Q&A: Managing and resolving class action disputes

October 2013 | SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

FW moderates a discussion on managing and resolving class action disputes between Cari K. Dawson at Alston & Bird, Ross McInnes at Clayton Utz, Steven F. Napolitano at Skadden, Arps, Slate, Meagher & Flom, Wayne J. Lee at Stone Pigman Walther Wittmann , and Antonio Yanez, Jr at Willkie Farr & Gallagher.

FW: Could you provide us with an update on recent trends and developments in class actions brought against corporate defendants? Are you seeing any recurring themes in case types?

Dawson: Corporate defendants continue to be the target of class action litigation across industries and types of claims. One particular trend is an increase in class action filings in so-called ‘plaintiff-friendly’ jurisdictions, namely California, New Jersey and South Florida. No matter the type of class action – consumer fraud, product liability or employment – these jurisdictions attract plaintiff class action counsel because of the more ‘plaintiff friendly’ statutes and case law in those jurisdictions. Plaintiffs’ counsel will often purposefully file multiple class actions nationwide asserting the same claims against a corporate defendant in order to increase the likelihood that a multidistrict litigation (MDL) will be formed, and the pending actions will be coordinated or consolidated for pretrial proceedings.A recurring case type is so-called ‘no-injury’ product liability and consumer protection class actions. These class actions attempt to make the alleged common conduct of the corporate defendant or the alleged class-wide defect the basis for certification of the class and attempt to side-step the issue of whether all or the overwhelming majority of class members have actually suffered a concrete, particularised injury. Plaintiffs are seeking certification of so-called liability-only class actions or ‘issue classes’ under Rule 23(c)(4) to avoid the more rigorous analysis under Rule 23(b)(3).

McInnes: Since its introduction in 1992, the Australian class action regime has become a key feature of the Australian legal landscape. Barely a day goes by without the press reporting the threat of a new class action. Australia has also made its mark on the class action stage worldwide, with its plaintiff-friendly regime and a thriving class action industry driven by an active litigation funding sector. In Australia, the threshold requirements for commencing a class action are relatively low. We are seeing a number of recent trends and reoccurring themes in the class action landscape in Australia. First, a significant number of class actions that are currently being pursued, or have recently been pursued, are a legacy of the global financial crisis. The large scale and varied loss that occurred during the Global Financial Crisis (GFC) has meant that class actions have been utilised as a vehicle for many investors to pursue their claims and seek to recover some of those losses. Second, product liability, mass tort, pharmaceutical and medical device claims continue to be popular, along with shareholder class actions. It is also worth noting the significant impact that litigation funders are having on Australia’s class action market. Since the High Court’s decision in Campbell’s Cash and Carry Pty v Fostif Pty Ltd (2006) 229 ALR 58 there has been a significant increase in litigation funding companies which, in turn, has increased the number of class actions being pursued.

Napolitano: In the area of mass torts and consumer litigation in the US, class actions have remained relatively consistent in recent years. Companies manufacturing foods and other consumer products have increasingly faced class actions alleging that their product labels – and even product names in some cases – are fraudulent or deceptive. These cases are often brought under state consumer protection acts prohibiting fraudulent and deceptive business practices. As one example, sellers of food and cosmetic products bearing the words ‘natural’ or ‘healthy’ have been named in class actions where their products allegedly contain ‘unnatural’ or genetically modified ingredients. In some of these cases, courts have allowed such claims to proceed past the motion to dismiss stage and have certified classes, and a number of labelling class actions have resulted in settlements.

Lee: At least three trends are worth noting. First, the Class Action Fairness Act is fulfilling its intended purpose of making it easier for complex cases to access federal forums. Second, the US Supreme Court in Wal-Mart Stores, Inc. v. Dukes has reminded litigants that class actions are “an exception to the usual rule that litigation is concluded by and on behalf of the individual named parties”. Certification is proper only if the court is satisfied “after rigorous analysis”, that every requisite for certification is met. Third, arbitration agreements will generally be enforced even if they preclude class actions.

Yanez: In terms of the defence of securities class actions, the most notable recent development is an expected renewed focus by the plaintiffs’ bar on traditional accounting fraud cases – that is, cases alleging that corporate books were cooked – driven by redoubled SEC enforcement efforts. With the onset of the financial crisis, the SEC focused its resources on crisis-related investigations and insider trading inquiries. But, a few months ago, the SEC announced the formation of a Financial Reporting and Audit Task Force dedicated to detecting fraudulent or improper financial reporting. Increased scrutiny by the SEC can be expected to result in more companies identifying financial misstatements which, in turn, can be expected to lead to more securities class actions centred on those misstatements. At the very least, companies sued by the SEC or even entering settlements with the SEC can expect securities class actions to follow.

FW: Have there been any recent high-profile class actions worth noting? What do these cases demonstrate about the current state of how courts consider such class action claims?

McInnes: Two recent class actions are worth noting. First, the Vioxx class action was pursued on behalf of consumers who alleged that they suffered injuries caused by their consumption of the drug Vioxx. The case was significant for a variety of reasons, but in particular it is one of the few class actions which has actually run to trial and had a judgment handed down. The action went all the way to the High Court of Australia, where the Court rejected an application for leave to appeal the decision of the Full Federal Court in favour of Merck Sharpe & Dohme (Australia) Pty Ltd. Second, the Centrocase was a group of shareholder class actions which settled in 2012. The Centro case involved a number of class actions by groups of shareholders who alleged that Centro had engaged in misleading and deceptive conduct based on the failure to provide continuous disclosure to the market of a number of obligations. It is, to date, Australia’s largest class action settlement, at $200m inclusive of costs. The Centro class action was funded by IMF (Australia) Ltd which announced after the settlement that it would generate a profit of about $42m from the claim.

Napolitano: The US Supreme Court has continued to issue important rulings on class action practice. These rulings reverberate in all types of class actions. A key ruling from the Court’s 2012-2013 term was in Comcast Corp. v. Behrend. In Comcast, the Supreme Courtreversed a class action encompassing more than two million current and former Comcast subscribers who alleged violations of federal antitrust laws. The Supreme Court held that the class failed the requirements for certification because the plaintiffs’ damages theory did not fit their theory of liability, and that questions surrounding individual damage calculation “will inevitably overwhelm questions common to the class”. Damages must be proven on a classwide basis. Federal courts in the US have now been applying the Comcast ruling to the facts of individual class action cases.

Lee: The Deepwater Horizon Oil Spill case is a multi-district proceeding that involves a variety of claims including personal injuries, economic damages and even admiralty limitations proceedings. The case has been tried over several months in multiple phases, and impacted putative class claims and individual claims. Prior to any settlement, plaintiffs pursued a hybrid putative class into which individuals were permitted to ‘join’ by filing a one page joinder. Different class settlements were entered for categories of economic claims and for personal injury claims. The economic damages class settlement has run into challenges, because BP contends that the Settlement Claims Administrator has misinterpreted the agreed upon terms of the unlimited settlement fund. The case demonstrates that the courts are prepared to be creative in finding ways to address large damage claims affecting multiple parties and issues.

Yanez: One especially noteworthy securities case in recent years – at least, among those that have resulted in court decisions – was an investor class action against the drug company Amgen. That case went all the way to the US Supreme Court on the issue of when courts should decide certain issues that go both to the propriety of certifying a class and to the merits of the claims being pursued. Without delving into the technical details, the case was about whether one such issue could be decided prior to trial or could only be decided at trial. The Supreme Court held that the issue should be decided at trial and could not be short-circuited through pre-trial practice. The Amgen decision is important for businesses because it potentially extends the life of some class actions that might otherwise have been susceptible to a more prompt resolution. More broadly, it reaffirms the continued viability of class actions as a mechanism for resolving securities claims.

Dawson: The US Supreme Court’s last terms included a number of high-profile class action cases, including, but not limited to American Express Co. v. Italian Colors Rest., Comcast Corporation v. Behrend, and Standard Fire Insurance Co. v. Knowles. In the American Express decision, the Supreme Court held that a class waiver in a mandatory arbitration provision is enforceable even if the costs of litigating a claim individually outstrip the plaintiff’s potential recovery. In the Comcast decision, the Supreme Court made clear that the “rigorous analysis” first called for in General Telephone Co. v. Falcon and reaffirmed in Wal-Mart Stores, Inc. v. Dukes applies to damages issues, even when those issues overlap substantially –or even completely – with the merits. In Standard Fire, the Court held that a named plaintiff in a state class action cannot thwart removal to federal court by stipulating to damages under $5m for himself and for the class that he sought to represent because he cannot legally bind members of the proposed class before the class is certified. These Supreme Court cases demonstrate, first, that the ability to pursue a case as a class action is not a ‘right’, second, that class certification should be scrutinised rigorously, and third, that tactical gamesmanship to avoid otherwise proper federal jurisdictions over class actions will not be tolerated.

FW: By their very nature, class action disputes may involve parties from across the globe. What advice can you give to firms on handling class action disputes which span districts, borders or jurisdictions?

Napolitano: Class actions that involve parties from around the globe pose a number of significant considerations. It is essential that counsel in different jurisdictions carefully coordinate in all stages of cross-border litigation. Positions taken in different jurisdictions should be consistent where possible. If inconsistent positions are advanced in different courts, a coordinated defence may be negatively impacted. To the extent different legal standards exist on discovery and class certification, those differences must be understood early in the course of litigation. For example, the rules of discovery vary greatly across legal systems. Many countries now recognise enhanced privacy rights that may become implicated in litigation. Documents routinely produced in cases in the US may not be freely disclosed under the laws of other countries. Attention must also be paid to the timing of how quickly cases may be expected to proceed to a certification ruling in different jurisdictions.

Lee: Parties should understand the practices and procedures employed in the courts and the experience of the presiding judges. When claims arise from multiple jurisdictions, try to determine the jurisdiction with the law most favourable to the client, or the courts with the most experience managing complex litigation, and try to push the proceedings there. Understand the Manual for Complex Litigation and Rules of Procedure of the US Judicial Panel on Multidistrict Litigation and take advantage of the procedures tailored for complex cases. If there are multiple parties and counsel, ask the court to establish steering committees to limit the number of counsel that will speak for the respective groups and assign responsibility for coordination. Evaluate your client’s exposure and, if warranted, seek a leadership role on steering committees for similarly situated parties. Ask the court to coordinate schedules and discovery efforts. Some federal and state courts may even conduct joint status conferences, although some courts may be outside the state.

Yanez: Companies facing class actions that span jurisdictions should consider carefully and early in the process differences in the law applicable in the various jurisdictions, the pace the lawsuits are likely to take in those jurisdictions, differences in the discovery available, differences in the class action mechanisms, and related issues. The reason is that careful coordination across jurisdictions is essential if a company is to navigate multi-jurisdictional class action litigation successfully and as efficiently as possible. To give just a couple of examples, the law in a jurisdiction in which cases move more quickly is likely to take on prominence even if relatively few class members reside in that jurisdiction. And differences in the type of discovery available – or permissible – in different jurisdictions can be critical to devising an efficient approach to discovery. A company would not, for instance, want to collect documents narrowly because only limited discovery is permitted in one jurisdiction only to find that it needs to go back to the same sources to collect additional materials needed to comply with broader discovery obligations elsewhere.

Dawson: The best advice I can give is to have a national or international coordinating counsel. With disputes spanning districts, borders or jurisdictions, it will be necessary for your legal team to work together in a coordinated and complementary fashion to protect the corporate client. A corporate defendant does not want inconsistent positions being taken in different matters, and it needs to avoid the actions of counsel in one matter undermining a position it needs to take in a different, but related matter. Communication, coordination and collaboration are vitally important. The coordinating counsel needs to work with the inside legal counsel to thoroughly synthesise mission-critical factual and legal issues, and effectively execute a carefully crafted strategic plan. In addition, because corporate defendants sued in class action litigation will often face related regulatory proceedings or government investigations, it also important to have a multi-disciplinary approach to defending the corporation to ensure that the corporation is taking steps to mitigate its risks in potential related matters.

McInnes: Coordination of international legal strategy is extremely important when dealing with class actions that span different jurisdictions. It is important to be aware of the rules, procedures and the law in different jurisdictions to ensure that steps taken in one jurisdiction do not jeopardise the position in other jurisdictions.

FW: A number of complex issues need to be addressed in relation to e-discovery, disclosure and information management in class action disputes. What systems and processes should firms have in place to ease the burden of data management in these cases?

Lee: Firms should have attorneys, staff and supporting consultants who are familiar with the current law and obligations for e-discovery and information management. When the threat of litigation materialises, steps should promptly be taken to issue and diligently enforce document hold orders. Counsel should promptly meet with the client to obtain an understanding of the client’s systems to evaluate not only the best means of ensuring the preservation of records, but also to assess the burdens and processes for searching and retrieving discoverable information. Those early meetings should also address confidential information and prospective limitations on disclosure. The firms should consider early meetings with all parties –or if too many parties, with a credibly large enough group – to settle on e-discovery protocols and perhaps agree on search terms or methodologies. Consider a joint database of produced documents which all parties – anywhere – can access subject to court approved confidentiality orders and procedures.

Yanez: There are a number of IT solutions available to ease the burden of collecting and producing data that might be considered by companies particularly likely to be the targets of class action litigation. But I think a mechanism that many companies can consider is assigning to an appropriate employee – or group of employees – the task of developing and maintaining a clear understanding of where and how data is maintained across the company’s offices around the world, how to retrieve that data, and what data may be retrieved consistent with local legal requirements. Having a central source for that information will ease the burden meaningfully for any company faced with class action litigation.

Dawson: A misstep in discovery can prove costly to a corporate defendant through the imposition of sanctions and the striking of pleadings. Lawyers representing those corporate defendants are also at risk. A corporate defendant can have a winning case, but ultimately be forced to settle if e-discovery is not well managed. First and foremost, law firms should have a dedicated team of professionals with expertise in e-discovery. This team must not only know the relevant federal rules and the Sedona Principles for Electronic Document Production, but also be expert in the technical issues associated with e-discovery, including a client’s IT infrastructure and the different production formats and issues associated with metadata and native production. Second, the team should have best practices to recommend to corporate defendants, including but not limited to document hold memoranda, predictive coding and other analytics, password protected client extranets to serve as a document repository, e-discovery vendors, protocol for protection of privileged information, and document review systems.

McInnes: In a class action, the majority of the burden of discovery falls on the defendant or defendants. Relatively speaking, the plaintiffs often have very few documents. This is particularly true in product liability and personal injury cases. Such cases often involve proceedings in various different international jurisdictions. Some of the documents required to be disclosed will be common to all jurisdictions and some specific to each individual jurisdiction. For example, a pharmaceutical company with a US parent and a local subsidiary may well need to produce documents relating to the research and development done in the US in multiple jurisdictions around the world. The local subsidiary may need to locate and produce regulatory files or marketing material specific to its location. As a result, not only do systems and processes need to be put in place that ensure that a comprehensive international effort is made to properly identify, collect, analyse and produce relevant material, but that that effort is coordinated on a global scale. This needs to be done to ensure that the cost is minimised and duplication of effort is avoided. Document review conducted in a central location needs to consider any differences in disclosure requirements and rules. Often the technical specifications for producing documents in an electronic form are different. The differences need to be anticipated and systems put in place to minimise their impact.

Napolitano: To minimise the often significant burdens of discovery a company must have a well-organised document retention program in place before litigation hits. A document retention program should specify how long documents are kept in the ordinary course of business. However, once litigation is filed or reasonably anticipated, a document hold must be sent to employees who might have relevant documents. All potentially relevant information, including emails and other electronic documents, must be preserved once litigation rears its head. A company should have procedures in place for the timely preparation and distribution of a document hold, as well as the means to stop any regularly scheduled destruction of electronic and paper records. Typically a form hold can be prepared in advance and modified to fit the facts of a particular litigation. Any unreasonable delay in issuing a hold can have significantly negative litigation ramifications, including an award of sanctions.

FW: Disputes often bring a host of technical issues that require the involvement of specialised advisers. Do you recommend the use of third party class action administrators? In what ways can they streamline the process? What disadvantages do you see?

Dawson: I do recommend the use of third parties to assist corporate defendants in areas such as class action notice and claims administration. They can streamline the process in a number of ways. For example, claims administrators have expertise in developing notice plans to ensure that notice of a class action settlement is provided in a manner that comports with due process and will be approved by the court in determining whether a class settlement is fair, reasonable and adequate. Claims administrators have expertise in the processing of claim forms and payment of claims. Once the decision is made to settle a class action, a corporate defendant may understandably want to put the matter behind it and stop devoting its resources, including its personnel, to the litigation. With a claims administrator, the corporation can focus on its core business functions and not be burdened with administering claims. One drawback for certain corporate clients is that the claims administrator is interfacing directly with their customers or employees. Many corporations prefer to have complete control over communications with their customers and employees by utilising their own personnel.

Napolitano: In the US, the key issue in class actions is whether the court will allow the case to proceed as a class action – that is, whether a class will be certified. In making that determination, US courts are increasingly interested in learning how the case would be tried before a jury on a class basis. As a result, the use of substantive expert witnesses to explain that point is increasingly common. If a defendant decides to settle a matter on a class basis, we do recommend the use of third party class action administrators. Working closely with counsel, these administrators can do the ‘nuts and bolts’ of settlement and help manage the often substantial costs of a settlement program. Third-party administrators can help design and implement a notice program, process claims and inquiries from class members, and issue payments to class members as warranted. While we do not see any disadvantages to using such administrators, the key decisions on settlement must be driven by knowledgeable legal counsel.

Lee: When the putative class numbers in thousands and above, retaining class action administration is reasonable if not essential. Assisting in the issuance of notices and tracking contacts, inquiries and claim form responses are tasks that class action administrators can handle efficiently subject to attorney review. From the defence side, the work of such administrators can also help to identify characteristics that might be used to demonstrate the absence of commonality required for class certification. Timing can be a factor, however, if databases are created too early and without sufficient planning, the benefit can be lost by costly re-work. Moreover, depending upon the case progress, the database may not be needed. Accordingly, planning is important.

FW: Often, the best option for parties is to settle the dispute and avoid protracted litigation. At what point should parties consider settlement, and what considerations should be made when drafting a settlement agreement?

McInnes: The majority of class actions in Australia settle before trial. It means that those facing a class action will always consider the pros and cons of early resolution of claims. However, in Australia, an important consideration in the settlement of class actions is that the settlement needs to be approved by the Court. In order for a settlement to be approved, the Court must consider that the terms of the settlement are fair and reasonable not only for the group as a whole but also between group members. There are a number of recent cases that demonstrate that the Court takes its duty to protect the rights of unrepresented group members seriously and will have an active role in the settlement of class actions.

Napolitano: Before settling a class action, a defendant must weigh the options very carefully. Proposed settlements must be approved by US courts and are usually challenged. Courts are taking such challenges very seriously, and there has been a dramatic increase in the number of class settlements that have been rejected. When settlements are rejected, the defendant is sometimes forced to spend substantially more money than originally anticipated to get the matter resolved. Further, defendants need to be careful about appearing to be willing to settle class actions too readily, as such an image may make the defendant a target for more cases. Although the analysis will vary from case to case, a defendant should seriously consider settlement only after it has tried to use motions to dismiss, motions to strike class allegations, and other means available to defeat the class action. Finally, a class action can sometimes be resolved by settlements with the named plaintiffs only where no class has been certified.

Lee: As a general rule, defendants should not settle or entertain settlement until they know which defences are viable and which are not, understand the totality of the class and potential claims and damages and, if unlimited, what the settlement will likely cost, and they can define the settlement class with enough certainty that it can pass the test for certification and achieve res judicata effect that will foreclose exposure from a sufficient number of claimants to justify the settlement. Bellwether trials can be a helpful tool to help establish settlement benchmarks. If you cannot achieve all three objectives, especially, the third – res judicata – then you should consider more piecemeal settlements and possibly forego class-wide resolution.

Yanez: Defendants in class action litigation are well-advised to consider settlement at all stages of a case from service of the complaint through the commencement of trial. That’s not to say that companies with meritorious defences should settle or that defendants should seek to initiate settlement discussions even when faced with challenging cases. But the relative costs and benefits of settlement should be weighed throughout the life of a lawsuit in order to help defendants measure the value of the lawsuit compared with the resources needed to defend against it. With respect to drafting the settlement agreement itself, principal concerns for defendants include the scope of the releases in the agreement and the extent to which similar suits can be brought notwithstanding the settlement. Releases should be as broad as possible, covering anything touching on the claims asserted in the lawsuit. And there should exist a mechanism for defendants to terminate the settlement if it stops making economic sense because too few plaintiffs participate.

Dawson: The decision to settle a class action is unique to each specific case and client. Settlement may be pursued at the outset of a case to avoid the cost of protracted litigation; in the middle of a case while potentially dispositive motions are pending and both parties are facing uncertainty; or at the class certification stage, when an order has been entered granting certification of a class. In the settlement agreement itself, the corporate defendant should focus on the scope of the claims released. In addition, the corporate defendant will need to protect against class members opting out of the settlement by including a blow-up provision, which enables the defendant to terminate the agreement if there are a significant number of opt-outs, and take-down provisions, which are designed to reduce the aggregate monetary award to be distributed to the class to account for opt-outs. Because settlement funds are often not all claimed by members of the settlement class, the settlement agreement should include a provision that controls the distribution of these unclaimed funds. Possibilities that the parties can consider include distribution of the unclaimed amount to the class members who did submit claims; reverter or recapture of the funds by the defendant; or distribution to a charity or other organisation through cy-près.

FW: Going forward, what are your predictions for class action disputes in your area of practice? Do you expect to see an increase in such disputes, and what types of cases are likely to be prevalent?

Yanez: The number of securities class action lawsuits in the US has fluctuated over the years, but always within a relatively stable range. I would expect that to continue going forward. As to the types of class actions, I expect a resurgence of claims alleging accounting fraud for the reasons I’ve already mentioned.

McInnes: As a general observation, because of the high degree of involvement of litigation funders in class actions –and the considerable number of litigation funding companies that have emerged over the last five to 10 years – the class action landscape will continue to be a focal point for the Australian legal system in the coming years. Although the GFC was a significant driver for the commencement of a number of class actions in Australia over the last five years, the jurisprudence is still developing and class actions are yet to reach their full potential in Australia. As the class actions regime in Australia continues to mature, it is likely that a range of new and challenging issues will emerge. The types of cases that we are likely to see are continued consumer and investor claims, along with shareholder class actions – although the large number of recent shareholder class actions has been effective in tightening up corporate governance in Australia. The major plaintiff firms and litigation funders have focused their attention on the shareholder and financial services claims and become the dominant players in that field. This has left a gap in the market for emerging firms to pursue product liability claims. The up skilling of a greater number of firms in class action litigation has resulted in more claims being commenced by different plaintiff law firms. We are also likely to see a renaissance in product liability claims as a number of smaller plaintiff law firms begin to pursue class action litigation.

Lee: The Supreme Court’s pronouncements will force parties to either refine issues, class definitions and remedies to satisfy the ‘rigorous analysis’ for certification, or seek alternative procedural devices to pursue large claims. As examples, in some instances, parties have deferred resolution of motions to certify and proceeded instead of selecting to try bellwether cases to assess exposure and explore settlements. Subclasses may be proposed to minimise individual differences that might otherwise defeat certification. Where sufficient numbers of claimants are available, some cases will be filed as mass actions. Many companies will take steps to include non-class arbitration provisions in their contracts, but many other companies either cannot or will not take that course. Moreover, many class actions are not contract related and would not be affected by arbitration agreements. In short, class actions and mass actions will continue for the foreseeable future. Fertile areas of such litigation include privacy claims and regulatory based claims, including banking, securities, antitrust, consumer protection and trade practice laws.

Dawson: I expect consumer class actions to continue despite a number of favourable class action decisions issued by the US Supreme Court. The US Supreme Court has not answered the question of whether or not a class, which includes members who do not have standing under Article III and whose products have not manifested the alleged defect, can be certified. The Ninth, Third, Sixth and Seventh Circuits have answered in the affirmative, but the Second and Eighth Circuits have answered in the negative. I anticipate we will see an increase in no-injury product liability class actions in those jurisdictions that allow certification of classes despite the fact that many, if not most, members of the class have not experienced a problem with the product they own. Other ‘hot’ areas for consumer class actions will be consumer protection and fraud, antitrust, wage and hour, securities, and privacy class actions. I expect these cases to be prevalent across a variety of industries, though likely concentrated in those ‘plaintiff-friendly’ jurisdictions where the plaintiffs’ bar believes a class will be certified and that the decision will be upheld on appeal.

Napolitano: I expect that creative and motivated plaintiffs’ class action counsel in the US will continue to use the class action mechanism frequently in the area of mass torts and consumer litigation. While the theories of liability will continue to evolve, plaintiffs’ lawyers realise full well the leverage that can be brought to bear over corporate defendants through the class action mechanism. I expect that such cases will continue to be common in many jurisdictions under state consumer protection laws. As manufacturers face ever increasing pressures to differentiate their products in the crowded worldwide marketplace, attention will continue to be paid to marketing and product claims. To the extent creative lawyers can put forth claims that such labelling is deceptive to consumers and in violation of state consumer protection laws, class actions will continue to be filed in this area.

Cari Dawson is the chair of the Class Action Practice Team for Alston & Bird’s Litigation & Trial Practice Group. She concentrates her practice on complex litigation matters, with particular focus on class action defence. Recently, Ms Dawson served as lead economic loss class action counsel in the Toyota Unintended Acceleration Marketing, Sales Practices, and Product Liability MDL. Ms Dawson’s practice also includes commercial litigation, client counselling, risk management, and strategic planning.

Ross McInnes is a commercial litigator specialising in class actions. His class action experience traverses a range of industries and practice areas including financial services, pharmaceuticals, medical devices, anti-trust claims and shareholder class actions. Mr McInnes’ experience and understanding of the practicalities of running and managing large-scale class action litigation, and his in-depth knowledge of class action law, mean that he provides clients with the specialist skill set that class action litigation demands.

Steven F. Napolitano represents defendants in complex mass tort, class action and product liability litigation. Representative clients of Mr Napolitano have included manufacturers and distributors of asbestos and asbestos-containing products, pharmaceutical products and medical devices, heavy machinery, food and beverages, and other consumer products. Mr Napolitano is an author and lecturer on US product liability issues. He has served on Law360’s Product Liability Editorial Advisory Board.

Wayne Lee is chair of Stone Pigman’s Commercial Litigation Group. He has extensive experience representing insurance companies, businesses and public agencies in a variety of class action lawsuits in Louisiana and the Gulf South region. He has resolved class and mass actions involving diminished value claims, first party insurance claims, insurance regulations and antitrust claims.

Antonio Yanez, Jr is a partner in the Litigation Department of Willkie Farr & Gallagher LLP. He concentrates on securities and financial reporting matters as well as mergers and acquisitions litigation. Mr Yanez’s practice includes representation of issuers, officers, directors, underwriters, accounting firms and others in securities class actions, M&A cases, SEC proceedings and other litigation and regulatory matters. His litigation experience includes cases in federal, state and bankruptcy courts around the country.

THE PANELLISTS

Cari K. Dawson

Alston & Bird

Ross McInnes

Clayton Utz

Steven F. Napolitano

Skadden, Arps, Slate, Meagher & Flom

Wayne J. Lee

Stone Pigman Walther Wittmann

Antonio Yanez, Jr

Willkie Farr & Gallagher