Presentation on theme: "Class Action Settlement Objectors Minimizing and Defending Challenges by Professional Objectors, Government Officials and Public Interest Groups Today’s."— Presentation transcript:
Class Action Settlement Objectors Minimizing and Defending Challenges by Professional Objectors, Government Officials and Public Interest Groups Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. TUESDSAY, JANUARY 10, 2012 Presenting a live 90-minute webinar with interactive Q&A Bruce D. Greenberg, Partner, Lite DePalma Greenberg, Newark, N.J. Paul G. Karlsgodt, Partner, Baker Hostetler, Denver
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23 Baker Hostetler A “Taxonomy” of Objectors Listed in order of concern: Whackos (non-class members who send crazy letters to the judge or settlement administrator) Individual class members Professional or “Greenmail” objectors Public Interest objectors Government objectors
24 Baker Hostetler Public Interest Objectors How are they distinguishable from professional or “greenmail” objectors? –Can’t buy them off –Have a policy agenda Policy interests can vary –Consumer advocates –Pro-business advocates –Class action opponents and tort reform advocates How they object –They may represent objectors, often on a pro bono basis. –They may also appear as amicus parties.
25 Baker Hostetler Government Objectors Who are they? –Individual regulators –Attorneys general –Groups of AGs What are they concerned with? –Consumer protection –Regulatory control –Preserving government powers What types of settlements are they interested in? –Claims that are the subject of regulatory investigation or action –Coupon settlements or other settlements where consumers have no opportunity for any meaningful benefit –Cases involving acts or events that are subjects of public outcry –Cases brought to their attention by other AGs (especially California) –Releases that purport to curtail regulatory power
26 Baker Hostetler Considerations Common to All Non-Greenmail Objectors They are not interested in extracting money out of the settlement. They have limited resources, so they look for the most egregious cases. A fair settlement with a good notice program is not likely to attract either government or nonprofit objectors.
27 Baker Hostetler Strategies for Avoiding Non- Greenmail Objectors Avoid appearance of collusion –Allow some confirmatory discovery or exchange information. –Make sure to keep a record of negotiations. –Consider hiring a mediator or using court-sponsored dispute resolution service. Avoid coupon settlements –Wilson v. DirectBuy, Inc., Civ. A. No. 3:09-CV-590 (JCH), slip op. at 8-29 (D. Conn. May 16, 2011) (denying final approval to coupon settlement following objections by 39 Attorneys general and a consumer advocacy group, who argued that the relief provided essentially amounted to a coupon settlement). –Figueroa v. Sharper Image Corp., 517 F. Supp. 2d 1292 (S.D. Fla. 2007) (denying final approval of a coupon settlement due in part to objections raised in an amicus brief filed by 35 attorneys general).
28 Baker Hostetler Strategies for Avoiding Non- Greenmail Objectors (cont’d) Don’t overreach with the release. Avoid unnecessary publicity. Have a principled basis for dealing with unclaimed funds. Reversion – Money is returned to the defendant. –Pro rata – Money is paid pro rata to class members who did file claims. –Cy pres – Money is paid to charity. For a good discussion of each of the three possible methods for distributing unclaimed funds, see Klier v. Elf Atochem North America, Inc., 658 F.3d 468, 475 (5th Cir. 2011).
29 Baker Hostetler Strategies for Avoiding Non- Greenmail Objectors (cont’d) Ensure reasonable notice. –Reasonable notice and an opportunity to participate, not the level of participation itself, should be the focus on whether the settlement complies with due process. –Comply with Rule 23(c)(2)(B). –Follow FJC plain notice guidelines. See www.fjc.gov.www.fjc.gov –Retain a qualified notice expert. –Make sure you give proper CAFA notice in federal court. 28 U.S.C. § 1715. Be honest and forthright with the court during preliminary approval.
30 Baker Hostetler For further study FJC Class Action Notices Page, http://www.fjc.gov/.http://www.fjc.gov/ Bruce D. Greenberg, Keeping the Flies out of the Ointment: Restricting Objectors to Class Action Settlements, 84 St. John’s L. Rev. 949 (2010). Paul Karlsgodt & Raj Chohan, Class Action Settlement Objectors: Minor Nuisance or Serious Threat to Approval? 12 Class 744, (BNA Class Action Lit. Rep., August 12, 2011), http://classactionblawg.files.wordpress.com/2011/09/bnaartic.pdf http://classactionblawg.files.wordpress.com/2011/09/bnaartic.pdf Shannon R. Wheatman & Terri R. LeClercq, Majority of Class Action Publication Notices Fail to Satisfy Rule 23 Requirements, 30 R EV. L ITIG. 53 (2011). Todd B. Hilsee, Shannon R. Wheatman & Gina M. Intrepido, Do you really want me to know my rights? The ethics behind due process in class action notice is more than just plain language: A desire to actually inform. G EO J. L EGAL E THICS, 18 (4), 1359-1382 (2005).
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