2022 Class Action Law Forum Highlights: Driving Efficiency in the Post-COVID Era

In March 2022, dozens of class action and mass tort practicioners returned to the University of San Diego School of Law, together with virtual attendees, forWestern Santander Bank’s Fourth Annual Class Action Law Forum™ (CALF). Reflecting the event’s hybrid nature, much of the discussions centered around COVID-era protocols and procedures the industry should keep or discard to increase efficiency, along with insights into how class actions and mass torts have changed in recent years.

These insights caught the attention of several legal industry journalists. Ross Todd of AmLaw’s Litigation Daily covered the 9th Circuit roundtable, where two judges who heard an appeal in a class action lawsuit against the TransUnion credit reporting agency discussed the Supreme Court’s subsequent 2021 decision reversing that appellate ruling. The decision has major implications for class actions moving forward, as it will now be more difficult for plaintiffs to argue they suffered concrete harm over an alleged injury. In a second article, Todd wrote about the chief judges’ roundtable, noting that the judges, in a discussion on proposed settlements, encouraged lawyers (and plaintiffs’ attorneys in particular) to engage with the substance of an objection instead of going after the objector when responding to challenges.  

Law360’s Hannah Albarazi also wrote about the chief judges’ panel, focusing on the part of the session that covered the urgent need for additional federal judges in many districts, especially the Eastern District of California. There are two pending bills in Congress that could create dozens of new federal judgeships and the chief judges urged legislators to pass them as soon as possible. 

In a final piece about the chief judges’ roundtable, Alaina Lancaster of The Recorder shared the advice judges gave to lawyers on speeding up class actions: appear in court prepared, and meet with opposing counsel early on in the process to develop a joint plan for the class action. The judges also warned lawyers they could expect more judicial interest in post-distribution accounting, an area to which the courts had not previously paid close attention.

Efficiency in a Post-COVID World

Creating efficiences was a major theme of this year’s event. The rise of remote proceedings forced the legal industry to accelerate its adoption of technology, and has sparked greater interest in finding ways to streamline litigation. Many panel participants, for instance, cited the need to cut down on the cost of litigation by speeding up trials where possible. 

Panelists also discussed ways in which attorneys could create efficiencies for judges in preliminary settlement approval proposals. For instance, Judge Haywood Gilliam Jr., of the U.S. District Court for the Northern District of California, advised lawyers against holding some elements back for later settlement proposals, and encouraged them to include as much detail as possible to convince the judge to support their settlement proposal. In an ideal world, he noted, there would only be one round of pleadings – judges want lawyers to draft their proposals with an eye towards moving through pleadings as efficiently as possible.

The Northern District of California’s guidelines for what information lawyers should include in preliminary settlement proposals were also a popular topic of discussion, with several  participants in other districts saying they are using or planning to use those guidelines. 

In several panels, judges discussed which COVID-era procedures and protocols they plan to keep and which they would like to see revert to pre-pandemic approaches. For instance, there was near-unanimous agreement that jury trials must be conducted in person, while bench trials can continue proceeding virtually. Magistrate Judge Mitchell Dembin of the U.S. District Court for the Southern District of California said the jury needs to spend time in person together to develop the “jury personality” that impacts how lawyers develop strategies for opening statements, cross examinations and closing arguments.

Judges also agreed on continuing the use of virtual pre-trial motions and hearings. Doing so can keep cases moving by reducing the need to coordinate travel for counsel, witnesses and experts, and could help alleviate backlogs at many courthouses. Reduced travel could cut the cost of litigation for clients and allow for greater ease of scheduling on motion hearings, depositions, and other proceedings as well. 

Importance of Building Relationships with Opposing Counsel

Several judges and attorneys from both sides of the bar emphasized the importance of lawyers building rapport with opposing counsel during complex litigation. Especially when conducting proceedings remotely, it is critical that opposing counsel “meet and confer” early on to establish clear protocols for the case. Doing so at the outset can prevent time-consuming motions to dismiss, the need for hundreds of pages of exhibits, and unnecessary disputes later on during trial.

Judge Jacqueline Corley of the U.S. District Court for the Northern District of California said during the panel on “Discovery in the Age of COVID” that the remote environment has introduced civility back into proceedings; Judge Dembin agreed, saying, “People are trying to out-reasonable each other.” 

A defense attorney in the “Expert Damages” panel summed it up this way: “It’s in our clients’ best interests that we be civil and transparent and cooperate.”

Judiciary’s Role in Promoting Diversity and Associate Development

Many practicioners noted the growing role that the judiciary has been playing in promoting diversity in the complex litigation space, particularly within multi-district litigations (MDLs). When plaintiffs’s lawyers are forming leadership committees for an MDL, judges will often request that members of the leadership team be diverse in a number of ways – including race, gender, age and experience level. Encouraging younger and less experienced lawyers to join leadership teams can be especially impactful by giving young, racially diverse practicioners additional experience they need to advance in their careers.

Associate development is another area in which judges have been making an impact. Erin Bosman, partner and co-chair of the Class Action & Mass Torts group at Morrison & Foerster and CALF steering committee member, said that defense counsel particularly appreciates it when judges request that associates attend or even argue motions. When judges do so, it provides a wonderful opportunity for associates to get the type of on-their-feet experience that can be hard to come by on large, complex matters. Bosman also said that the remote environment allows for greater associate attendance and thus more learning opportunities. 

Judge Dembin shared that he “wants [associates] to feel seen” and often speaks directly to these attorneys on remote proceedings, giving them a chance to ask questions or add any comments. 

Increased Use of Data Analytics and Technology

The evolution of technology and data analytics was another major topic of discussion during the three days of CALF. 

Several panels highlighted the sometimes contentious debates among counsel over plaintiff fact sheets and how the data from those forms are collected, stored and analyzed. Meanwhile, claims administrators who assist in the screening and due diligence process argued for better data collection processes, encouraging plaintiffs’ lawyers to better account for consumer behaviors. For example, instead of using handwritten intake forms that can result in a sea of unstructured data, lawyers should consider using online forms plaintiffs can access via mobile phones to input their information in a uniform manner. 

In another instance, one administrator shared experiences of using analyses of plaintiffs’ data to identify ideal bellwether cases for both plaintiffs’ lawyers and defense counsel. 

Fraud detection and prevention was another major topic of discussion. Administrators said they’re using new technology platforms to weed out fradulant claims by detecting hundreds of claims that were filed from the same IP address, or by developing databases to identify individuals who repeatedly file claims.  

Digital Payments and Cy Pres 

Several panels also brought up the subject of digital payments. In the panel moderated by Francesca Castagnola, Senior Managing Director ofWestern Santander Bank’s Settlement Services Group, participants discussed the results of the bank's latest research project, which explored sentiments around offering digital payment options to class members. Over half of the survey respondents said that digital payment options are offered in most class action cases in which they are involved. While the panelists agreed that such payments would be a preferred option for class members in the near future, some indicated that the demographics of the class should inform distribution methods. 

The panel also discussed the role of cy pres in class actions to distribute unclaimed settlement funds to non-profit organizations. Like at last year’s forum, most panelists seemed skeptical about cy pres-only settlements, but agreed that when there is a minimal amount of settlement money left over following thorough efforts to distribute settlement funds to class members, cy pres is a route worth considering.

Ellen Gusikoff Stewart, partner at Robbins Geller Rudman & Dowd LLP and CALF steering committee member, said she is “always careful about how we phrase [disussions about] residuals,” because of objectors’ criticisms of [the] distribution strategies. Instead, Gusikoff Stewart refers to cy pres donations of unclaimed settlement funds as “de minimis residual distributions,” which resonates better with objectors and the judiciary, and more accurately reflects what funds remain following distribution efforts.  

Judge Robert M. Dow of the U.S. District Court for the Northern District of Illinois said that though cy pres can be “scary” for district judges, “most recognize there will be a point where another distribution doesn’t make sense.”