Pierce Atwood, is launching a Class Action Mediation service led by Donald R. Frederico, Boston partner and chair of their Class Action Defense Practice.  Frederico took some time to share his insights on class action litigation with NLR readers, offering some advice to attorneys looking for a career in class action litigation, as well as insights into why mediation might be the best solution for clients.

Frederico has over three decades of trial and litigation experience.  He says, “I have worked with many attorneys on both sides of the ‘v’ and have litigated, mediated, and settled many different types of class actions.”   This experience gives Frederico the understanding to assist in the negotiation of settlement agreements that achieve client goals, satisfy the standards applicable to class action settlements, and ultimately get approved by the courts.  Frederico describes the intricacies of class action litigation, offers some advice on how to succeed in this area based on his experience, and why mediation is sometimes the best answer for both plaintiffs and defendants.

Class Actions:  A Complex and Challenging Area of Law and Some Guidelines for Success

Class action litigation offers attorneys many unique challenges.  Frederico says, “Class action litigation combines many things I like about practicing law.  It is intellectually challenging and procedurally complex, and brings to bear interpretations of a complex set of case law, including many Supreme Court precedents.”  Combine that with high stakes and a result that can impact not just an individual, but a large group, and “You have an opportunity for vigorous courtroom advocacy in connection with the merits of the case, the class certification motion, and often the admissibility of expert testimony in a variety of fields of knowledge.”  

In his view, a few elements are key to being successful with class action law.  Though it may seem fundamental, Frederico indicates that the first piece for any aspiring class action attorney is to know class action law and know it well.  He says, “So much depends on the class certification motion that close familiarity with the key rules, principles, and cases is imperative.”  Along those lines, Frederico suggests that aspiring class action attorneys “master fundamental litigation skills.  The best class action lawyers are good trial lawyers, and knowing how to try a case, prepare a case for trial, and present oral argument is just as important as knowing the key class action decisions applicable to your case.” 

In the courtroom, reading the audience and assessing its familiarity with these knotty procedural guidelines is crucial.  Frederico points out, “Some judges have handled enough class actions that they don’t need you to dwell on the basics; but others need and often want your argument to include an overview of the fundamental principles applicable to the class action motion.”  Discerning what elements to include, and where and when to include them, and learning whether the judge wants those guideposts can have an impact on the outcome.  Speaking to the procedural roller coaster that describes many class actions, Frederico advises: “Fight hard against opposing counsel, but never make it personal.”  In most  class action situations, opposing counsel end up working together on questions of settlement, and he says, “ If you transition from making war to making peace, you and your opponent will need to work together to craft a reasonable settlement and may need to join forces against objectors who would derail it.  Adversaries can quickly become needed allies.”

Mediation in Class Actions

As discussed, class action litigation can be very expensive, time-consuming, and risky.  Mediation is attractive because it helps undercut those downsides, and instead focuses on finding solutions to the disputes at hand.  Frederico says, “Mediation can mean the difference between rationally managing each side’s business and financial goals and simply throwing the dice and hoping for the best.” Frederico points to the risk on both sides that class action litigation can entail--how it can take years for the process to unfurl through trial and appellate courts, while defendants risk a large judgment and plaintiff’s counsel risk uncompensated time and expense.  The court system itself is prohibitive, with high costs for expert witnesses, and extensive discovery, briefing, and argument before any sort of resolution is reached.  While defendants don’t want to reward meritless cases with a settlement, Frederico says, “Some defendants will endure high costs of defense as a matter of principle, but defendants also must weigh those costs against the business realities of expensive and distracting litigation as well as the probability and consequences of a bad outcome.” 

With the risks inherent in class action litigation, mediation is often in the best interests of the client.   Frederico says, “Most class actions settle, and many of them settle after mediation.  As a trial lawyer, I often don’t want my cases to settle, but as a business advisor, I recognize that a class action settlement often may be in my client’s best interest.”