Rule 23(c)(5) Subclasses: Certification, Due Process, Adequate Representation, and Settlement
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
- work Practice Area
Class Action and Other Litigation
- event Date
Thursday, February 23, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
-
This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss when Rule 23 permits the creation and certification of subclasses, their strategic advantages to both plaintiffs and defendants, and the potential pitfalls that await those who fail to understand them. The panel will discuss the types of problems that subclasses can and cannot resolve, the types of cases and issues where they most often appear, how to define them, and the unique questions and issues subclasses raise with respect to predominance, due process, certification, and settlement.
Since 1998, Mr. Francis has focused his practice in consumer protection litigation, with a particular concentration in fair credit reporting, fair debt collection practices and consumer class actions. He has been certified to serve as class counsel in over 35 consumer class actions and has served as counsel the some of the largest FCRA settlements in history. Mr. Francis is a frequent speaker for consumer financial services litigation CLE programs.
Ms. Simplicio is a Partner at Tycko & Zavareei LLP and has devoted her career to representing victims of illegal debt collection practices, false advertising, and corporate fraud. Over the last two years, she has secured a number of victories on behalf of homeowners as a result of her work representing plaintiffs in over a dozen cases filed around the country against mortgage loan servicers over fees charged in violation of the Fair Debt Collection Practices Act and related state statutes. Ms. Simplicio has made important changes to the mortgage servicing industry, securing five settlements that have included not just refunds to affected borrowers but also agreements to stop charging these fees.
Mr. Ackerman chairs the firm's Class Action Team and has a national class action defense practice. He has been involved in defending more than 60 class actions in numerous jurisdictions and in many of those cases prevailed on a dispositive motion. Mr. Ackerman has defended putative class action cases involving insurance and financial services, products liability, data breaches, healthcare, consumer contracts, and securities. Mr. Ackerman has chaired the Class Action Special Litigation Group of the Commercial Litigation Committee of the DRI, and is currently Vice Chair of the Class Action and Multidistrict Section of the Federation of Defense and Corporate Counsel.
Plaintiffs can define and propose subclasses to address unique issues or to resolve potential intra-class conflicts of interest. Counsel opposing certification will want to emphasize the intra-class conflict as reason to deny certification and show how subclasses render class treatment unmanageable.
Due process requires adequacy of representation for all class members, including subclasses. Circuit courts have overturned settlements if they see conflicts of interest among subclasses and the failure of class counsel to ensure independent representation of subclasses.
Listen as this experienced panel of class action litigators guides both plaintiff and defense counsel through the effective use of subclasses to resolve the case.
- Statutory basis of subclasses
- Distinguishing issues that do and do not require subclasses
- Practical issues with subclasses
- Notice
- Claim forms, attestation, documentation, etc.
- Fraudulent claims
- Subclass representative adequacy
- Uncashed checks
- Objections and objectors
- Defense strategies and due process concerns
The panel will review these and other key issues:
- What are the tell-tale signs that a subclass is needed or required?
- When can subclasses be created?
- Can there be subclasses within subclasses or is predominance destroyed?
- What are the due process concerns with subclasses and subclass representation?
- What should defense counsel consider when deciding whether to oppose certification of subclasses?
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