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Class Actions & Derivative Suits


Learn while you’re on the go. Listen to the Class Actions & Derivative Suits Committee’s audio recordings on this archive page.


Post-Pandemic Litigation: Verdicts on What Will Stay and What Will Go
This program will discuss practices that were developed during the pandemic in regards to trials, and discuss whether they believe these measures are temporary or here to stay. Some measures that will be covered include remote hearings, jury trials and witnesses, more screens for jurors, and use of sidebars, among several other pretrial and trial practices. Seasoned litigators Tom Joensen, Steve Finley, and Elizabeth Dyer Kellett will be joined by Zimmer Biomet in-house counsel Justin Kashman to discuss their experiences arising out of jury trials that were held over the pandemic.

New Challenges: Discovery & Pretrial Tips—Cryptocurrency & Fintech Litigation
Every day it seems as though there is a new development in the cryptocurrency or fintech world. Whether it's the price of bitcoin, the sudden rise of NFTs, or a new technology that is going to revolutionize the banking industry, cryptocurrency and fintech are fast becoming a central part of the economy. As these innovations continue, litigation has begun to follow. Beyond the novel legal issues courts will need to confront, litigations in this field will present new and unique discovery challenges for courts and practitioners, including the identification of custodians in the world of anonymous trading and smart contracts, and dealing with document collection from constantly changing platforms. This Roundtable provides perspectives from both the bench and the bar about how to create a smooth discovery process and prepare to tackle these new challenges. (54:52 min.)

Beyond Denial: Momentum for Real Progress in Diversity, Equity, and Inclusion
2020–2021 presented so many unprecedented challenges, and one of the most overdue areas for change has been in the Diversity, Equity, and Inclusion (DEI) space. After the murder of George Floyd in May 2020, the nation witnessed protests in many cities, and many private and public entities updated their DEI policies to reflect the moment. Then, in 2021, with a surge of violence in the Asian and Pacific Islander community, these issues took on renewed urgency. This Roundtable features in-house, law firm, and government attorneys from diverse backgrounds to discuss their life experiences, challenges they've faced, and expectations for positive change going forward.

Class-Action Settlements: What's New for 2021
Our experienced panel discusses the newest developments in class action settlements, including best practices and pointers for negotiation, approval, notice, incentive payments, and counsel fees.

Sound Advice

The Jurisdictional Differences Between U.S. and Canadian Class Actions
How does litigating class actions differ north and south of the border? Nicole Rozario, a Canadian litigator at McMillan LLP, provides a summary of the important procedural and substantive similarities and differences between American and Canadian class actions.

Incentive Awards Banned in the 11th Circuit—En Banc Review Denied in NPAS
The Eleventh Circuit has made it official. Incentive awards are no longer permitted in district courts located in that circuit. Robert Neary, an Eleventh Circuit practitioner, walks through how the court got to its conclusion, and what the future of class action practice in the 11th may look like.

An Interview With Professor Brian Fitzpatrick
CADS member and Pierce Atwood partner Don Frederico interviews Vanderbilt Law School professor Brian Fitzpatrick regarding Professor Fitzpatrick's recent book "The Conservative Case for Class Actions." Please join us for a thought provoking discussion of the pros and cons of the modern class action from the perspective of both sides of the aisle.

Direct v. Derivative Claims in Delaware Following Brookfield Asset Management
Join CADS co-chair Adam Polk and Delaware shareholder rights attorney Andrew Blumberg in a discussion of the Delaware Supreme Court's recent Brookfield Asset Management decision, in which the Court examined several principles of direct and derivative standards applicable in Delaware.

UFCW v. Zuckerberg and the New Standard for Demand Futility
Join CADS co-chair Adam Polk as he interviews Bernstein Litowitz Berger & Grossman partner (and seasoned derivative practitioner) Ed Timlin in a discussion of the Delaware Supreme Court's recent Zuckerberg decision, in which the Court reimagines the decades-old standard for establishing demand futility.

Certification Denied: Jensen v. Samsung et al.
A brief discussion of the Canadian court's recent refusal to certify a price-fixing class action and why it matters to American lawyers.

An Interview with Balch & Bingham Partner Greg Cook
CADS member and Pierce Atwood partner Don Frederico interviews Balch & Bingham Partner and Alabama Supreme Court candidate Greg Cook concerning his career in class actions.

An Interview with Jocelyn Larkin, Executive Director of the Impact Fund
Common Questions co-host Don Frederico interviews Jocelyn Larkin, the Executive Director of the Impact Fund and past CADS co-chair. They discuss Jocelyn’s career path, the mission and work of the Impact Fund, its collaboration with other public interest class action litigation firms, the challenges and rewards of working for a public interest litigation firm, and Jocelyn’s advice for law students and attorneys interested in careers in public service class action litigation.

The Ninth Circuit Weighs in on Coupon Settlements in Massage Envy
CADS co-chair Adam Polk interviews litigator and mediator Don Frederico regarding the Ninth Circuit's most recent settlement-related decision—Massage Envy—in which the court weighs in on what constitutes a coupon settlement under CAFA.

Avoiding Settlement Pitfalls Following the Ninth Circuit's Tinder Decision
Join CADS Co-Chair Adam Polk and Pierce Atwood Partner and mediator Don Frederico in a discussion of the Ninth Circuit's recent decision in Kim v. Allison, in which the Court found that the district court abused its discretion in approving a class action settlement on behalf of Tinder users. Join us in a discussion of the missteps to avoid in negotiating, finalizing, and presenting your next class action settlement for approval.

An Interview with Dan Karon, Chair of the National Institute on Class Actions
In this lively exchange, Common Questions Co-Host Donald Frederico interviews Dan Karon about his career as a class action attorney, the challenges facing plaintiffs' and defendants' class action lawyers, his vision for the National Institute, and his advice for lawyers interested in class action practice.

Eleventh Circuit Addresses Ascertainability in Cherry v. Dometic
CADS co-chairs Adam Polk and Ian Fisher discuss the 11th Circuit's decision on the existence of an ascertainability prerequisite to class certification in Cherry v. Dometic and its implications on class actions pending in the 11th Circuit and nationwide.

TransUnion v. Ramirez: Immediate & Long Term Impacts of Supreme Court's Latest Decision on Standing
Adam Polk interviews Melanie Conroy concerning the immediate and long term implications of the Supreme Court's latest decision on class action standing.

Common Questions: An Interview with CADS Cochair Lindsay Breedlove
Common Questions co-host Donald Frederico interviews Lindsay Breedlove about her career path, her thoughts about class action litigation and CADS, and advice for lawyers interested in class action litigation.

Effective Use of Virtual Depositions
The past year required attorneys to take virtual depositions because of the COVID-19 pandemic. Today, Anand Mathew will explore the effective use of virtual depositions after the pandemic ends. If given a choice, should attorneys choose physical or virtual depositions? What issues should attorneys consider when deciding between the two?

Common Questions: A Discussion of the Supreme Court's Forthcoming Opinion in Transunion v. Ramirez
Adam Polk and class action practitioner Joe Fischetti discuss the questions presented in the Transunion v. Ramirez case, the recent argument before the Supreme Court, the justices questioning, and the likely impact of the Court's forthcoming opinion on class action practice.

Common Questions
Common Questions is a monthly podcast dedicated to profiling class action thought leaders and cutting edge development in the world of class action litigation. This month host Don Frederico, a partner in the Boston office of Pierce Atwood LLP, interviews Jenn Mesko, a partner in the Cleveland office of Tucker Ellis LLP, about her journey in becoming a class action defense attorney.

Johnson v. NPAS and the Future of Incentive Awards
Moderator Adam Polk interviews Thomas Richie concerning the Eleventh Circuit's recent decision in Johnson v. NPAS, which categorically banned incentive payments. On the docket: (1) is the Johnson result a solution in search of a problem?; (2) will there be a chilling effect on class actions filed in the Eleventh Circuit?; and (3) what does the future hold for class action settlements in the Eleventh Circuit?

Board Diversity Derivative Litigation Discussion
When it comes to racial diversity, equality, and inclusion, the corporate boards of directors are facing scrutiny from institutional investors, legislators, the American public and the plaintiffs’ securities bar. Since July 2020, shareholder plaintiffs have filed a new wave of shareholder derivative complaints against directors of prominent public companies, alleging breach of fiduciary duty, failure of oversight, and proxy violations for alleged failure to include diverse directors on their boards and to assure diversity in the corporate rank and file—despite alleged public commitment to diversity, equality, and inclusion. This 15-minute podcast with Troutman Pepper litigators Pam Palmer, Howard Privette, and Alex Peurach, tells you what you need to know about this new wave of derivative litigation and parallel developments in public and private sectors to push companies faster toward diversity and inclusion.

Observations from Virtual Testimony
Virtual testimony brings new challenges, some expected and some unexpected. Angela Sabbe reviews observations from virtual depositions during this new environment.

COVID-19 and the Tuition Refund Class Actions
Since March 2020, more than 200 tuition refund class actions have been filed against universities because of COVID-19 campus closures. In this podcast, Don Frederico and Melanie Conroy of Pierce Atwood LLP describe the cases, discuss the legal challenges they present, and forecast future developments.

How to Change Legal Jobs in the Midst of a Global Pandemic
Lindsay Breedlove, former partner at Troutman Pepper, provides tips about finding a new job in the legal industry based on her recent experience securing an in-house job at a biotech company. She focuses on the continued importance of networking and tips for interviewing on video.

Remote Mediation: The Good, the Bad, and the Practical
Superstar mediator Judge Jay Gandhi (Ret.) is interviewed by CADS committee co-chair Adam Polk about the ins and outs of remote mediation during the COVID-19 pandemic. Please enjoy this candid discussion and learn about how remote mediation works, benefits, potential pitfalls, and when you should consider remotely mediating your cases.

New Supreme Court Chapter of the ABA's Federal Survey of Class Action Law Treatise
Class action practitioner Jordan Elias, who recently authored the new Supreme Court chapter of the ABA's Federal Survey of Class Action Law treatise discusses the addition with CADS co-chair Adam Polk, and provides insights on how the Supreme Court's approach to class actions has evolved over the years.

Top Tips for Taking and Defending Remote Depositions
Considering taking a remote deposition while working from home? Learn from Mason Farmani, CEO of Barkley Court Reporters, about the various virtual options, how to prepare, and avoiding technical snafus!

Tips for Selecting the Right Expert
There's no Yelp for experts. In this Sound Advice, Angela Sabbe and Scott Carlton discuss tips for finding expert witnesses and considerations to evaluate when identifying the right expert for litigation matters.

Confronting the Question: Does BMS Apply to Class Actions?
Adam Polk discuss the Supreme Court's 2017 BMS decision, subsequent district court decisions' application of the decision to the claims of absent class members, and two recent appellate courts who have been asked to decide: "Does BMS apply to class actions?"

Coordinating North American Securities Class Actions: A Canadian Lawyer's Perspective: Part II
Join Hadi Davarinia of Morganti & Co. in this Sound Advice for a discussion of possible methods of coordination of U.S. and Canadian Securities class actions, including best procedural practices in the early stages of litigation.

Coordinating North American Securities Class Actions: A Canadian Lawyer's Perspective: Part I
Darryl Kyte, member of cross-border firm Morganti & Co., provides his opinions and insight into how to effectively coordinate United States and Canadian securities class actions in their early stages. The first in a two-part series.

A Roadmap to Avoid Class Antitrust Claims
Learn whether federal or state law governs the interpretation of arbitration clauses, whether antitrust claims "arise out of of" or "relate to" a distribution contract under the relevant law, and whether a broad arbitration provision can function as an implicit waiver of the right to pursue statutory antitrust claim in court.

Plaintiff and Defense Perspectives on the Implications of the First Circuit’s Asacol Decision
Britta Stamps and Brad Bodamer offer the defendants' perspective on the First Circuit's recent class certification decision in the In re Asacol Antitrust Litigation, while Adam Polk and Scott Grzenczyk provide insights on the decision from the plaintiffs' side.

Multidistrict Litigation Process
If you are involved in a multidistrict litigation case it may seem overwhelming—but fear not. Listen as veteran litigator Greg Cook explains the process and rules regarding the Multidistrict Litigation Panel (MDL Panel). (8:12 min)

Numerosity as It Pertains to Class Certification
Rule 23(a) has four elements that must be proven prior to class certification. Listen as Kathryn Honecker explains salient points of one of the elements—numerosity. (14:17 min)

Understanding the Demand Futility Exception
Civil litigation generally involves direct claims by an injured party against a wrongdoer. Derivative actions are different. Hear as Jeff Gardner explains how this exception works and the ways in which it may affect your clients. (8:54 min)

Basic Requirements for Class Certification: Commonality
Although Dukes v. Walmart gave more teeth to the commonality requirement and made it more difficult to achieve class certification under Rule23, certifications continue. Hear David Prahl as he discusses changes to requirements for commonality and what this means for you. (10:13 min)

Comcast Today: The Uninjured Class Member Conundrum
Lindsay Breedlove, a commercial litigator at Pepper Hamilton, addresses the contradictory jurisprudence interpreting the Supreme Court's 2013 decision in Comcast v. Behrend, and whether the Court's 2016 decision in Tyson Foods v. Bouaphakeo sheds any light on whether a class can include uninjured members.  

Class Actions and Data Complexity
Just because the data are complex does not mean that commonality and predominance do not exist. Peter Breslauer and Jeremy Guinta walk through lessons to be learned from over-reliance on Dukes.

Developments in Data Privacy Class Action Settlements
Angela Sabbe and Paul Karlsgodt discuss recent trends in settlements of class actions arising out of data breaches. The discussion covers key recent statistics, settlement structures, current barriers to settlement, and potential future developments.

Changes to the Rules of Civil Procedure 16, 26, and 34.
Listen to Adam Polk as he discusses how the recent changes to case management and discovery processes set forth in the Rules of Civil Procedure are likely to affect the small firm practitioner.

Five Practical Considerations for Defending Class Actions
Delving beyond the familiar Rule 23 factors, Ashley Bruce Trehan shares practical tips for representing a defendant in a class action case.

The Current & Future of Class Action Notice Campaigns
The speakers discuss Mullane v. Central Hanover Bank & Trust Co. and how due process implications should be considered when designing a notice program to reach today’s consumers.

Data Breach Class Action Cases
Amanda Fitzsimmons discusses the issue of standing in data breach class action cases and the importance of Remijas v. Neiman Marcus Group.

Five Practical Considerations for Defending Class Actions
Delving beyond the familiar Rule 23 factors, Ashley Bruce Trehan shares practical tips for representing a defendant in a class action case.

Experts in Class Actions and Derivative Suits
Although most litigators would view destroying an opposition expert witness in a deposition as a good thing, veteran litigator Curt Hineline says that may not be the case.

Discovery of Electronically Stored Information (ESI)
Jennie Lee Anderson suggests that when it comes to e-discovery, early planning and cooperation are key to building a successful strategy to best help your clients.

Overview of Class Actions Settlements in the Federal Courts
Longtime litigator Margaret Lyle gives both a step-by-step review of the process and the history of class action settlements within the federal courts.

Ethical Issues Related to Incentive Payments for Class Representatives
Incentive payments for class-action litigants can be tricky to handle. Listen as Mike Downey highlights which practices to employ and which to avoid. (08:28 min.)