Class Actions: Effective Partnering Between Inside And Outside Counsel

by 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).

Written by:

Carlton Fields

Carlton Fields on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.