Effectively responding to class litigation doesn’t necessarily mean simply preparing an answer or perfunctory motion to dismiss, diving headlong into class discovery, investing in full-fledged combat on the merits of the claims, and planning for a fully contested class certification hearing. That is usually the most expensive option, but not always the best one. Even when it is the best option, important strategy choices on the front end can directly affect the outcome on the back end. For example, serious motions to dismiss can whittle down the claims at issue or the scope of the proposed class to more manageable levels, or maneuver the plaintiff into making allegations that avoid dismissal but create obstacles to certification. Resisting removal temptations under the Class Action Fairness Act, Pub L. No. 109-2, 119 Stat. 4 (“CAFA”), may set up an interlocutory appeal as of right on class certification under the applicable state court class action regime (as opposed to the discretionary review afforded under Federal Rule of Civil Procedure 23(f)), keep a class settlement based upon coupon relief in play under a more lenient state court approval standard, and avoid the CAFA’s expanded notice requirements (which in some cases invite regulator comment or scrutiny).
Your strategy in defending any class action, or any set of class actions, should be custom-made for that particular litigation, informed by a careful study of all available early strategy choices and potential end games. Locating the earliest and most cost effective exit in a given class action or set of class actions requires serious early examination of all the available options in each case, not reliance on a “one size fits all” approach.
Read the complete paper, “Finding the Earliest and Least Expensive Exit From Financial Services Class Actions.”