Publications & Presentations
October 4, 2018

This webinar was previously recorded on October 4, 2018. To view this webinar click here.  

Class Action Challenges and Considerations: Building Your Best Defense

October 4, 2018 | 12:00 - 1:15 PM CST 

In-house counsel has many complicated legal and business issues to handle, and a class action lawsuit can raise the stakes even higher. In this webinar, our class action attorneys will use a case study to provide an analysis and options for the critical considerations and decision points of a class action defense


Initial Pleadings 

Removal: Friend or Foe?
• Considerations and strategies of using the Class Action Fairness Act in Federal Courts
• Discussion of Pros/Cons of Federal Court

Jurisdictional Challenges
• Discussion of how the Bristol-Myers Squibb case is being treated by district courts
• Arguments that plaintiff’s attorneys are developing to avoid Bristol-Myers

Coverage Issues
• Discussion of hot topics in insurance coverage issues affecting class action defense costs


The Pros and Cons of Bifurcation
• Definition and difference between class certification and merits discovery
• Pros: Reducing costs, a tool to resolve meritless cases more expeditiously, limiting the amount of discovery a defendant must initially disclose
• Cons: Overlap between class certification and merits discovery, how to determine what discovery is permitted after class certification, conflict with an extensive merits-based analysis of class  certification

Proportionality: Sword or Shield?

•How to raise the proportionality objection, its basis, and recent interpretations

•Practical implications: Examples of proportionality objections that have been sustained/have been overruled

The Advantages of E-Discovery
• Is there a choice? Recent developments in E-Discovery
• The importance of early negotiations
• Best practices and potential pitfalls

Class Certification 
• Recent developments in the case law on the certification of damages classes under Rule 23(b)(3)
• Novel discovery strategies for defeating class certification: Examples of engaging in merits discovery before class discovery


Offers of Judgment
• Effect of unaccepted offers of judgment on class actions in light of Ewald v. Gomez, 136 S. Ct. 663 (2016)
• Effect of making offers of judgment and depositing funds with the court in class actions after Fulton Dental, LLC v. Bisco, Inc., 860 F.3d 541 (7th Cir. 2017); Bennett v. Office of Fed. Empls. Grp.  Life Ins., 683 F. App’x 186, 188 (4th Cir. 2017)
• Remaining benefits of Rule 68 offers of judgment – fee shifting and cutting off a plaintiff’s right to attorneys’ fees

Approval by the Court 

Seeking preliminary approval
• No longer “rubber stamped” approvals – judicial oversight to safeguard against inadequate or conflicted representation by class counsel
• Conflicts between class counsel and class members?
• Courts must determine if the proposed settlement is in the best interest of the class

Whether the settlement is “fair, reasonable and adequate”
• Unique factor tests developed by Circuit Courts of Appeals
• Cautionary examples where Courts have denied preliminary approval
• Notice, Objectors, and Final Approval


Jennifer J. AxelShareholder 

Caitlin J. Morgan, Associate

Mit S. Winter, Shareholder

Rodney L. Lewis, Shareholder