From the Experts: Fighting Back Against Statutory Penalty Class Actions, Part ...
22.05.12
(2009).&Nbsp; Companies faced with such litigation often find themselves pressured into extortionate settlements.
These lawsuits are terribly unfair. If your child were to ask you why your company should win a statutory penalty class action, you would probably say “we weren’t mean, we didn’t hurt anyone, and the people who file these lawsuits are selfish.” Happily, in this child-like response, you may find key elements of a successful defense. Statutory penalty class actions often present few “individual issues,” but you can – and should – focus on other dispositive considerations, particularly the “adequacy” of your adversaries. You may find a good – and fun - story to tell.
In this two part article, we describe how you can turn the “adequacy” requirement of Rule 23(a)(4) to good purpose. First we focus on the class representative and class counsel, looking at how the social and legal phenomenon of “gotcha” class actions lend themselves to circumstances that can undermine the adequacy of plaintiffs and their lawyer. In part two, we focus on how the pursuit of these claims may put claimants and their counsel in conflict with the interests of the broader class they purport to represent.
Source: JD Supra (press release)