Reflections from the 2013 National Institute on Class Actions

The Institute graced the Revere’s stylish loft meeting space, which featured exposed brick, high ceilings, and chalk walls for our guests’ thoughts and musings. In keeping with a new Institute tradition, Drew McGuinness and I got things started with Class Actions 101—a nuts-and-bolts primer for new lawyers or lawyers simply new to class actions. Despite this program’s optional nature, over 50 guests joined us.

In keeping with a longer-standing Institute tradition, Columbia Law School Professor Jack Coffee and University of Connecticut School of Law Professor Alexandra Lahav next took us on a midday ride through the very busy past year in class action jurisprudence, highlighting (or lowlighting) the U.S. Supreme Court’s decisions in Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013),and American Express Co. v. Italian Colors Restaurant, 133 S. Ct. 2304 (2013). As usual, they were worth the price of admission.

Alongside Harvard Law School Professor Bill Rubenstein, Judge Jack Zouhary of the Northern District of Ohio, Elizabeth Cabraser, and Ted Frank, I then led an unexpectedly topical program on the particulars of cy pres distributions and the propriety of plaintiffs’ attorney fees based on these distributions. I say “unexpectedly” because only five days later, the U.S. Supreme Court denied certiorari in Lane v. Facebook, Inc., in which Chief Justice Roberts issued a four-page statement challenging the class action bar to present to the Court a case involving the precise issues that we had discussed.

Next, Vince Esades hosted a segment examining not whether class actions should be in arbitration but rather what class action lawyers must do now that class actions are in arbitration. For this purpose, Vince was joined by Cardozo Law School Professor Myriam Gilles, Stu Widman, Holly Loiseau, and the always-captivating Paul Bland.

Having been sated with enough class action content for the day, everyone retired to the Revere Hotel’s stylish Emerald Lounge for a glittering cocktail party.

Fully rested (or not), we reconvened the next morning for Drew’s program, in which he drew back the curtain to examine just how plaintiffs’ class action lawyers get retained by clients (or how plaintiffs’ class action lawyers retain clients, as the case may be). His program smartly queried whether sound and efficient social and legal policies really require this undertaking. University of San Francisco Law School Professor Josh Davis, Judge David Lawson of the Eastern District of Michigan, Carrie Anderson, and Renee Zipprich rounded out Drew’s impressive faculty.

And what would this year’s Institute have been without a program on standing? After all, the Seventh Circuit’s decision in Butler v. Sears, Roebuck & Co., 727 F.3d 796 (7th Cir. 2013),and the Sixth Circuit’s decision in In re Whirlpool Corp. Front-Loading Washer Products Liability Litigation, 722 F.3d 838 (6th Cir. 2013),all but demanded it. Capably handling this task was Jeff Leon who moderated a Crossfire-inspired—and spirited—debate among University of Texas Law School Professor Linda Mullenix, Chris Murphy, and John Shub.

Fred Burnside stepped up next. He led a panel examining Comcast’s traction (or lack of it) and questioning whether trial by formula is suitable or dead, or resides someplace in between. For this program, Professor Lahav served double duty and was joined by Jocelyn Larkin and Matthew Ford.

When the morning whirlwind concluded, we all returned to the Emerald Lounge for an outstanding lunch that featured multiple serving stations with gourmet options ranging from chicken to beef to fish; our lunch was capped off by bountiful dessert tables. But perhaps most pleasing, our lunch provided ample opportunity for our guests to talk, market, and network with each other. Some guests might even have pondered the morning’s content.

My personal highlight followed lunch. Upon guests’ return to the loft, they observed our stage’s transformation into a courtroom for our very own Court of Appeals for the 12th Circuit. Don Frederico introduced two hypotheticals that invoked Comcast issues, which he, Jason Hartley, Bonny Sweeney, and Matt Stein capably and zealously argued before Judge William Young of the District of Massachusetts, who was joined by Judges Zouhary and Lawson.

Finally—and commendably maintaining everyone’s interest deep into our second day—Sabrina Strong combined with David Biderman, Steve Gardner, and Adam Gutride for a program that taught us how to expand our practices by recognizing opportunities to pursue and defend food-labeling class actions. Sabrina and her group deserve special praise for having maintained such obvious enthusiasm and interest so late in the day.

The Institute was another rousing success, and we’ve already scheduled next year’s Institute for October 23–24, 2014, in Chicago at the spectacular Wit Hotel. To anyone considering attending, it’s worth emphasizing that we take great care to present a topical, vibrant, and thematic program that promotes and embraces an inclusive and collaborative attitude. Our goal is to offer something for everyone, so we sure hope that you’ll join us next year!

Keywords: litigation, class actions, National Institute on Class Actions

Daniel R. Karon is withGoldman Scarlarto Karon & Penny, P.C., in Cleveland, Ohio.