A Class of Distinction
Class action lawsuits and the legal
assistant’s role.
By Rod Hughes
July/August 2005 Issue
Pharmaceutical executives shudder at the
thought of them. Tobacco companies abhor them. Fast food giants scramble
to avoid them, and too many Americans seem to find themselves entangled
in them. However, class action lawsuits are on the rise, and at the
heart of nearly every one is a paralegal or team of paralegals working
to either provide the ability to prosecute them or defend against them.
In an increasingly litigious society,
class action lawsuits have become a common occurrence. In an effort to
control costs and allow attorneys to focus on the theories and
strategies necessary to cope with such litigation, paralegals continue
to man the front lines of the class action battlefield.
One of the problems with defining the
paralegal’s role in class action matters is the very nature of the work.
Due to the sensitivities that must be considered in most class action
matters — and in some cases it has more to do with the public profile of
the parties involved — many paralegals are reluctant to discuss their
perspectives on class action lawsuits. Of the 12 paralegals and three
attorneys contacted for this article, only three paralegals and one
attorney agreed to speak on the record. The others alternately said that
speaking, even in general terms, could be hazardous to their firms’
client’s positions or were told by supervisors they could not consent to
an interview.
One Philadelphia attorney, who asked not
to be named, put the situation succinctly: “It’s rarely ever a done
deal. Class actions go on forever, and no one wants to say or do
anything in the media that would harm or even cause concern for a client
who might not be media friendly.”
The Paralegal
Steps In
In this field of large litigation and sensitive case matters,
where does the paralegal fit in?
“My primary role in such cases is to
obtain, review and organize documents for use in fact investigations, as
well as prepare depositions and written discovery in the lawsuit,”
explained Sanford G. Roberts, a paralegal with Levy, Morse & Wheeler in
Englewood, Colo.
With 25 years of paralegal experience,
and more than a few class action matters under his belt, Roberts is like
a lot of his colleagues working on such matters. His role is to lay out
all the relevant facts so the legal team can develop a coherent
strategy. As Roberts noted, this sometimes can involve a massive amount
of documents. In large class action matters, like those covered in the
media related to recent tobacco settlements or well-known pharmaceutical
companies, it’s not uncommon for paralegals to find themselves facing
entire warehouses full of documents, enormous database entries and a
legal team spanning several law firms and temporary staff members.
J. Alex Grimsley, a partner with Bryan
Cave in Phoenix, said the primary responsibility for paralegals in his
office working on class actions is information management. “My
paralegals are responsible for maintaining the file, organizing
information regarding class members and preparing witness books and
other trial aids,” he said.
For most, that often is a tall order.
Paralegals working on class action matters begin with a basic premise:
get organized. That means trying to assemble a broad overview of the
entire matter. Paralegals in these situations often begin by
establishing databases to track both information and clients. These
records can range from extensive, detailed medical records to simple but
large customer mailing lists.
The paralegal’s job is to sift through
thousands, sometimes millions of pages of documents to determine what is
critical and how to categorize the vast amount of data. As such, just
organizing the information can take countless legal team members months
of review and data entry time.
It’s also not uncommon for paralegals to
be the first ones to conduct comprehensive reviews of depositions,
pulling the most relevant materials to support the client’s goals.
Because attorneys handling class action lawsuits must focus on strategy,
it’s often left to the paralegal to cull out the relevant information
that helps to build the foundation for a case. Just like Roberts, legal
assistants frequently find themselves preparing drafts for discovery
requests, responses and disclosures when handling class action lawsuits,
sometimes because they are closer to the particular issues of a case
than some of the attorneys.
“Paralegals are a critical component to
my class action practice,” Grimsley said. “Without [paralegals], I could
not possibly manage the large amounts of data and factual information
that are involved.”
One prominent East Coast attorney, who
asked not to be named, even went so far as to claim that while she
conducts client and witness depositions, none of the subsequent
materials from those meetings are presented to her without first being
thoroughly reviewed by the lead paralegal on her legal team. This
attorney said class action lawsuits, if not managed properly, can be
unwieldy. “You have to surround yourself with smart, capable people to
manage cases like this. Nothing crosses my desk of any consequence until
[the lead paralegal] has reviewed it. The lead paralegal generally has a
stronger grasp of the minute details of certain matters, allowing me and
the other attorneys to focus on the bigger picture items.”
Bridgett Klingbeil, a litigation
paralegal at Vorys, Sater, Seymour and Pease in Columbus, Ohio, agreed
and said a paralegal’s biggest contribution to class action lawsuits
often is being the keeper and disseminator of critical information. She
said her role consists of coordinating discovery and case file
maintenance, allowing the attorneys to focus on strategy while she
handles the collection, categorization, organization and analysis of
hundreds of thousands of pieces of information existing in any given
class action matter.
“The amount of documentation in class
actions sometimes can be staggering. In a recent class action in which
our firm won a defense trial verdict, the documents made available
during discovery probably exceeded one million pages,” Roberts said.
“For certain class actions, millions of pages of documentation are just
the starting point.”
To be most effective in the role of
information manager, Klingbeil said she believes paralegals must have a
working knowledge of litigation document management software, as well as
other database programs.
Computer skills are critical. More than
a few cases begin with information stored in word processing programs
long before a database of any kind is deemed necessary. The ability to
manipulate Microsoft Word, Corel WordPerfect and document management and
database programs is a necessity when tackling class action information.
Programs such as OnBase by Hyland Software Inc., Alchemy MailStore by
Captaris Inc., Laserfiche, Legal Files by Legal Files Software Inc.,
Practice Manager by RealLegal and Case Manager Pro by Solutions In
Software Inc., are only a handful of the programs paralegals might find
useful in a class action suit.
Those who have been involved in class
action matters even argue that paralegals should take the time to become
familiar with at least two or three legal-specific document management
programs so they can move quickly when recommendations or quick data
action is required.
“A lot of times the information comes to
you in raw form, meaning there is no database. When that happens, you
have to make quick but informed decisions on what you will recommend to
your employer for managing all that data. If you know a little something
about a database program or two, you already are ahead of things and can
immediately reinforce your value to the other members of the legal
team,” said one class action veteran paralegal, who asked not to be
named.
Keeping Current
Along with managing volumes of documents, class action
paralegals need to be aware of changes, big and small, in laws and
statutes affecting class action suits. Perhaps the most notable of those
changes occurred on Feb. 18, when President Bush signed into law the
Class Action Fairness Act of 2005. Simultaneously derided as
anti-consumer and pro-business legislation, the act is being lauded as a
significant step in curbing junk lawsuits often filed in “judicial
hellholes” favorable to large verdicts (see “Report Names ‘Hellholes,’”
May/June LAT). The new legislation
will change the way attorneys approach future class action lawsuits, how
they structure some of their billing and where they will argue their
cases. The question many class action paralegals now are considering is
exactly how the new legislation will affect them.
Under the new law, which applies only to
class actions filed on or after Feb. 18, federal jurisdiction may apply
in cases where the amount in controversy exceeds $5 million, the class
contains at least 100 members, or any member of the class is a citizen
of a state different from any defendant.
In addition, under the Coupon Settlement
provision, the act limits legal fees where plaintiffs receive coupons
instead of cash settlements by linking the fees to the value of the
coupons or the actual hours spent on a case. The White House claims this
will discourage some attorneys from filing junk lawsuits and ensures
attorney fees will not outstrip any awards or settlements for the class
itself.
“The goal of providing defendants a
procedural avenue to escape certain state court jurisdictions known to
be plaintiff friendly in class actions is a good one from a defendant’s
perspective. Of course, [the act] also could result in a proliferation
of individual, state-specific class actions, which might not work to a
defendant’s benefit from a cost perspective,” Grimsley said. As for the
new law’s impact on paralegals, opinions range from no effect to taking
a wait-and-see approach.
Roberts said he sees the act making
little difference in the work lives of paralegals. “There will be more
cases removed to federal court, but the documents and the facts of a
case that paralegals need to master will remain the same,” he said.
Grimsley agreed, saying he saw no
indication the new legislation would change things for paralegals.
However, Laura Ross, a paralegal with
Briggs & Morgan in Minneapolis, said for those who have mastered their
local court systems, a culture shock might be in the offing.
“Those firms and paralegals who have
focused on class actions arising from state law clearly are going to
have a more difficult time, and [perhaps] that was the intent of the
changes,” Ross said.
Although the nuances of evidence and
filings might change, many agree a potential change of venue likely will
have few effects on the paralegals working in this new class action
environment.
Ross said sometimes it isn’t so much the
law you need to track, as those who make laws. “Because my class action
cases have arisen out of civil rights law, healthy administrative
offices clear of corporate influences are important — offices like the
Equal Employment Opportunity Commission and the Commission on Civil
Rights, which have both gone through substantive changes in the past
five years,” she said. “In the same light, a paralegal working on a
securities class action for plaintiffs would need effective securities
and consumer laws.”
These are some of the more subtle
changes paralegals like Ross must track that can affect class action
matters.
Doing Your
Homework
The best way to keep up to date on class action laws and
information is to look for continuing legal education wherever you can
find it. The first place to look is your local paralegal associations
and paralegal programs. With class action lawsuits on the rise and the
role of paralegals constantly expanding, local associations and programs
are beginning to feature seminars and presentations on this topic. For
example, the Kansas Paralegal Association recently included a workshop
on class actions for paralegals at its annual meeting.
National associations also are getting
into the class action game, with the National Federation of Paralegal
Associations currently offering a series called “A Critical Update on
the Class Action Fairness Act.” Each session highlights a different
state, with upcoming seminars focusing on Maryland, Colorado and
Alabama. The classes are sponsored by the National Business Institute (www.nbi-sems.com).
In addition, several CLE providers now
are offering class action seminars, open to attorneys and paralegals,
most of which are available for purchase if you can’t physically attend.
Many include manuals and other materials, and might qualify for CLE
credit with NFPA or the National Association of Legal Assistants. Recent
seminars available on tape include:
-
“Litigating Class Action Lawsuits: A
Perspective From All Sides,” put on by the Chicago Bar Association in
March 2005, and available from WestLegalEdcenter (www.westlegaledcenter.com).
-
“Practicing Under the Class Action
Fairness Act,” a June 2005 seminar available from HalfMoon Seminars (www.halfmoonseminars.com).
-
“California Paralegal’s Guide to
Conducting Discovery in Class Action Lawsuits,” an online seminar
offered by the Institute for Paralegal Education, in conjunction with
WestLegalEdcenter (Go to the IPE Web site,
www.nbi-sems.com,
for a direct link to this seminar, as well as seminars for many other
states).
Along with seminars, class action
resources on the Web abound. An excellent repository of generalized
information exists on the Class Actions and Derivative Suits Committee
Web page of the American Bar Association
www.abanet.org/litigation/committee/classact). The site offers a
quarterly newsletter, recent circuit court decisions, upcoming events
and a recently published analysis of the Class Action Fairness Act of
2005 by Scott Nelson. To access much of this information, you need to be
a member of the ABA, or at least be able to coax your attorney
supervisor into downloading and printing some of the ABA’s information
for you.
The Association of Trial Lawyers of
America offers a Class Actions Resource Center on its site consisting of
news and commentary related to class action lawsuits. The page, located
at
www.atla.org/pressroom/facts/classactions/classactions.aspx,
includes a few newspaper editorial links and research-related articles.
For those looking to stay abreast of
ongoing class action lawsuits and settlement news, a seemingly timely
online resource is Lawyers and Settlements (www.lawyersandsettlements.com),
which provides nuggets of information on potential class action filings,
current class action lawsuits and recent settlements. It’s worth
pointing out this site, like many online resources for class action
matters, appears to primarily function as a data screening service for
emerging class action matters.
And finally, if you are new to class
actions, a good place to start is FindLaw’s Class Action Center (http://classaction.findlaw.com),
which offers everything from pharmaceutical class action information, to
a general primer on class actions titled “Class Actions and Other
Multi-Party Litigation in a Nutshell.”
Experiencing
the Action
One thing every paralegal working in class action litigation
needs is experience. All those interviewed for this article agreed there
is no substitute for simply getting in on the ground floor of a class
action matter when possible. If your firm handles class action lawsuits,
volunteer to assist the legal team. If you are a paralegal student, seek
out internships with firms that have a reputation for handling class
action lawsuits in your area.
Many paralegals — both on and off the
record — noted class action lawsuits are sometimes merely typical
litigation matters, jumbo-sized, which require paralegals with good
organizational skills and good memories. “[Class action paralegals] need
to develop an ability to review documents with an eye for separating the
wheat from the chaff in large document productions and to quickly bring
key documents to the attention of the attorneys involved in the case,”
Roberts said. “Computer databases and software programs can greatly
assist paralegals, but can’t substitute for human intuition, skills and
experience.”
Class Actions Are
Everywhere
In just the past few months, countless
class action lawsuits have been filed all across the United States. Here
is an overview of a few recent class action matters reported — some new
and some settled — by various media outlets.
AuthentiDate Holding Corp. — a
complaint filed by shareholders alleging federal securities law was
violated regarding a series of material representations made by the
company between Sept. 29, 2003 and May 27, 2005. The lawsuit was filed
on June 6 in the U.S. District Court for the Southern District of New
York.
First American Title Insurance Co.
— a class action lawsuit filed on May 27 in St. Clair County Circuit
Court in Illinois alleging the company misrepresented closing charges.
Class members seek less than $75,000, and it’s believed to be the first
class action filed in that district to meet the state court filing
criteria prescribed by the Class Action Fairness Act of 2005 because the
class members seek less than $5 million.
Roman Catholic Church — the
Diocese of Covington, Ky., announced on June 3 a proposed $120 million
settlement, subject to court approval, that would establish a fund to
pay victims of clergy abuse alleged in a class action lawsuit filed in
2003.
DreamWorks Animations SKG Inc. —
a complaint filed by purchasers of securities alleging the company
issued a series of material misrepresentations to artificially inflate
the price of the organization’s securities. The lawsuit was filed on
June 6 in the U.S. District Court for the Central District of
California.
Certified Class Action — in May,
the 14th Texas Court of Appeals ruled to allow two men to proceed with
an intended class action lawsuit against several local strip clubs,
alleging the clubs violated state law by adding a $5 credit card charge
to the price of a lap dance. The suit originally was filed in 2003.
Avon Products Inc. — the
California Court of Appeal reinstated a class action lawsuit against
Avon in May for unfair business practices, fraud and breach of contract
on behalf of women who sell the company’s products. The class, estimated
to be in the thousands, claims the company forced products on its sale
representatives or deliberately shipped more products than sales
representatives ordered.
Countrywide Home Loans Inc. —
announced in late May a settlement of $30 million to settle claims of a
class of approximately 400 workers in its Rosemead, Calif., call center
concerning overtime pay, wage and hour claims, and meal breaks.
Vegas Grand — a class action
lawsuit on behalf of hundreds of Vegas Grand condominium purchasers was
filed on May 19 after the Las Vegas property developer allegedly issued
a unilateral cancellation of the purchasers’ agreements calling for
those purchasers to either accept the cancellation and a refund of the
deposit, or sign new reservation contracts at higher price points. |
