisville office. He is a member of …
Mr. Manning is a Partner in the Litigation Practice Group at Phillips Lytle LLP, a law firm with offices located throughout New York State, Washington, D.C and Canada. As the former Litigation Administrator for the Buffalo and New York City offices, he currently leads the firm’s Class Action Team. As a veteran attorney with an engineering background, Mr. Manning has served as the class action attorney or lead counsel in prosecuting or defending a variety of State and Federal Court class action matters. Claims in these class action matters have ranged from products liability, breach of contract and fraud, to personal injuries. He has been recognized for his work in both personal injury and commercial litigation and is listed as a Leading Individual in Chambers USA, America’s Leading Lawyers for Business, and is included in the prestigious directory of The Best Lawyers in America. Mr. Manning currently serves on the New York State Bar Association’s Class Action Committee and is a frequent contributor on class action topics to local and national publications.
Mr. Manning is a Partner in the Litigation Practice Group at Phillips Lytle LLP, a law firm with offices located …
Jeanne Finegan, APR, is President and Chief Media Officer of HF Media, LLC, a division of Heffler Claims Group LLC. She is a distinguished legal notice and communications expert who has lectured, published and been cited extensively on various aspects of legal noticing, product recall and crisis communications. Additionally, she has served the Consumer Product Safety Commission (CPSC) as an expert to determine ways in which the Commission can increase the effectiveness of its product recall campaigns. Further, she has planned and implemented government enforcement notice programs for the Federal Trade Commission (FTC) and the Securities and Exchange Commission (SEC).
She was an early pioneer of plain language, and the first notice expert to integrate social and mobile media into court approved legal notice programs.
Jeanne Finegan, APR, is President and Chief Media Officer of HF Media, LLC, a division of Heffler Claims Group LLC. …
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About Greenberg Traurig, LLP
Greenberg Traurig, LLP is an international, multi-practice law firm with approximately 1900 attorneys serving clients from 38 offices in the United States, Latin America, Europe, Asia, and the Middle East. The firm helps clients bridge diverse legal systems and cultures, with a focus on efficient and effective strategic advice and legal services. The firm is No 1. on the 2015 Law360 Most Charitable Firms list, third largest in the U.S. on the 2015 Law360 400, Top 20 on the 2015 Am Law Global 100, and among the 2015 BTI Brand Elite. More information at: www.gtlaw.com.
About Drinker Biddle & Reath LLP
Drinker Biddle & Reath LLP is a national law firm with more than 600 lawyers in 11 offices that represent clients in a broad spectrum of industries. The firms offer a comprehensive range of traditional practices and significant national practices in class actions, products liability and mass torts, corporate and securities, government relations, healthcare, intellectual property, insurance, investment management, private equity, bankruptcy, real estate, energy, environmental, education and communications.
About Stites & Harbison, PLLC
A full-service law firm representing clients across the United States and internationally, Stites & Harbison, PLLC is known as a preeminent firm managing sophisticated transactions, challenging litigation, and complex regulatory matters on a daily basis. The firm represents a broad spectrum of clients including multinational corporations, financial institutions, pharmaceutical companies, health care organizations, manufacturers, private companies, nonprofit organizations, family-owned businesses and individuals. Tracing its origins to 1832, Stites & Harbison is one of the oldest law practices in the nation and among the largest law firms in the Southeast.
About Phillips Lytle LLP
Phillips Lytle LLP is a premier regional law firm that is recognized nationally for its legal excellence. With offices in New York State, Washington, DC, and Canada, our attorneys serve a multinational client base including FORTUNE 1000 companies, global and regional financial institutions, not-for-profit organizations, middle market companies, startups, entrepreneurs and individuals on important matters affecting their businesses and personal wealth.
About HF Media, LLC
HF Media LLC, Heffler’s in-house media company, is comprised of a nationally recognized team with more than 50 years of combined media and communications experience. HF Media’s team has developed hundreds of court approved legal notice programs and uses the top research, measurement and evaluation currency in the advertising industry; providing industry-accepted and legally defensible methods for demographics, targeting, and overall measurement. Led by Jeanne Finegan, APR, HF Media consults with clients to provide notice strategy and evaluate media options to determine the most impactful and cost-effective means of reaching potential claimants.