Class Action Defense
Class Action Defense attorney Michael Hassen is a former Supreme Court law clerk, author and editor of Miller, Starr & Regalia’s real property treatise. Michael Hassen is nationally known class action litigator and editor of the Class Action Defense Blog. Michael combines complex legal reasoning and motion writing with genuine jury trial experience. These are rare qualities in a civil litigator and Michael’s record of success has built a national reputation as the “go-to” lawyer for difficult civil defense cases. Michael Hassen is the trial attorney to hire for real estate litigation, employment litigation and complex business litigation such as cases involving UCC sale issues (U.C.C. – ARTICLE 2 – SALES).
Modern Class Action Defense
Working with Lawyers in Lafayette, Michael Hassen has taken the “old school class action defense” and updated it to meet the realities of modern litigation. The old school approach is ineffective and it costs companies millions of dollars in unnecessary legal fees and settlements.
The Old Class Action Paradigm
Class Action Defendants Are Pawns in a Lawyer Chess Game
Class Action defendants know that a “game” is sometimes played with the client as the “pawn”. Both sides litigate and run up large bills. Then they settle. But the class action settlement pendulum is swinging toward the plaintiff’s side. Plaintiffs have created a new class action strategy and defense firms have been slow to respond.
Motion for Summary Judgment in Class Action Cases
The Motion for Summary judgment used to be the Super Bowl in class action litigation. Now it is simply a step in the plaintiff’s attack. Plaintiff’s increasingly are confident pushing a case to jury trial. The MSJ is now the playoffs and defense firms are often ill suited for a genuine jury trial.
Defense firms compete with each other but the plaintiff’s bar has pulled together to devise effective tools for jury trials. While the defense firms fashion discovery responses and motions in preparation for the MSJ, plaintiff’s firms are working two tracks simultaneously, MSJ and Jury Trial. Post MSJ, plaintiffs are now prepared to go further while many defense firms are flat footed with “litigators” being inexperienced with true arbitration or trial work.
The New Class Action Plaintiff Lawyer
The new class action plaintiff’s lawyer is not focusing solely on surviving summary judgment. They are preparing their case on two tracks, MSJ and Jury trial. These Plaintiff class action law firms are using jury consultants, trial managers and well thought out cookie cutter strategies that allow even inexperienced trial attorneys to make a good trial presentation. They are also engaging in discovery with the trial presentation in mind.
The “Arbitration” Ruling
The Supreme Court just decided Epic Systems v. Lewis. The Court in Epic Systems found that the Federal Arbitration Act (FAA) compels enforcement of an employer-employee arbitration agreement. This forces cases to resolve on an individual basis.
This is good news for both sides to a legitimate dispute but it is painful to the hired guns who use “class actions” as away to hold up corporations because (to quote Willie Sutton on why he robbed banks), “That’s where the money is”.
But the news is not all good. Plaintiff firms are prepared for litigation and trials. An arbitration is a quick and easy way to get to trial so there may be an major increase in smaller (but expensive) arbitration cases.
Justice Ruth Bader Ginsburg was outraged at the Epic Systems decision and she stated that there will be a “huge under-enforcement of federal and state statutes designed to advance the well-being of vulnerable workers.” We are not so certain. Justice Ginsburg recognized that individual complaints can be very small in dollar terms, “scarcely of a size warranting the expense of seeking redress alone.” However, the quick and easy access to a judicial decision in arbitration may lead to a cottage industry of small cases built to seem big.
The case also raises the likelihood of future litigation. For example, the Supreme Court’s analysis, casts doubt on whether the High Court would allow the California Supreme Court’s analysis in Iskanian – exempting PAGA labor law class actions from the reach of the FAA – to survive, and is likely to give birth to a new wave of challenges to PAGA class action lawsuits.
The Settlement Price is Going Up
For non-arbitration cases, settlement prices are going up. Cases that used to settle for a nominal payments to the class and money to satisfy the plaintiff’s lawyers are now being pushed to trial. The class action defense litigator is often only a pretrial litigator with little jury trial experience. Suddenly, post MSJ, the balance of power has shifted. The plaintiff’s firm is better prepared for trial than the defense.
This genuine threat of a massive jury trial verdict is driving settlements higher.
THE MODERN METHOD OF CLASS ACTION DEFENSE
1. Aggressive Motion Work to Obtain a Dismissal
Michael Hassen is well known for scholarship and aggressive motion work. He has a long track record of obtaining dismissals in cases where other firms argued for settlement.
2. Early Nominal Settlement
If a case has some potential merit, Michael Hassen will explore an early (and often nominal) settlement. As any experienced litigator will tell you, a fair and early settlement is often a better choice than a costly, drawn out victory. Faced with Michael Hassen’s track record, many plaintiff’s class action attorneys will negotiate promptly and reasonably.
3. Now Plaintiff’s “Pot at the End of the Rainbow”
Teaming with Lawyers in Lafayette, Michael Hassen added experienced state and federal appellate lawyers and a team of the most successful and experienced jury trial lawyers available. A plaintiff’s firm must now face an onslaught of dispositive motions, motions limiting their class and their damages and a major summary judgment motion. There are no more pots at the end of the class action rainbow.
4. Top Trial Lawyers
Led by legendary trial lawyer Daniel Horowitz, the group also has former top prosecutor Tom Kensok and veteran trial lawyers Carmela Caramagno and Oksana Tsykova. As a group, these five trial attorneys have hundreds of jury trials and decades of days in an actual courtroom.
It is Michael Hassen’s view that this combined force of high level motion work, appellate experience and trial credibility is the wave the of the future for modern defense work.