John B. Isbister, founder and chair of the ABA’s annual National Institute on Class Actions, graciously agreed to offer his insights into this year’s programs, the history of the event, and trends in class action litigation generally. This year’s two programs are being offered in San Fransisco on October 30, 2009 and Washington, D.C. on November 20, 2009. My Q & A with John follows. Be sure to check out the links for sample audio clips from last year’s program.
What excites you most about this year’s Institute?
There are a lot of changes in class action practice right now. Hot issues include many of the issues that we are examining at the National Institute. For example, the litigation about arbitration clauses with class action waivers and the changing law on class certification standards (the shift from “some showing” to preponderance of the evidence) will both be examined at the National Institute. All of these changes are court driven; as opposed to many of the changes in the past that were a function of changes to Rule 23 and CAFA. Court driven changes are things that can be affected by lawyers, so there is the opportunity for good lawyers to have a real impact on how Courts deal with these issues. We are very fortunate to have as speakers some of the best lawyers in the country who are dealing with these issues. My hope is that the National Institute will make all of the people who attend better able to serve their clients and better handle these cutting edge issues.
Why the decision to split the Institute into two separate programs this year?
This is “customer driven.” We wanted to do a program in California–an area that has a lot of class litigation. However, we recognized that in today’s economy a California program probably would not attract many lawyers from the East Coast. So we decided to do both an East Coast and a West Coast program to satisfy both markets.
Which one should I attend, the one in D.C. or the one in San Francisco?
Both cover substantially the same material and both have a great faculty. The difference is that the San Francisco National Institute has a program on California class actions. If an attorney does a lot of California class actions, the San Francisco program will have a special attraction. For those who want a taste of what the Institute is like, we’ve recently posted audio from the rigorous analysis standard and consumer fraud class actions in federal court sessions at last year’s conference.
What do you see as the emerging trends in class action law?
An increase in the difficulty in getting a class certified–primarily driven by the shift from “some showing” standard to the preponderance of the evidence burden of proof standard. I think this moves the discovery and litigation of a number of issues to the front of a case that at earlier times would have only been contested at trial. This sets the stage for a battle of experts at the class certification stage, which is also something we’re covering online this month. It also enables defendants, who traditionally are reluctant to go to trial in a class action to litigate these issues at a preliminary stage.
How about trends in class action filings?
While I think it is harder to get a class certified, I do not think this has slowed filings of class cases. Class action plaintiffs’ lawyers continue to be creative in using this procedural device to look for ways to economically litigate large numbers of claims that probably could not be litigated on their own. The sub-prime/financial crisis sparked a record number of new class action filings.
This is the 13th year for the Institute. Why do you think this program has been so successful for so long?
We have consistently identified and addressed current issues in the area of class litigation. We have also consistently attracted the best lawyers, academics and Judges to be on our facility. This year we are again privileged to have Professor John C. Coffee open the program. Professor Coffee is one of the most quoted sources in the news on topics related to securities litigation, the financial crisis and class actions in those areas. His presentation is an overview on developments in class litigation always gets rave reviews and sets the stage for the rest of the day. This year Professor Arthur Miller–the guy who wrote the book on civil procedure–will moderate a discussion with three experienced federal Judges on current issues in class litigation. John Beisner and Elizabeth Cabraser–two of the most respected defense and plaintiffs’ lawyers respectively will be together discussing changing class certification standards–you can’t get better speakers than those two. Finally, this program is a great bargain. Attendees get a full day’s worth of CLE credit (including some ethics credit), they get to have lunch and network with other class action practitioners, and they get a great book of written material. We also have some nice discounts for members of the American Bar Association, and particularly members of the ABA Section of Litigation.
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