Class Action Settlements

A Class Settlement Checklist

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Having heard good things about it for years, last month I finally got around to reading Dr. Atul Gawande’s book, The Checklist Manifesto, and have begun to give some thought regarding its application to class action practice. Proposed class action settlements are currently occupying much of my time, and my usual practice when drafting the settlement agreements is to draw upon lengthy agreements I have negotiated before.  However, after reading Dr. Gawande’s opus, it occurred to me that a short, simple checklist would likely be a helpful tool in considering the most commonly recurring terms of class action settlements. With the book as inspiration, I offer the following as a first, high-level attempt at a simple class settlement checklist, one which can be expanded, refined, and otherwise improved upon. Each item on the checklist is followed by a little clarification of what it entails. Taken together, the items represent the basic provisions of many class action settlements, but each case is different, and settlements of

Questions Regarding Cy Pres Settlements Remain after Frank v. Gaos

Today, in a case that was being watched closely for its potential ramifications for class settlements, the Supreme Court opted not to address the merits of the cy pres issues that were presented to it.  Frank v. Gaos involved a settlement that would have distributed millions of dollars to cy pres recipients and class counsel, but no money to class members.  Objectors complained that the settlement did not comply with the requirement that class settlements be “fair, reasonable and adequate,” and the Supreme Court granted certiorari to resolve that issue.  It ultimately did not.

Instead, the Supreme Court, in a per curiam decision, vacated and remanded for the lower courts to address whether the named plaintiff had Article III standing in light of Spokeo, Inc. v. Robins.  After the district court rejected the argument the plaintiff lacked injury and thus standing to pursue its claim that Google violated federal law by

Amendments to Rule 23 Now in Full Swing

On December 1, 2018, the amendments to Fed. R. Civ. P. 23 took effect, principally altering portions of the Rule governing class action notice, settlement, and appeals. Although the amendments were approved earlier in 2018 by the United States Supreme Court, they had been in the works for some time.

In 2014, a subcommittee of the Advisory Committee on Civil Rules met with class action attorneys from both the plaintiffs’ and defense bar all across the country in a series of meetings, seeking input on amendments to Rule 23. One such meeting was held in October 2014 during the ABA’s National Institute on Class Actions, a two-day conference well-attended by counsel in private practice, in-house counsel, academics, and reporters from class action news services. Those of us in attendance had the opportunity to offer the subcommittee suggestions on how to amend the Rule to better address problems we encounter in practice, such as cy pres awards, professional objectors, and issue classes. Fast-forward four years later, and

Proposed Changes to Rule 23: Electronic Notice and Efforts to Curb Abuses in Settlement Objection Process

On this blog, we previously wrote about the Fairness in Class Action Litigation Act of 2017, and identified its potential to bring significant changes to class action practice. That Act was passed by the House on March 9, 2017, based on a 220-201 vote, split almost entirely along party lines, and has now advanced to the Senate for additional consideration.  Whether the Act will become law remains uncertain, and we will continue to monitor future developments. In the meantime, however, it is worthwhile to take note of the proposed changes to Rule 23 itself which are also currently under consideration.

In August 2016, the U.S. Judicial Conference’s Committee on Rules of Practice and Procedure published its proposed amendments to Rule 23. The amendments include a variety of changes concerning class settlement and notice.  This post will focus on two specific areas covered by the amendments: electronic notice to class members, and class settlement objectors. The proposals, if approved, could become effective

Bezdek v. Vibram: The First Circuit Upholds a Class Settlement

On December 31st, the First Circuit approved a class action settlement in a case involving claims of deceptive advertising.  While breaking no new ground, the court’s decision provides useful guidance to parties negotiating a class settlement.

Class Action Settlements:The Long and Winding Road

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As a speaker at ACI’s Drug and Medical Device Conference in New York last week, I chose the topic of class action settlements.  My paper for the topic expands on a blog post last year concerning practical questions every in-house lawyer should ask before agreeing to a class action settlement.  The expanded paper includes those questions, but also prefaces them with a more detailed explanation of the steps in the class settlement process and why the process typically takes many months or even longer.  Whether you are an in-house lawyer advising your business leaders whether to enter into a class action settlement, or outside defense counsel advising your client, I hope you will find the paper helpful.  It is linked here.