Practice Pointers

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One of the most common failings of plaintiffs’ counsel is inadequate due diligence on the individuals they put forward as putative class representatives.  Defense counsel should not repeat that mistake.

It is not unusual for putative class representatives to have flawed personal claims or to be subject to important individual defenses.  A named plaintiff may also present facts that make his claim demonstrably atypical of the class, or he may have baggage – such as a past criminal conviction for fraud – that make him facially inadequate as a class representative.  Sometimes it turns out a named plaintiff isn’t even a member of the proposed class. 

Continue Reading Practice Pointers:  Know Your Plaintiff

Arbitration agreements have become a fixture of American contracts, and companies have turned to them as a strategy for reducing class action exposure.  In recent years, plaintiffs have responded by initiating “mass arbitrations” – individual arbitrations filed on behalf of hundreds or thousands of customers or employees, which may immediately threaten companies with millions of dollars in arbitration-initiating fees alone.  Many companies, however, have been slow to react to the risks posed by mass arbitration.  This post discusses some of those risks, the difficulties companies have encountered in trying to address this issue, and potential strategies for mitigating the threat posed by mass arbitration.

Continue Reading A Closer Look: Avoiding a “Mass”-ive Arbitration Problem

There are numerous ways that a class action may be won through an effective litigation strategy.  But in some instances a corporate defendant will conclude that the most cost-effective approach is to pursue settlement rather than to take on the risks and costs of further litigation.  Before going down that road, one of the first things that will need to be evaluated is whether to pursue a class-wide settlement, complete with court approval under Rule 23(e) or its state equivalent, or instead to try the simpler route of settling with the named plaintiff only.

Continue Reading Practice Pointers: Should a Putative Class Action Be Settled on an Individual Basis?