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Posts Tagged ‘class action’

I’m very pleased to be chairing the ABA Section of Litigation’s Sixth Annual Regional CLE Program on Class Actions and Mass Torts this year.  The program will be held at the offices of the Bar Association of San Francisco.  Breakfast begins at 8:00 a.m., and the presentation begins at 8:45 a.m. on June 21, 2019.

Click here for more information and to register.

This year’s program will kick off with a panel discussing the recent amendments to Rule 23 as well as the Procedural Guidance for Class Action Settlements issued by the U.S. District Court for the Northern District of California.  Other topics include the use of virtual law firms in class action and mass tort litigation, developments in injury-in-fact and Article III standing, and developments in how courts are dealing with variations in injury and causation in addressing the predominance factor in Rule 23(b).

 

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Editor’s Note: The publication schedule for my notes of the recent international class action conference at the University of Haifa has suffered various setbacks due to staffing constraints.  Of course, since I have a staff of one, I only have myself to blame.  In any event, here is the third installment.  Expect additional installments in the coming weeks.

Panel 2: Enforcement of consumer rights by associations and regulators

CLICK HERE FOR THE FULL VIDEO REPLAY

The second panel presentation focused on the enforcement of collective rights by regulators and associations, a phenomenon that is the current norm for many types of collective redress proceedings throughout the world.  The panel discussed developments and case studies in Brazil, France, Germany, the UK, and other jurisdictions where regulatory and associational enforcement is more common, and juxtaposed those developments against the US collective redress regime, which focuses on private enforcement, particularly through the class action procedure.

The discussion touched on the pros and cons of private entrepreneurial litigation versus regulatory or nonprofit public interest enforcement, as well as the benefits and disadvantages of the US class action model as compared to public and associational regimes common in Europe and Latin America.  The panel repeated the theme that policymakers outside the US often believe that private enforcement easier creates an unacceptable risk of “letting the wolves in” and encouraging frivolous litigation.  On the other hand, there is a recognition that the US model can result in more frequent and higher recoveries for injured parties, oftentimes with lower overall transaction costs.

The panel discussed criticisms that regulatory/associational enforcement model may be illusory in many cases.  Regulators have the power to enforce in many EU countries by don’t often exercise it.  Many public authorities don’t like the idea of pursuing redress for individual consumers, preferring to act in more of a traditional regulatory enforcement role where they seek penalties or injunctive relief, but not individual damages for injured parties.  Nonprofit or special purpose associations often lack the financial incentive to pursue collective litigation, leading to a void in enforcement that is now being filled by emerging litigation funding models.  However, there is an ongoing debate about whether litigation funding should be limited to not-for-profit public interest organizations or whether for-profit, venture capitalist litigation funding should be allowed.

The panel also discussed the significant impact of the lower pays rule, where an unsuccessful plaintiff is responsible for paying the legal fees of the defendant, in discouraging private enforcement in jurisdictions outside the US. The loser pays rule creates a greater need for associational or public enforcement that is not generally present in the US, where the “American Rule” generally makes both sides responsible for their own legal costs despite the outcome, in the absence of a statutory cost-shifting provision.

Another factor discussed by the panel as impacting the effectiveness of a collective redress regime is whether the model allows for an opt in collective action or opt out class action.  In an opt-in proceeding an individual claimant has to take affirmative steps to participate.  In an opt-out proceeding, exemplified by the US class action rule, potential claimants can be passive beneficiaries to the litigation and reap the benefits of a successful case without taking any affirmative action at all, but risk having their rights barred if the action is not successful.   Panelists discussed situations in which opt-in regimes incentivized potential claimants hold back and await the outcome of regulatory or associational legal action before deciding whether to act at all, something US class action procedures have the practical effect of discouraging in most cases.

I found this presentation intriguing because it offered a summary of the key comparative differences between collective redress regimes available outside the US as compared to the US class action model, and offered key insights into many of the policy rationales underlying those differences.

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I’m very pleased to report that I will be moderating a panel on the use of statistics in class actions at the 3rd Annual International Conference on Dispute Resolution of Consumer Mass Disputes Collective Redress, Class Action, and ADR, sponsored by the University of Haifa in Haifa, Israel.  Our panel presentation will be just one of many excellent presentations on a variety of topics in the ever-evolving area of international class actions and collective redress.  The faculty includes titans of the bench and bar from a variety of jurisdictions, as well as top academic minds from universities around the world.  Registration is still open to attend this excellent conference in a beautiful venue.  Click the link below for more information:

https://lawers.club/wp-content/uploads/2019/03/Agenda_compressed.pdf

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I’m proud to announce that I’ll be chairing the 5th Annual ABA Western Regional CLE on Class Actions and Mass Torts, scheduled for next Friday, June 22, 2018 at the offices of Clyde & Co. in San Francisco.  The program is co-sponsored by the Class Actions and Derivative Suits, Mass Torts, Consumer Litigation, Antitrust Litigation, and Securities Litigation Committees of the ABA Section of Litigation.  This year’s program covers a variety of timely class action-related topics, including ethics for those of you needing to fulfill your ethics CLE obligation.  For more information and to register, see the link below.  Hope to see you there!

https://shop.americanbar.org/ebus/ABAEventsCalendar/EventDetails.aspx?productId=327287675

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Happy 2018 to all!  I recently authored a blog post for BakerHostetler’s Class Action Lawsuit Defense Blog summarizing my top 10 class-action related developments of 2017.  For that article and other great class-action related content, please visit the Baker blog at the link below:

https://www.classactionlawsuitdefense.com/2018/01/10/the-top-10-class-action-related-developments-of-2017/

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Tomorrow, July 13, 2017 at 1:00 p.m. EDT, I’ll be presenting on a panel of attorneys and experts discussing the use of surveys and statistics in class actions.  The presentation is part of the ABA’s Committee Roundtable series and is sponsored by the Class Actions and Derivative Suits Committee.  Committee Roundtable events are free to ABA Section of Litigation members.  Click here to register.  See below for a copy of the program description:

 

Roundtable on Surveys and Statistics in Class Certification

Presented by:

Class Actions and Derivative Suits Committee

Co-Sponsored by:
Securities Litigation Committee

Thursday, July 13, 2017 – 10:00 – 11:00 AM PST

Join this Roundtable to hear leading Plaintiff’s counsel, Defense counsel and experts discuss the following topics concerning the use of Surveys and Statistics in Class Certification:

  1. General primer on the different types of statistics and common terminology
  2. Summary of case law use of statistics in arguing for and against class certification
  3. Types of statistics commonly used in class actions
    • Regression analysis
      • Example of case where used – antitrust case alleging a conspiracy to increase prices
      • Explain how regression could be used to estimate impact
      • Macro-commonality (Are regression estimates of impact consistent across broad groups within the proposed class?)
      • Micro-commonality (How do the prices paid by individual members of proposed class compare to the estimated impact)
    • Surveys
      • Example of case where used – food labeling cases
      • Surveys (with conjoint analysis) combined with regression (or other econometric techniques) often used to attempt to isolate the price premium that resulted from the misleading aspect of the labeling
  4. Preparing and cross-examining experts on opinions involving statistics

Presented by:
Brendan P. Glackin (Lieff Cabraser Heimann & Bernstein, LLP)
D. Lee Heavner (Analysis Group, Inc.)
Paul Karlsgodt (Baker & Hostetler LLP)
Olivier Toubia (Columbia Business School)

Introduction by:
Tonna Farrar (Bonnett, Fairbourn, Friedman & Balint, PC)

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I’m pleased to announce that I’ll be chairing the Fourth Annual ABA Regional CLE Program on Class Actions and Mass Torts, to be held on June 16, 2017 at the offices of the Bar Association of San Francisco.  This year’s program features four presentations on hot topics in class action and mass tort litigation from an expert group of practitioners, academics, in-house counsel, and judges.  See below for summaries of the four presentations, and click the link below to see the full brochure and to register.  Hope to see you there!

CLICK HERE TO REGISTER

Discovery Following the 2015 Federal Rules Amendments: What Does Proportionality Mean in the Class Action and Mass Tort Contexts?

It’s been about a year and a half since the amended Federal Rules of Civil Procedure went into effect, including amendments relating to proportionality governing both the scope discovery under Rule 26(b)(1) and preservation of potentially relevant ESI. But have the new rules changed the discovery available and relative obligations in class actions, mass torts, and other complex matters? This panel will review the purposes underlying the 2015 Amendments and how the law has been developing so far, and it will offer insights into best practices in expanding or limiting discovery in the class action and mass tort contexts.

Killer Class Actions or Endangered Species?

The United States Supreme Court has in recent years addressed an unprecedented number of issues related to class actions, ranging from “no injury” class actions to “trial by formula.” The panel of experienced class action practitioners will discuss the changing class action landscape and the potential lasting impact.

The Use of Expert Evidence in Class Actions: Effective Strategies and Pitfalls

The importance of expert testimony in class actions continues to increase, for example in connection with measuring class wide effects and satisfying class certification gate-keeping threshold questions. Topics to be discussed include 1) use of surveys in consumer class actions, when they are effective and how they can influence a case; 2) what can be learned from rare successful challenges about the utility of Daubert challenges in class action cases; 3) the challenges associated with the increasing technical requirements for class certification and implications of the importance of expert evidence on cases; 4) lessons learned and experience working with experts in class action matters.

Big Brother, Information Privacy, and Class Actions: How Big Data and Social Media are Changing the Class Action Landscape

Almost everyone has a smart phone these days, even your grandparents have social media accounts, and the amount of personal information that is generated about the average consumer on a daily basis is astronomical and growing exponentially. This panel will explore ways in which the emergence of big data and social media are impacting consumer class actions. Topics to be discussed include 1) consumer class actions that may arise from companies’ collection, use, or transfer of large amounts of consumer data; 2) changing attitudes on privacy of consumer data in the age of social media; and 3) the benefits and pitfalls of using social media and internet advertising in class action notice programs.

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