If you get a sophisticated lawyer, they will walk away if you are able to show this isn’t a good case.” Moran explains. “I want to know who the plaintiff’s attorney is. Knowing the opponent is also important when evaluating strategy and settlement options. A class cannot proceed with inadequate counsel.” You must always evaluate whether plaintiff’s counsel is adequate. And then there are firms who should not be handling them. There are a number of plaintiff’s firms who handle exclusively class-action suits. “Study who the plaintiff’s counsel is, because it is essential. Payson, partner at Heller Ehrman, emphasizes this point. Is the plaintiff’s counsel competent to tackle such a complex matter? Inexperience of the plaintiff’s counsel may enable a company to mount a defense to the lawsuit on the basis of inadequacy of counsel. Recruit outside counsel to learn everything possible about the plaintiff’s counsel, particularly his or her level of experience in handling class-action suits. In addition, search for outside counsel who have defended claims brought by the firm that filed the class action. The best and most efficient representation will likely be provided by outside counsel with expertise in the substantive area underlying the class action and the procedural rules and strategies that govern class-action litigation,” notes Tiffani Lee of Holland & Knight. “Class-action lawsuits arise in a wide array of practice areas, including consumer, securities, antitrust, employment, healthcare, ERISA, and environmental. Hire defense counsel who specialize in class actions, preferably in the type of class action that is the subject of the complaint. Class actions are complex, sophisticated matters, and the wrong defense counsel can make a bad situation worse. Be familiar with opposing counsel, the judge, and most important, outside counsel. Factual issues are reviewed under an ‘abuse of discretion’ standard, which is very high. “Always have them in the back of your mind, because if you have to appeal, you want the appellate court reviewing legal issues, not factual ones. “After looking at the facts, look for legal issues,” recommends Walbolt. Next, examine the legal issues raised by the allegations in the complaint. Often, the actual facts are very different from what you believe they happen to be.Ģ. This process is surprising and revealing. You do that in any case, but in particular class-action lawsuits.” Thus, the first job is to gather the details, organize them, and compile them in an internal memo so that they are at your fingertips. “First, sit down with the client and get as many facts as you possibly can. Walbolt, partner at Carlton Fields, agrees. “How big a class are we talking about? Have the facts changed about the product? Are the key players who developed the product still around? How much money has the client made from the product?” “The first thing to do is learn all the facts to get a sense of the magnitude of the situation and to give the client a proper evaluation,” she says. Moran is a firm believer in knowing what one is getting into. In defending any case, particularly a class action, gather all the relevant facts. This 20-item checklist describes the keys to a successful outcome.ġ. The first step in being prepared is a “class-action checklist” that anticipates legal arguments and trumps them. An astute corporate general counsel must consider a class action as a “when” rather than an “if,” and work toward the goal of defeating class certification. When a prescription drug, medical device, tire, or laptop fails in similar ways for several consumers, a company may face a class-action lawsuit. In today’s legal environment, new products and services get tested in courtrooms as often as in living rooms. Everyone is looking to the general counsel to save the day. With the product under attack, the entire company is on the defensive, fighting for its life. Company stock is likely to take a hit before the close of the market and may be down for weeks or months. Already, the media may have wind of the story, and the CEO and other top executives will soon be barraged with requests for interviews and comments. When a lawsuit crosses a general counsel’s desk, two words stand out more than any other: “class action.” The company faces a lawsuit from not just one person, but from hundreds, perhaps thousands or more.
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