Class Actions: Effective Partnering Between Inside And Outside Counsel

Carlton Fields

The following series of blog posts were excerpted from the class actions chapter of Successful Partnering Between Inside and Outside Counsel, a multi-volume treatise that is a joint project of West and the Association of Corporate Counsel. The segments reprinted here, with slight modifications to make them better suited to this format, were written by Carlton Fields shareholders Gary Sasso and Matt Allen, and David Leitch, general counsel of Ford Motor Company.

This series of blog posts will begin by discussing effective partnering between inside and outside counsel. We will then cover strategies peculiar to class action defense, focusing on defense against the certification of the litigation as a proper class action.[1]

A class action is a lawsuit filed by one or more plaintiffs seeking to represent a group or "class" of similarly situated persons.[2] The purpose of a class action is to "enable parties, who have insufficient means to pursue their individual claims, to pool their resources and pursue their common complaints."[3] Although corporate clients may on occasion contemplate filing class actions offensively as plaintiffs, more typically, they are involved in class litigation as defendants, and that will be our focus.

Given that class action litigation can implicate core aspects of the defendant’s product lines or business practices or policies, effective partnering between inside and outside counsel is indispensable to ensure that the conduct of the litigation itself does not impair the ability of the company to continue to do business with as little disruption as possible. Plaintiffs may be claiming millions or billions of dollars in damages, which may approach “bet the company” proportions. So, the company will have to weigh investing considerable internal and financial resources to defend the litigation, and managers of the affected business units and the defendant’s legal department will be highly motivated to ensure that the company’s investment is well spent.

Planning is Crucial
From the inception of the litigation, it will be crucial for inside and outside counsel to discuss corporate goals and objectives, budget objectives or constraints, staffing, preferred means of reporting and invoicing, roles of inside and outside in preserving and producing information, ongoing case evaluation, preferences of inside counsel in participating in key decisions, conferences, hearings, meetings, and other aspects of the litigation, use and modification of litigation budgets, retention of experts, and strategies for defense of the litigation. In-house litigators at Ford Motor Company, for example, apply a simple test to determine whether their planning discussions with outside counsel are effective: If a monthly bill shows activity that was not discussed in advance, then something went wrong in the planning discussions.

Discussions Should be Confirmed in Writing
Discussions between inside and outside counsel should be confirmed in writing and modified, as necessary, as the litigation proceeds. This is not an exercise in creating a paper trail, but an indispensable means to ensure that inside and outside counsel start and remain on the same page as they manage what inevitably will become highly complex litigation. At Ford, a written budget is used to plan near term and long-term defense efforts. The budget is not particularly detailed, but it drives the discipline of detailed planning discussions between inside and outside counsel.

As noted above, inside counsel should identify all members of the in-house team who will be active in the litigation in any way. Ideally, outside counsel managing the day-to-day litigation should personally meet these corporate team members and be integrated in the team. Likewise, outside counsel should identify and introduce to in-house counsel all attorneys, paralegals, and staff who will be involved in the litigation and provide contact information that will enable inside counsel to reach any team member day or night. Face-to-face introductions are ideal, but video conferences can be a cost-effective substitute for expensive travel.

Our next post will explore strategies in class action engagement.

[1] For additional discussions of class actions, see John F.X. Peloso, Peter Buscemi, and James D. Pagliaro, Chapter 16 “Class Actions,” in Haig, Business and Commercial Litigation in Federal Courts, D. Pagliaro, Chapter 16 “Class Actions,” in Haig, Business and Commercial Litigation in Federal Courts, D. Pagliaro, Chapter 16 “Class Actions,” in Haig, Business and Commercial Litigation in Federal Courts, §§ 16:1 et seq. (2d ed.).

[2] Montgomery Ward & Co. v. Langer, 168 F.2d 182,187 (C.C.A. 8th Cir. 1948) (describing the class action's equitable origins and its subsequent memorialization under Federal Rule of Civil Procedure 23 as a procedural device it may apply to equitable or legal actions).

[3] In re Dennis Greenman Securities Litigation, 829 F.2d 1539, 1545 n.6, 9 Fed.R. Serv. 3d 415 (11th Cir. 1987).

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