Pleading, Defending and Settling Class Actions: Emerging Trends

Outline

1. New pleading strategies
   1. Suing in fifty (or multiple) states under fifty (or multiple) state’s substantive laws
   2. Suing for multiple states in one court under a single state’s substantive law
   3. Exemplar-state class actions
   4. Certifying exemplar-state claims when involving similar or different substantive laws
   5. Respecting class-membership, standing, subject-matter-jurisdiction, and adequacy concerns as these concerns relate to needing class representatives for every state and claim alleged
   6. Avoiding CAFA by pleading damages and/or injunctive relief less than $5 million
2. Defense strategies
   1. Dealing with multiple complaints in MDL - opposing or accepting consolidation and transfer
   2. Challenging the application of a single state’s substantive law under Shutts and the original or eventual forum jurisdiction’s choice-of-law jurisprudence
   3. Accepting the exemplar approach by proposing test jurisdictions for class certification 
   4. Attacking the exemplar approach by challenging class certification of every exemplar state
   5. Opposing class certification by arguing predominance of individual legal issues where plaintiffs allege multiple state-law subclasses whether under exemplar approach or not
3. Mutually beneficial settlement strategies
   1. Settling globally when plaintiffs sue exemplar states
   2. The appropriateness of a single or comparable states’ laws substantive, class-wide application under Shutts while not offending due process
   3. Broadening the class definition when alleging exemplar states to provide the required global coverage
   4. Attorney general notice concerns under CAFA

Benefits

The panel will review these and other key questions:

• What are the new pleading strategies plaintiffs' counsel have employed to embrace or avoid CAFA?
• What are the prevailing defense counsel perspectives on the continued viability of multistate class actions post-CAFA?
• What settlement strategies have proven successful since CAFA's passage?