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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

  • work Practice Area

    Class Action and Other Litigation

Date & Time
  • event Date

    Wednesday, October 28, 2020

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

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.

Faculty

Livia M. Kiser
Partner
King & Spalding LLP

Ms. Kiser, a member of the federal trial bar, defends companies in high-stakes civil disputes arising from dangerous or toxic products or substances, consumer fraud, false advertising, breach of warranty, privacy violations, unfair competition and other torts. A seasoned and vigorous advocate both in and outside of the courtroom, her innovative approaches to complex legal questions have resulted in the development of new law favorable to her clients and entire industries.

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Christopher Chorba
Partner
Gibson, Dunn & Crutcher LLP

Mr. Chorba has had substantial experience litigating a broad range of complex commercial matters at the trial and appellate level in California and throughout the country, with an emphasis on claims involving California’s Unfair Competition and False Advertising Laws (Business & Professions Code § 17200 and § 17500), the Consumers Legal Remedies Act (California Civil Code § 1750 et seq.), the Lanham Act, and the Class Action Fairness Act of 2005. His litigation and counseling experience includes work for companies in the automotive, consumer products, entertainment, financial services, food and beverage, social media, technology, telecommunications, insurance, health care, retail, and utility industries.

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Description

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.

Outline

  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

Benefits

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?