Class Actions

Cy Près 101

In modern litigation, the term “cy près” refers to the act of designating unclaimed class funds to public interest organizations whose work furthers the interests of the class and is tied to the purpose of the litigation. But the concept of cy près originated long ago in the law of charitable trusts in courts of equity. Today, cy près is generally used only after class funds have been distributed to class members, but it has become impossible or impracticable to distribute some remaining portion of the class funds, such as in the following situations:

Economic Justice: Resisting Zombie Claims by SSA

Imagine receiving a notice from the IRS that your long-awaited tax refund has been withheld by the Social Security Administration (“SSA”) because you were once paid Social Security benefits and SSA has identified a benefit overpayment that occurred over a decade ago — or one of your parents was once paid Social Security benefits on your behalf over a decade ago and SSA identified an overpayment. If the withheld amount was $2,100, would you go out and find an attorney to represent you in an individual case against the SSA?

Civil Rules Committee Takes On Serial Objectors with Proposed Rule 23 Changes

For 18 months, we have been tracking the work of the Advisory Committee on Civil Rules, and specifically its Rule 23 subcommittee, which has been evaluating a range of proposals to amend the federal class action rule.  That work was recently completed and the Committee will soon set a schedule for public comment on a series of draft amendments.

The good news is that the Rule 23 proposals are modest and are not likely to trigger significant opposition like the firestorm that accompanied the discovery rule changes. 

"Concrete" Still Not Set In Spokeo Decision

The Supreme Court yesterday decided the third of three class actions cases from this term that we have been closely watching, Spokeo Inc. v. Robins.   A few observations.

Phew!  The Court did not adopt the most extreme of defense arguments that Congress cannot authorize statutory damages where the victim cannot prove that he or she actually lost money as a result of corporate malfeasance.

Defending the use of Class Actions for Enforcement of Civil Rights Laws

It's a fact of life that long-awaited vacations can sometimes be spoiled by an ill-timed rain storm, lost luggage, or a bad reaction to that local street food.  But discrimination?

Plaintiffs Ann Cupolo-Freeman, Ruthee Goldkorn, and Julie Reiskin use wheelchairs for mobility and were denied equal access to hotel transportation services at hotels owned by Defendant Hospitality Properties Trust (“HPT”). 

SCOTUS Denies Cert in Wal-Mart Stores v. Braun

On April 4, the U.S. Supreme Court denied cert in Wal-Mart Stores v. Braun, a wage and hour class action brought on behalf of 187,000 hourly Wal-Mart workers in Pennsylvania.  The case was tried in the Pennsylvania state court in 2006, and Michael Donovan and his team obtained a $188 million verdict for the workers. The heart of the appellate dispute was Wal-Mart’s decision to stop keeping records of wage and hour violations.

THE Underground Guide To Class Action Slang (PART TWO)

The 2016 Impact Fund Class Action Conference held on February 18/19, gathered class action practitioners and impact litigators from across the country for two days of brainstorming, war stories, and colorful lemon-based metaphors. It also reminded me of a few more terms to add to our growing Impact Fund Class Action Dictionary...

The Underground Guide To Class Action Slang (part One)

Over the past half-century, class actions have changed the world for the better:  desegregating schools and workplaces, ensuring clean air and water, and exposing unsafe products and corporate fraud.  But, have you considered their impact on the English language?  Class actions have spawned some inventive slang, which can be bewildering to practitioners new to the field, much less to ordinary folks.  We’re here to help with this, the Impact Fund Class Action Dictionary. 

Top 10 Tips For Your Next Class Action Settlement Mediation

It is the day we are all waiting for. Game Day. Mediation. Your firm has spent 1,246.7 hours on the case so far, but everything will happen in these 12 hours. By the end of the day, you are so emotionally exhausted from the mediator pounding on you, and so happy to have the mediator come in with a number that you can tolerate, that you walk out with a pending mediator’s proposal that only says the gross dollar value of the global settlement. Perhaps you leave the mediation with a handshake agreement, but without nailing down the details of the Memorandum of Understanding. Oops. The devil was in those particular details. Everyone who has negotiated a class action settlement has probably had some term he or she forgot to address at mediation, or in the MOU, that returned in drafting the “final” agreement as a big headache and put the deal at risk. I have. I have thought, at many class action mediations, “I wish I had a checklist so I would remember all the key terms.” Here it is...

Ninth Circuit Win For Transparency

The Ninth Circuit’s decision in The Center for Auto Safety v. Chrysler Group, decided January 11, 2016, adopted a new standard for district courts to use in deciding whether the public has a right to access court records filed by the parties under seal.   The decision will go a long way to ensure that corporations cannot hide evidence of misconduct that may threaten public safety.   The decision also has important implications for class action litigators.   

Class Action Settlement Ethics - Talk Class Relief First, Fees Later

Counsel negotiating a settlement on behalf of a class should start with class relief before any talk of attorneys’ fees, a plaintiffs’ attorney says. That will ensure that the attorney avoids “the most obvious and most serious of ethical allegations: that you have traded off class relief and fees,” Jocelyn Larkin, executive director of the Impact Fund, told webinar attendees Aug. 20.

Defendants often try to negotiate class settlements with one number, saying they don’t really care how it’s allocated, she said. “Resist negotiating along those lines.” Tell defendants early that you want to discuss class relief first, and only then talk about fees and incentive awards, she said. She suggested getting the mediator’s help in keeping the discussions separate if possible.

Campbell-Ewald Co. v. Gomez – New Classic or the End of a Trend?

As a third-grader growing up in the suburbs of Minneapolis, Minnesota, I wouldn’t even think of leaving the house without pulling on my most fashionable pair of pants: Zubaz. They were so cool. Tiger print? Check. Cozy sweatpants material? Check. Available in the color scheme of my favorite pro football team? Of course. Everyone was wearing them. Everyone.

Thankfully, fashion trends come and go. The same can be said for class action defense strategies. Every so often, the defense bar comes up with a new plan to stop class actions in their tracks.