We provide class action defense that is state of the art and unsurpassed in intelligence and sophistication, successfully defending clients in class actions with hundreds of millions and even billions of dollars of claimed liability on the line. We have overcome and defeated some of the most difficult kinds of class actions, brought by aggressive and prominent plaintiffs’ lawyers, in the most difficult circumstances, saving our clients from exposures that threatened their continued existence as business enterprises. When tenacity, ingenuity and judgment are critical, clients can count on us.
We have successfully defended clients in federal and state court systems throughout the country, from California to Massachusetts, from trial courts to the Judicial Panel on Multidistrict Litigation and numerous federal courts of appeals. Our lawyers have successfully defended not only one-off class actions but also groups of class actions filed in multiple jurisdictions, including matters consolidated into multidistrict litigation, and waves of class actions filed across the entire country. We have been called upon at the eleventh hour by clients to take over class actions they were losing and successfully rolled back the tide. Whatever challenges face our clients, we have been there and are prepared to respond with formidable strength and ingenuity.
Defending against class actions takes courage, judgment, and depth of knowledge and understanding. It requires tenacity, creativity and long-term focus when early victory is not possible. Passivity and lack of depth can be fatal. Our approach is proactive and strategic. We set our own agenda and refuse to follow the plaintiffs’ script. We often find that plaintiffs’ counsel are surprised to encounter resolute opposition.
Our lawyers have been on the cutting edge of countering “no injury” class actions, specious “economic loss” and “fraud on the consumer market” theories, and shortcuts around due process through use of issue classes and other compromises to normal discovery and trial procedures. We have developed innovative theories and practices to combat abuses of statistics and economic principles used to rationalize class actions. We pioneered economic and legal analysis showing that the value-based measure of restitutionary relief permitted under California’s Unfair Competition Law is not amenable to common proof.
We are experienced in approaches to securing dismissal of claims and attacking class allegations at the pleading stage all the way through appellate processes and use of mandamus procedures when necessary to secure victory. We guide clients through the maze of decision points to find the right strategy for each case.
Our experience covers virtually every substantive area of class and “aggregate” litigation, including securities, consumer fraud and protection, antitrust, data privacy and security, products, mass tort, environmental, health and safety, and labor and employment.
Illustrative examples of our wide-ranging experience include:
- Defending one of the country’s largest banks in putative class and individual actions by bondholders alleging breach of a trust indenture. Bondholder classes are often certified, and had been against our client. Despite extraordinarily aggressive and abusive prosecution of the case by plaintiffs’ counsel, however, we defeated class certification, resulting in nuisance settlements with the individual plaintiffs far below the cost of defense. The victory was so decisive that the plaintiffs did not even pursue an appeal. Along the way, we defeated a motion to compel discovery of all privileged communications under a fiduciary exception, even though other courts had granted similar motions against other indenture trustees represented by larger law firms. The court even granted our motion to overrule plaintiffs’ confidentiality designations. Summary judgment was granted against the separate individual plaintiffs and affirmed by the Fourth Circuit.
- Defending a manufacturer of wood-plastic composite (WPC) decking products in a proposed nationwide class action on behalf of owners of an estimated more than 20,000 decks, as well as individual actions and related contract and intellectual property disputes. Class certification was denied after extensive discovery, expert discovery, briefing and hearing. The plaintiffs’ motion to compel production of joint-defense communications and their Daubert motion to exclude our WPC expert were also denied.
- Taking over the defense of a collective action and proposed class action in federal court in California under the Fair Labor Standards Act and the corresponding California wage and hour law. When we took over, only a month remained until discovery closed and our class certification briefing was due. We developed a strategy, deployed a rapid discovery team and met the deadlines to file a comprehensive opposition to class certification and a motion to decertify the collective action. The court denied class certification under Rule 23 and decertified the FLSA collective action.
- Defending a major package delivery company against an enormous putative class action by small businesses that sued under theories including breach of contract to recover amounts erroneously charged for shipments that were never tendered for delivery and thus never delivered by our client, an error that did occur with some frequency and had affected the plaintiffs. We developed and executed a sophisticated defense plan and defeated class certification, ending the threat. The named plaintiffs received only small individual settlements.
- Taking over the defense of a large a pharmaceutical company in statewide and nationwide consumer and third-party payor class after the statewide action (California) had already been certified, class certification briefing was due in the nationwide class action (Minnesota) and both cases were set for trial in less than eight months. The plaintiffs claimed economic losses in connection with marketing of a prescription hormone drug that had been sold for more than 40 years without FDA approval, at peak selling over $1 billion annually. We developed a sophisticated, multitracked defense plan and an aggressive campaign of discovery, expert retention and preparation, summary judgment and decertification motion practice, and trial preparation. After developing a powerful record in the trial court, we petitioned for mandamus to decertify the California class while we prepared for trial less than two months away. When the court of appeals ordered the plaintiffs to answer the petition, they immediately and dramatically reduced their settlement demand, and we reached a very favorable settlement. The plaintiffs in the nationwide putative class action settled their case for a negligible amount after recognizing that they would not be able to overcome our opposition to class certification. Several years earlier, we had obtained dismissal of a similar nationwide putative class action for the same client concerning the same drug and the same theories of liability in federal court in Tennessee. We showed that the claims were barred by preemption and primary jurisdiction.
- Obtaining dismissal of a putative nationwide class action against a specialty metal products manufacturer brought on behalf of all employees of customers for medical monitoring for an occupational disease. We defeated certification of a class of contractor employees against the same company in a case of first impression in Ohio.
- Securing dismissal of, or summary judgment on, all claims in a putative nationwide class action against a leading national bank relating to its billing and late fee practices.
- Obtaining summary judgment for a leading national bank, disposing of all claims in a putative nationwide class action seeking recovery of interest paid on loans made by failed savings institutions and later resold to the defendant and other banks.
- Securing dismissal of multiple class actions against national banks brought by bankruptcy trustees claiming that failure to record assignments of mortgages to securitization trusts invalidated the assignments.
- Obtaining dismissal of a class action against a leading national bank through enforcement of an arbitration agreement containing a class action waiver.
We defend clients across all industry sectors, including manufacturers of all kinds (from drugs to electronic and consumer products to building materials and heavy industry), banks and financial service providers, retailers, transportation companies, cable companies and many others. We even successfully defended a major service provider against a massive class action on behalf of its business customers.