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Posts Tagged ‘ethics’

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.

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I’m pleased to announce that I’ll be chairing the ABA’s 2nd Annual Western Regional CLE Program on Class Actions and Mass Torts.  The event is co-sponsored by the Section of Litigation’s Class Actions and Derivative Suits, Mass Torts, and Securities Litigation Committees, as well as the San Francisco Bar Association, which will host the event.  It will be held the afternoon of Friday, June 19, 2015, in San Francisco, California.

The program will begin with lunch at noon and will end at 5:20, followed by a sponsored cocktail reception.  The location is 301 Battery Street, Third Floor, San Francisco, California 94111.

Our esteemed faculty of judges, academics, and practitioners from both sides of the bar will present four panel presentations on timely class-action-related topics, including:

  1. Class action ethics
  2. Proposed amendments to Rule 23
  3. Food labeling class actions
  4. The use of expert witnesses in securities class actions after the Supreme Court’s Halliburton decision

Online registration is now open!  Please click this link to register and for more information.

I hope to see you there.

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The ABA-sponsored annual National Institute on Class Actions is the premier CLE conference focusing on class action trends.  This year’s event will be held on October 23 and 24 in Chicago.  I will be participating on a panel discussing trends in privacy class actions, and there are a variety of other excellent panel presentations scheduled, including a program on business development for both plaintiff’s and defense attorneys.  This year’s Showcase Program is a Town Hall Meeting with the Rule 23 Subcommittee of the Advisory Committee on Civil Rules, so if you would like to have some input into the future of Rule 23, you’d best be in attendance!   For those of you who are new to class actions, Dan Karon and Drew McGuinness are reprising their second-to-none Class Actions 101 program.

For more information and to sign up for this excellent program, please click the link below.

http://shop.americanbar.org/eBus/Default.aspx?TabID=1444&productId=211246

 

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Readers, don’t miss this exciting upcoming regional CLE program in San Francisco.  It’s a great opportunity to network with judges, academics, in-house lawyers and private practitioners who share a passion for class actions and mass tort litigation.  See below for a link to the registration page.  Hope to see you there!

CLICK HERE FOR MORE INFORMATION AND TO REGISTER

Who’s in Charge Here?: The Role of Lawyers, Clients, Insurers, and Judges in Class Actions and Mass Tort Litigation

Presented by the Class Actions and Derivatives Suits, Consumer Litigation, and Mass Torts Committees

Date and Time: Thursday, June 19, 2014, 12:00pm – 7:00pm

Location: University of San Francisco Law School, San Francisco, CA

Synopsis:

The Gulf Oil Spill, the 9-11 terrorist attacks, massive product recalls and credit card data breaches—these and other large-scale conflicts generate correspondingly massive litigation, requiring courts, parties, attorneys, and insurers to adapt to increasingly complex challenges. For this half-day CLE event, we have assembled a distinguished group of judges, academics, mediators, and counsel to discuss some of the most pressing issues facing the various stakeholders.

Our all-star panels will explore ethical and other standards for selecting and evaluating named class representatives; coverage and other current issues surrounding consumer data breach class actions; the balancing of individual plaintiffs’ interests in settlement of mass tort cases; and cutting-edge case management techniques gleaned for among the most tragic mass disasters of our time—the 9-11 attacks and the Gulf Oil Spill.

We are pleased to feature the Hon. Alvin Hellerstein, U.S. District Court for the S.D. of New York—who presided over the 9-11 cases; the Hon. Jon Tigar of the U.S. District Court for the N.D. of California; Tara Kelly, inside counsel at British Petroleum (Houston); Prof. Deborah Hensler of Stanford Law School; Assoc. Dean Joshua Davis of the University of San Francisco School of Law; and Jocelyn Larkin, Executive Director of the Impact Fund (Berkley), among our distinguished panelists. Lunch will be provided, and the program will be followed by a sponsored cocktail hour, providing ample opportunities for networking. Come join us for an enlightening afternoon.

Program Highlights:

  • Whose Class Is It Anyway? –The Policy, Practice, and Ethics Behind the Search for Named Plaintiffs (Ethics CLE Credit Applied for)
  • Recent Developments in Data Privacy Class Actions and Insurance Coverage
  • It’s The Trees Not the Forest – Considering Individual Interests in Mass Torts Settlements
  • Judicial Quasi-Class Actions – Managing MDL and mass tort litigation through judicial control over the appointment of lead counsel, attorneys’ fees, and cost-shifting

Faculty:

  • Hon Alvin K. Hellerstein, U.S. District Court of the Southern District of New York
  • Hon Jon S. Tigar, U.S. District Court for the Northern District of California
  • Professor Joshua Davis, University of San Francisco Law School
  • Professor Deborah Hensler, Stanford University Law School
  • Tara Kelly, British Petroleum, Houston, Texas
  • Thomas Kang, ACE North American Professional Risk, Los Angeles
  • Catherine Yanni, JAMS, San Francisco
  • Jocelyn Larkin, Impact Fund, San Francisco
  • Sheila Birnbaum, Quinn Emanuel Urquhart & Sullivan, New York, New York
  • Paul Karlsgodt, BakerHostetler, Denver, Colorado (Program Co-Chair)
  • Linda D. Kornfeld, Kasowitz, Benson, Torres & Friedman LLP, Los Angeles
  • Karen Menzies, Robinson Calcagnie Robinson Shapiro Davis, Newport Beach
  • Andrew McGuinness, Ann Arbor, Michigan (Program Co-Chair)
  • Rudy Perrino, Walsworth Franklin Bevins & McCall, Los Angeles
  • Rosemarie Ring, Munger, Tolles & Olson LLP, San Francisco
  • Christina Terplan, Clyde & Co., San Francisco
  • Timothy Tomasik, Tomasik Kotin Kasserman, Chicago, Illinois
  • Donna L. Wilson, Manatt, Phelps & Phillips, Los Angeles

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For anyone who was interested in my recent “save the date” post about the upcoming webcast, Social Media for Lawyers: Do’s, Don’ts, Why Nots, and You Probably Shouldn’ts, click the title for a link to the West Publications web page for the program, where you can get more information and sign up.  We hope you can make it!

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This is not class action related, but it is blawg related.

I will be participating in a CLE webcast on July 27, 2012, which has the working title Social Media for Lawyers: Do’s, Don’ts, Why Nots, and You Probably Shouldn’ts.  The will be presented by the West LegalEdCenter.  My co-panelists will be Kristine Scott, Corporate Compliance Director – Privacy, for Aon Service Corporation, and fellow class action blogger H. Scott Leviant of The Complex Litigator.  Below is a brief summary of the program.  I’ll post more details as soon as they are available.  We hope you can join us!

In this webcast, our panel will address the common ethical and legal pitfalls associated with the growing use of blogs, Twitter, facebook, LinkedIn, and other social media in law firms and corporate environments.  The three unique perspectives  offered by the panelists on this timely subject will provide useful information for both in-house lawyers and private practitioners in a variety of firm sizes and practice areas. 

Part I will address the unique ethical issues facing the plaintiffs’-oriented or small firm lawyer.  Issues include the ethics of “friending” judges, how to ethically use social media in advertising, whether to segregate personal and professional social media use, how to provide legal commentary without giving legal advice, selecting social media based on practice type (one size does not fit all), and the circumstances under which it is appropriate to use social media to publicize events in a pending case.

Part II will address ethical and risk management issues facing corporate lawyers and executives.  Topics to be addressed in Part II include best practices in social media policies, the use of social media by employers in vetting potential employees, protection of employee or customer privacy, and how and when it is appropriate for an employer to  monitor employee social media use.

Part III will focus on ethical issues for large firms and lawyers in large firms.  Topics include maintaining a level of appropriate decorum without boring your audience, when and how to talk about clients in social media, the danger of “issues” conflicts and other conflicts of interest, and best practices in law blog comments policies and disclaimers.

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The best single piece of advice I ever got as a young lawyer came on one of the first days of my clerkship with the late U.S. District Judge D. Brook Bartlett.  My fellow clerk Jon Duncan and I were visiting Judge Bartlett at home to go over a pile of orders and bring him the Big Mac and fries that he’d been craving.  He was working from home while going through a round of chemotherapy following a bone marrow transplant to treat the cancer that would ultimately take his life a few years later.  Judge Bartlett gave me a lifetime’s worth of lessons in the two years I was honored to spend with him, and he serves as a role model for me both as an accomplished lawyer and as a person of extraordinary integrity, wisdom, and courage.

But this particular piece of advice came from the Judge’s wife, Karen Iverson, an accomplished lawyer in her own right.  Karen had been a partner in a big Kansas City firm before deciding to follow her passion and pursue a second career in theatre design.  I think it was when we were discussing how the Judge should deal with a minor discovery dispute, or a dispute about a request for a continuance or extension of time, that Karen let us in on her key to success: kill your opponent with kindness.

Agree to reasonable extensions of time and other requests, she said.  Be accomodating to opposing counsel.  Don’t raise an objection just because you can if it doesn’t help your client.  Give complete and thoughtful responses to discovery requests.  Don’t think it’s necessary to fight about every minor issue.  Then, when it’s time to argue about something important, you’ll have the credibility you need for the court take your position seriously, and you might even catch your opponent off guard.

I haven’t always followed Karen’s advice.  I recall more than a few shouting matches with opposing lawyers, especially during my first years as a litigation associate.  Those were arguments that never got me or my client anywhere.  No matter how earnest my argument, my opponent wasn’t going to be persuaded by it, and losing my cool wasn’t helping me keep the clarity of thought needed to develop and follow the best strategy for my client’s cause.

When I have followed Karen’s advice, though, it’s never steered me wrong.  Whether it has been due to following her strategy of civility, or just fantastic luck, I have been blessed in more recent years to have developed mostly collegial relationships and even friendships with opposing lawyers.  Getting along with opposing counsel has never, in my view, cost my clients anything.  I can meet all of my ethical obligations to my client and be a zealous advocate on the meaningful issues in the case without being a jerk to opposing counsel.  And the benefits of the approach are numerous, both for me and my clients.  I get extensions of time when I ask for them; I don’t get threatened with motions for sanctions; I am taken at my word in discovery without having to “prove” that I have fully complied with a request; settlement, even without the aid of a mediator, is a much easier process; and maybe most important at all, my stress level stays fairly low.

I’m sure part of the explanation for the civility that I have encountered in my practice may be the nature of a consumer class action practice itself.  The cases drag on for years even under the best of circumstances and the lawyers know from the outset they are going to have to deal with each other for a while, so they might as well get along.  Decision-makers on both sides tend to make their decisions based on a cost/benefit analysis as opposed to emotions.  The lawyers know that the size of the cases already make them a burden on the court, so they may tend to tread more lightly when it comes to deciding whether to resort to the Judge to resolve minor disputes.  But whatever the reason, my many positive relationships with opposing counsel have only strengthened my belief that the Golden Rule is not inherently inconsistent with the practice of law.

Maybe someday, years from now, a seasoned litigator will look back to his or her time as a young lawyer and remember hearing from me the same advice that Karen gave to me those years ago.  If so, I will be able to count my legal career a success.  Karen’s advice has withstood the tests of my experience, although I still have to remind myself of it from time to time.  Practicing with civility isn’t just a way to get opposing lawyers to like me, and it’s not just the right thing to do–It’s also the best way I know to serve the interests of my clients.

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