I attended the National Institute on Class Actions in Las Vegas last week, and it was probably the best one yet, considering the powerhouse lineup of speakers and excellent topics. This year’s event also marked the 20th anniversary of the Institute, and the 50th anniversary of the introduction of the modern class action rule in 1966. I’ve tried to include a short summary of some of the highlights of each of the presentations below. For more on what you missed, click here for the full program brochure.
Class Actions 101, 201, and 301
As has become a tradition in recent years, the conference kicked off with Yoga, along with a series of class action training sessions for attorneys and judges new to the practice area. As in past years, the training portion of the program was led by class action expert Drew McGuinness and Program Chair Dan Karon, with help this year from Lauren Guth Barnes and E. Colin Thompson. In addition to the basic Class Actions 101 course and the advanced Class Actions 201 course, new this year was Class Actions 301, taught by Karon, which covered legal writing tips for class action lawyers.
“Viva Review!” The Past Year in Class-Action Action.
Instructors: Professor John C. Coffee, Jr., Professor Alexandra D. Lahav
The main program kicked off with what has become an annual tradition at the Institute. Class action scholars John Coffee and Alexandra Lahav gave their annual rundown on the key developments in the courts on class action issues over the past year and their predictions for where class actions are headed in the coming year. One highlight for me was Lahav’s summary of divergent rulings on the question of ascertainability, which continues to be an area of uncertainty and controversy in the lower courts.
“From Mirage to Immense.” The Genesis, Creation, and Evolution of Rule 23.
Host: Daniel R. Karon
Guest: Professor Arthur R. Miller
What better way to celebrate the 50th anniversary of the modern formulation of Rule 23 than to hear the story of the 1966 amendment by someone who actually helped draft it. Titan of American civil procedure, Professor Arthur Miller, gave a colorful history of the development of Rule 23, including entertaining stories about how a small group of now-well-known attorneys and academics, including Miller, Ben Kaplan, Archibald Cox, and Charles Alan Wright, came together in the mid-1960s to develop the innovations that gave us the class action rule we know today. A highlight was the story of how Miller used a manual typewriter to memorialize what ultimately became 23(b)(3) while in the back seat of Kaplan’s car on a ferry ride to the Kaplans’ summer home in Martha’s Vineyard. A neighboring car mistook the sound of the typewriter as a sign that the boat was sinking.
“Winning Big or Crapping Out.” Class-Action Ethics from a Real-Life Perspective.
Host: Melissa H. Maxman
Guests: Honorable Gene E.K. Pratter, Professor Joshua P. Davis, Thomas G. Wilkinson, Jr.
This panel examined a series of hypotheticals raising ethics issues, specifically how the courts sometimes treat ethics issues differently when they arise in the class action context. Among the colorful examples was the situation in which a plaintiffs’ class action attorney has a consensual sexual relationship with a woman who he later discovers is an absent class member.
“A Winning Hand or a Flop?” After 50 Years, Are Class Actions Still Legit?
Host: E. Michelle Drake
Guests: Michelle K. Fischer, Professor Richard D. Freer, Patrick J. Ivie, Jocelyn Larkin
In this presentation, a diverse group of plaintiffs’ and defense attorneys, a public interest attorney, settlement administrator, and an academic discussed common criticisms of modern class actions and insights into future trends. I was particularly interested to hear the panelists views on the viability of claims-made settlements and the benefits and criticisms of using electronic and other non-traditional notice in settlement adminstration.
“Behind the Curtain.” Examining Class Actions from the In-House Perspective.
Host: Sabrina H. Strong
Guests: Jennifer Bechet, Karin F.R. Moore, Ken K. Patel, Robert E. Bailey
This presentation offered insights from a panel of in-house attorneys whose companies face class action lawsuits. I thought one of the key points, reinforced in different ways by several panelists and consistent with my own experience, is that the threat of class actions doesn’t ordinarily have a deterrent effect on corporate business practices because most companies aren’t looking to intentionally harm their customers.
“Pit Boss Powwow.” Exactly What Is the MDL Judge College and How Does It Work?
Host: Vincent J. Esades
Guests: Honorable Barbara J. Rothstein, Honorable Jack Zouhary, Honorable J. Frederick Motz Sure
A behind-the-scenes treat, this panel of federal judges offered insights into how judges are selected and trained to preside over multi-district litigation proceedings. I thought it was notable that in recent years, practitioners have been brought in to speak at the annual training program to offer a practitioner’s perspective about what works and what doesn’t in complex MDL proceedings.
“Hitting the Jackpot!” A One-on-One Class-Action Conversation with Judge Richard Posner.
Host: Daniel R. Karon
Guest: Honorable Richard A. Posner
In one of the highlights of the Institute this year (along with Professor Miller’s presentation), Judge Richard Posner sat down via teleconference for an interview with Dan Karon. Judge Posner’s remarks were filled with unique insights and a few zingers including his comment that class action settlements are “an invitation to shenanigans” where, in his view, the class is at the mercy of the plaintiffs’ attorneys, and the Defendants interested in getting off as lightly as they can, so the judiciary has an important role in scrutinizing the terms. He also talked about his process for reaching a decision in a case. He considers the case as a problem to be solved in general terms, comes up with a practical solution to that problem that makes sense, and then evaluates whether there is anything in the law that “blocks” that solution. At one point he quipped, “I don’t get a lot out of Rule 23,” preferring instead to consider the Rules of Civil Procedure in general terms and reaching a holistic judgment.
“Small Wagers, Big Results.” How the Supreme Court’s Tyson Foods Decision Could Affect Your Practice.
Host: Andrew J. McGuinness
Guests: Honorable Terrence G. Berg, Eric Grannon, James Langenfeld, Ph.D., Paul Novak, Joseph M. Sellers
This panel presentation on expert witnesses and statistical sampling was highlighted by a mock oral argument of a class certification proceeding in which the plaintiff sought to introduce statistical sampling evidence in an antitrust case. The argument offered a practical way of evaluating how issues presented by the Supreme Court’s decision in Tyson Foods might play out in a context other than wage and hour employment litigation.
“Into the Stratosphere or Simply a Circus Circus?” After Fifty Years, What’s Class Actions’ Future?
Host: Fred B. Burnside
Guests: Professor Brian T. Fitzpatrick, Professor Robert H. Klonoff, Arthur H. Bryant, William Donovan, Jr.
A fitting end to an outstanding program, this panel of top class action scholars and practitioners offered insights into the current state of class actions and what might be in store in the near future. Here are some highlights on the predictions offered by the panelists: 1) class actions are not going away; 2) the continued growth of mass commerce will continue to spawn class action litigation; 3) Justice Scalia’s death will have a significant impact on class action jurisprudence going forward and the judiciary is likely to get less friendly to defendants in the short-term; 4) technology will make a big difference for the better in managing class action litigation; 5) defendants will continue to come up with creative, far-reaching ways of limiting class actions; 6) plaintiffs’ attorneys will continue to bring class actions when a) they think they can make money and/or b) they think they will advance the public good; 7) there will be some good class actions and some horrible ones; 8) look out for states to pass new consumer protection laws similar to the New Jersey New Jersey Truth-in-Consumer Contract, Warranty and Notice Act (TCCWNA); 9) the TCPA and all-natural litigation booms will continue in the near future; 10) The CFPB will broadly define consumer finance services; 11) more class actions will go to trial; 12) what happens with the enforceability of arbitration clauses will have a big impact on the viability of many categories of class actions in the future; 13) look for more class actions in the federal courts in New York state.