Vanderbilt University law professor Brian Fitzpatrick has written a new book titled The Conservative Case for Class Actions (University of Chicago Press, 2019). An excerpt was published in the winter 2020 issue of Vanderbilt Law. I haven’t read the book yet, but since I am a class action lawyer, a conservative, and a Vandy grad, I found the excerpt intriguing and worthy of mention. Fitzpatrick proposes that class action lawsuits are good for conservative principles, ... Keep Reading »
Take Notice: FTC Reports on Claims Rates and Settlement Notices
In September 2019, the Federal Trade Commission issued a staff report titled "Consumers and Class Actions: A Retrospective and Analysis of Settlement Campaigns." The FTC staff studied 149 consumer class action settlements and conducted an internet-based consumer research study to explore consumer understanding of class action notices. Among the salient findings were: The overall claims rate of the cases in the sample was less than 10%. Specifically, the median ... Keep Reading »
Class Action Survey: What Percentage of Companies are Facing Class Actions in Which Exposure is Deemed Potentially Devastating?
Today’s class actions continue to reflect high levels of risk, with riskier class actions on the rise. Across the board, the percentage of companies facing class actions that they consider complex, high-risk, or bet-the-company increased in 2018, while fewer companies report facing lower exposure cases. Each year since 2016, companies have categorized more than one-fourth of their class actions as either “bet-the-company” or “high-risk” matters. After decreasing in ... Keep Reading »
Class Action Survey: Corporate Counsel Report Big Changes in Use of Arbitration Clauses
After the repeal of the Consumer Financial Protection Bureau’s rule banning the use of class action waivers in certain arbitration agreements, the percentage of companies using such waivers increased to 37.2% in 2017. As expected, the use of arbitration clauses increased in 2018, and the percentage of companies that included class action waivers in their arbitration clauses increased to nearly 50%. More companies now use arbitration clauses that bar class actions than in ... Keep Reading »
Class Action Survey: What is the Most Widely Used Condition of Class Action Settlements?
According to the 2019 Carlton Fields Class Action Survey, affirmative claim requirements remain the most widely used condition of class action settlements. Nearly 79% of companies required an affirmative claim for payment as a class action settlement condition in 2018, a percentage that has incrementally, but steadily, increased over the last several years. Companies also were more likely in 2018 to differentiate among categories of class members, require a showing of ... Keep Reading »
Class Action Survey: What is the Role of Outside Counsel in Early Case Assessment? Nearly 75% of Counsel Rely on Outside Counsel to Help Them With This One Task
More than 90% of companies continue to rely heavily on early case assessment with the help of outside counsel to contain costs and manage class action risk. As companies see an increase in the volume of class action matters and related exposure, they lean on outside counsel for a variety of early case assessment tasks and planning. While many companies have routinely used outside counsel to assess case facts and exposure and develop strategy, in this year’s 2019 Carlton ... Keep Reading »
Class Action Survey: Settle Early or “Defend At All Costs”? Corporate Counsel Weigh in on Class Action Defense Strategies
With increased volume and exposure, more companies facing class actions are employing a case-by-case approach to formulate their defense strategy. In 2018, a majority of companies — 53.2% — assessed each class action separately to defend “at the right cost.” This is up from 39.6% of companies in 2017. Only 10.6% say they prefer to settle such matters early, while 21.3% take an aggressive stance and 14.9% employ a “defend at all costs” strategy. ... Keep Reading »
High School Female Athletes Face Hurdles to Class Certification
The U.S. District Court for the District of Hawaii recently denied female student-athletes’ motion for class certification under Title IX even though it rejected the defendants’ attacks on mootness and standing as well as Rule 23(a)’s requirements for commonality, typicality, and adequacy. Instead, the court found that the proposed class failed to satisfy the numerosity requirement that joinder would be impracticable. The underlying case centered on Title IX ... Keep Reading »
Class Action Survey: Defense Cost is the Least Important Risk Variable Corporate Counsel Consider When Evaluating Risk. What is the Most Important Risk Variable?
Companies identified exposure as the most important variable they consider when evaluating class action risk. Exposure ranked as 8.9 on a 1–10 scale of importance. Win probability, relevant case law and facts, and reputational impact also were ranked as important risk variables, but less significant than exposure. Defense cost is the least important variable when assessing class action risk, at a rating of 6.1 out of 10. These rankings reflect little change from the 2017 ... Keep Reading »
Class Action Survey: What Percentage of Companies Have Their Class Action Defense Costs Covered by Insurance?
According to the 2019 Carlton Fields Class Action Survey, 39.5% of companies had a portion of their class action defense costs covered by insurance in 2018, which is unchanged from the prior year. Twenty-four percent of companies with insurance have full coverage outside the cost of self-retention. ... Keep Reading »
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