Even before the current pandemic crisis, we have noticed a growing trend in the filing of class action lawsuits challenging, under the Consolidated Omnibus Budget Reconciliation Act (COBRA), notices required to be issued by covered employers regarding continuation health care coverage available to employees and their beneficiaries under a variety of circumstances, including involuntary or voluntary job loss. We believe that trend will only accelerate in the wake of ... Keep Reading »
Another Premature Motion to Strike Class Allegations Bites the Dust
Courts have been and likely always will be reluctant to strike class allegations or deny class certification before class discovery. Indeed, over-aggressive attempts to strike class allegations can often do more harm than good when the court, in denying a motion to strike, gives the plaintiff a roadmap of how to proceed at the class certification stage. Custom photography company Shutterfly was recently reminded of that tendency when a California district court denied ... Keep Reading »
Reporting for Work
Does reporting for work require physically showing up at the place ready to work? The Ninth Circuit just confronted this issue. It decided that California’s Wage Order No. 7-2001 does not require an employee to report to work in person in order to qualify for reporting time pay. No physical presence is required. Although this case does not directly implicate the variety of remote and virtual work arrangements that have been instituted in light of the current public ... Keep Reading »
The Conservative Case for Class Actions: A Provocative Proposal
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 »
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