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Drafting Blow-Up Provisions in Class Action Settlement Agreements

Recording of a 90-minute CLE webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Wednesday, October 28, 2020

Recorded event now available

or call 1-800-926-7926

This CLE course will discuss how to structure and then draft effective blow-up terms, best practices for maintaining their confidentiality if that would be of interest, and what types of terms are more likely to be deemed material to assess the settlement, and therefore, more likely to be disclosed.


Most class action settlements include a "blow-up" provision which permits defendants to terminate or alter settlement if the estimated exposure from litigation reaches a certain level. The structure and wording of blow-up terms, however, can vary depending on the type of settlement and goals it is trying to accomplish.

Defendants sometimes do not want class members privy to blow-up provisions, fearing that this knowledge will embolden class members to threaten to exclude themselves from settlement and provide them with excessive leverage. Thus, it is not unusual for courts to permit filing blow-out terms under seal or allow them to be designated confidential for "Attorneys Eyes Only."

Listen as this experienced panel of class action attorneys discusses the art and science of structuring and then drafting blow-up provisions in different types of class actions, the advantages of confidentiality, and how to stabilize settlement if the blow-up provisions must be disclosed.



  1. Overview of settlement requirements
  2. Types of "blow-up" provisions and types of cases in which they appear
    1. Provisions based on percentage or number of opt-outs
    2. Provisions based on number of shares and other formulas
    3. Provisions requiring disgorgement
  3. Drafting pitfalls
  4. Recent cases regarding confidentiality


The panel will review these and other key issues:

  • What purposes do blow-up provisions serve?
  • What are typical blow-up provisions?
  • Are certain blow-up provisions unethical?
  • Must blow-up provisions always be disclosed to the court?


Chorba, Christopher
Christopher Chorba

Gibson, Dunn & Crutcher

Mr. Chorba has had substantial experience litigating a broad range of complex commercial matters at the trial and...  |  Read More

Kiser, Livia
Livia M. (Liv) Kiser

King & Spalding

Ms. Kiser, a member of the federal trial bar, defends companies in high-stakes civil disputes arising from dangerous or...  |  Read More

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