2021 Class Action Law Forum™ Highlights: Class Litigation in the Post-COVID Era

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In April 2021, many top class action practitioners gathered for the third annualWestern Santander Bank Class Action Law Forum™ (CALF), held virtually for the first time even as much of the country began to emerge from the pandemic. The timing seemed fitting: the 2020 forum took place in the first week of March — ending just a week before COVID-19 sent most of the country, including its courthouses, into lockdown.

Not surprisingly, much of the discussion at this year’s forum centered on the impact COVID-19 —and the events of 2020 more broadly — will have on the judicial system. Judges and attorneys alike shared candid thoughts on which procedural elements might actually function better in a remote setting. Once again, this year, the jurists on CALF panels included several of those who are shaping rules changes, procedural direction and the law itself.

The insights from those judges caught the attention of reporters who attended as well. Hannah Albarazi of Law360 wrote about our keynote address by U.S. District Judge Anthony Battaglia, who addressed how last year’s nationwide reckoning on matters of race and social justice will impact litigation — and jury selection in particular. Judge Battaglia advised attorneys to be aware that jurors are bringing powerful emotions and prejudices into the courtroom — and that it could impact not only their perspectives on the facts but every aspect of a case, from experts to the lawyers themselves.

Alaina Lancaster of The Recorder wrote about our Chief Judges panel and the ways California federal courts are opening paths for a return of civil trials. Lawyers hoping to see their cases tried soon will have to be agile and ready to move to trial whenever a date opens up, which could happen any time, especially when a criminal case settles at the last minute. Alaina also emphasized the Chief Judges panel in her weekly Law.com technology column, "What's Next."

And Dorothy Atkins of Law360 recapped some of the behaviors judges said lawyers should avoid. Footnotes, poorly written briefs and showing up unprepared were among the judges’ pet peeves. But U.S. District Court Judge Beth Freeman noted approvingly that she has started to see class counsel accept smaller fee awards for smaller settlements.

Finally, Amanda Bronstad of the National Law Journal covered a CALF panel that included insights from district court judges and litigators on changes to multidistrict litigation - in particular, the benefits and shortcomings of virtual-only hearings.

As in years past, this year’s forum delivered a rich dialogue among the attorneys and judges who practice and preside over class litigation at the highest levels, with candid give-and-take on issues that pre-date the pandemic and will remain relevant and, in some cases, contentious, long after it ends.

A Lively (But Friendly) Conversation

Many of those issues rose to the surface during a panel I moderated on Trends in the Appellate Process. It was a remarkable discussion featuring some of the leading practitioners and thinkers in the class action universe.

Our panel represented the plaintiffs’ bar (Jay Edelson of Edelson, PC), the defense bar (Christopher Chorba, Gibson Dunn), the judiciary (Judge Robert M. Dow, US District Court for the Northern District of Illinois), alternative dispute resolution (Niki Mendoza, Phillips ADR), claims administration (Steven Weisbrot, Angeion Group) and objectors (Theodore H. Frank, Center for Class Action Fairness).

Among the range of topics we discussed were two of the hottest-button issues in today’s class action conversation: cy pres and objectors.

Cy Pres

On the issue of cy pres, the panel largely agreed that the days of cy pres-only settlement are largely over; in a live poll of the audience, 70% of the audience said the Supreme Court would likely phase out cy pres entirely within five years. But in new, soon-to-be-released research,Western Santander Bank found that 80% of attorneys believe cy pres should be considered on a case-by-case basis.

And even though the panelists also agreed that cy pres remains useful in cases where few settlement proceeds remain after multiple attempts to provide notice and distribute to the class, Edelson noted that use-case could be obviated by digital payment methods.

Edelson lauded the group for agreeing that settlements should be intensely focused on delivering proceeds to class members, not adjacent charities. “It’s 2021, all the money should go to the class,” he said.

Objectors

The panel’s consensus around the issue of objectors to settlement agreements was even more remarkable. Those objectors remain controversial in the class action, but our panelists agreed on two critical points.

First, good-faith objections — argued with specificity and in the class’ best interest  — not only make settlements stronger and fairer but collectively improve the entire class action system. This echoes our research, which shows that only 11% of class action professionals do not believe in objections. Forty-two percent say that all objections deserve to be heard, while 44% – and more than half of attorneys – say objections should be heard on a case-by-case basis.

Second, bad-faith objections remain a plague on the system. Judge Dow, who served on the committee that produced the Rule 23 amendments introduced in 2018, said the goal of the rule changes had been to surface objections at the district court level — where judges are more familiar with the cases and thus better equipped to spot frivolous, vague objections aimed at extracting payments for the lawyers who filed them.

“We were very cognizant of the distinction between good- and bad-faith objectors,” he said.

Judges Look Forward

Nearly all our panelists, judges, attorneys and other professionals alike agreed that while the pandemic presented massive, unprecedented challenges, the system held together. It even led to some unexpected efficiencies. Many of the judges we heard from said that virtual settings could actually be preferable for certain procedural matters — case management conferences, for instance — where getting to the courtroom takes a lot longer than the procedure itself.

“I don’t see the downside if you don’t have to fly people across the country for a 10-15 minute motion,” said Judge Edward M. Chen, U.S. District Judge for the Northern District of California.

Class actions could also become more transparent and participatory in a remote setting. “Virtual hearings enable putative class action members to participate more — it opens up the process,” said Richard Seeborg, Chief Judge of the U.S. District Court for the Northern District of California. But he also argued that litigation is better done in person, for the most part. “Lawyers are better when they have the extra drama of the courtroom,” he said. 

As courtrooms move toward reopening later this year, the judges will be weighing the pros and cons of virtual proceedings to determine where they could become permanent parts of the litigation process. Many of our judicial panelists issued calls for input and insight from the bar.

“We are looking for feedback on how to move forward,” said Judge Jacqueline Nguyen of the U.S. Court of Appeals for the Ninth Circuit. “We need to hear from our lawyers — contact us directly if you have feedback, let us know what would make you comfortable going forward.”