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Ethical Considerations in Settling a Class Action Update

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Produced on March 23, 2017

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Course Information

Time 1h
Difficulty Intermediate
Topics covered in this course: Ethics Class Actions

Course Description

Many class actions settle, and both plaintiffs’ and defense attorneys face many types of ethical issues as they settle class actions. For example, should a defendant company make an offer of judgment to a representative plaintiff to rid itself of a case? When settling a case, is a cy pres award appropriate for unclaimed funds? How do attorneys’ fees factor into settlement negotiations?

In this ethics program, led by attorneys Deborah Renner and Kimberly Kalmanson, we explore ethical issues from both sides of the “v.”

Learning Objectives: 

  1. Understand offers of judgment as a means of settlement in light of recent U.S. Supreme Court cases

  2. Identify ethical considerations involved in pre-certification communications with putative class members regarding settlement

  3. Recognize when and how, from an ethical perspective, negotiations regarding attorneys’ fees factor into overall settlement discussions

  4. Discuss the ethical considerations involved in creating incentive awards for class representatives

  5. Gain familiarity with the cy pres doctrine and the ethical considerations counsel must take into account in structuring a cy pres distribution

Credit Information

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Deborah Renner

Renner Law/ADR

Deborah Renner focuses her practice on complex commercial litigation, consumer fraud, false advertising, data breach, ERISA, and securities class actions. Deborah has successfully represented numerous companies in nationwide, multidistrict and state class actions. Deborah frequently advises companies on class action issues and regulatory inquiries. Among her areas of knowledge and experience, Deborah is certified in information privacy.


  • Won complete dismissal of data breach class action. Polanco v. Omnicell, Inc., 2013 WL 6823265 (D.N.J. Dec. 26, 2013).
  • Represented amicus on winning side in seminal class action cases in U.S. Supreme Court. Standard Fire v. Knowles, 133 S. Ct. 1345 (2013);Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).
  • Successfully represented broker-dealer in securities class action.
  • Successfully represented company in Civil Investigative Demand by state attorney general regarding data privacy and security practices.
  • Won summary judgment in a putative class action concerning alleged fraud in the pricing of long-term care insurance. Rakes v. Life Investors Ins. Co. of America, 2008 WL 2158717 (N.D. Iowa June 20, 2008), aff'd, 2009 WL 2981976 (8th Cir. Sept. 18, 2009).
  • Won the complete dismissal of a securities fraud class action alleging violations of Sections 10(b) and 20(a) of the Securities and Exchange Act of 1934. Medis Investor Group v. Medis Technologies, Ltd., 586 F.Supp.2d 136 (S.D.N.Y. 2008), aff'd, 2009 WL 2171277 (2d Cir. July 21, 2009).
  • Since 2009, as a lead attorney on the BakerHostetler team that serves as counsel to Irving H. Picard, SIPA Trustee for the liquidation of Bernard L. Madoff Investment Securities LLC, Deborah managed a team of attorneys in Picard v. JPMorgan Chase, which resolved in two settlements totaling $543 million for the SIPA Trustee and class action plaintiffs and which led to a $1.7 billion forfeiture to the United States Attorney's Office. In addition, Deborah has focused her efforts on enforcing the U.S. Bankruptcy Court's automatic stay and otherwise seeking injunctions to stop class actions and other cases from proceeding. Deborah's reported decisions include: 
  • Picard v. Fox, 429 B.R. 423 (Bankr. S.D.N.Y. 2010), aff'd, In re Madoff, 848 F.Supp.2d 469 (S.D.N.Y. 2012), aff'd, 740 F.3d 81 (2d Cir. 2014).
  • Picard v. Stahl, 443 B.R. 295 (Bankr. S.D.N.Y. 2011), aff'd, In re Bernard L. Madoff Inv. Sec. LLC, 2011 WL 7981599 (S.D.N.Y. Dec. 5, 2011), aff'd, The Lautenberg Found. v. Picard, 512 Fed.Appx. 18 (2d Cir. 2013).
  • Picard v. Maxam Absolute Return Fund, L.P., 460 B.R. 106 (Bankr. S.D.N.Y. 2011), aff'd, 474 B.R. 76 (S.D.N.Y. 2012).
  • In re Bernard L. Madoff, 477 B.R. 351 (Bankr. S.D.N.Y. 2012), aff'd, 2013 WL 551027 (S.D.N.Y. Sept. 30. 2013).
  • Recognition
  • New York Metro "Super Lawyer"
  • Memberships
  • American Bar Association, Section of Litigation Class Action and Derivative Suits 
  • International Association of Privacy Professionals 
  • Pro Bono
  • Deborah frequently works with Immigration Equality, helping gay, lesbian, transgendered and HIV positive individuals gain asylum in the United States.
  • She works closely with the Brooklyn Bar Association's Volunteer Lawyers Association, and has served on its Advisory Board.
  • Services
  • Appellate and Major Motions
  • Class Action Defense
  • Complex Commercial Litigation
  • Prior Positions
  • Fordham University Law School: Adjunct Assistant Professor of Class Action Law (2002 to 2006)
  • Admissions
  • U.S. Supreme Court
  • U.S. Court of Appeals, Second Circuit
  • U.S. Court of Appeals, Third Circuit
  • U.S. Court of Appeals, Fourth Circuit
  • U.S. Court of Appeals, Eighth Circuit
  • U.S. District Court, Southern District of New York
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Northern District of New York
  • New York
  • New Jersey
  • District of Columbia
  • Education
  • J.D., Harvard Law School, 1992, cum laude
  • M.A., Princeton University, 1987
  • B.A., The Johns Hopkins University, 1984, with honors

Kimberly Kalmanson

Kalmanson Law Office, PLLC

Kimberly Kalmanson is an attorney with a private practice in New York City. Concentrating her practice on business and commercial litigation and transactions, Ms. Kalmanson represents a variety of clients in commercial lawsuits, primarily involving contract, securities, and fraud disputes in both federal and state court, as well as before FINRA and the American Arbitration Association. 


Prior to establishing a solo practice, Ms. Kalmanson prosecuted and managed complex securities fraud cases against national and international companies and banking institutions on behalf of institutional investors at Labaton Sucharow LLP. There, Ms. Kalmanson’s primary focus was on residential mortgage-backed securities and the subprime mortgage lending and securitization industries. In addition, Ms. Kalmanson was primarily responsible for, and coordinated and managed multiple bankruptcy claims in a high profile federal bankruptcy. Before joining Labaton Sucharow, Ms. Kalmanson was an associate at Dentons US LLP (formerly, Sonnenschein, Nath and Rosenthal LLP and SNR Denton US LLP) where her practice focused on complex civil litigation, as well as white collar criminal and government investigations work. At Dentons, Ms. Kalmanson represented banks, institutional lenders and insurance companies in a variety of suits arising out of defaulted and distressed assets. Ms. Kalmanson has represented a variety of clients in breach of contract and fraud actions. One notable matter involved obtaining a $76 million summary judgment award on behalf of a European banking group in a suit in in New York federal court against loan guarantors, a judgment that was affirmed on appeal to the U.S. Court of Appeals for the Second Circuit. In addition, Ms. Kalmanson represented an insurance carrier in a suit to adjudicate the obligations of a financial institution managing a reference pool of assets underlying a series of credit swap transactions. Ms. Kalmanson has also represented a variety of institutions and individuals in government and internal investigations.


Catherine L.

This was a very thorough discussion of topics in structuring class action settlements including the ethical issues.

Rob A.

Great class, very informative.

Nina D.

Great program, effective speakers.

Stacie F.

This course was phenomenal

Jim T.

I do appreciate that there was both a defense counsel and a plaintiff's counsel in the discussion.

Richard S.

Well done

Teresa Y.

Good coverage of topic. I particularly liked receiving info and case cites re circuit splits. Speakers were engaging.

Jesse B.

The instructors did a good job of summarizing complicated ethical issues succinctly.

John K.

Interest and relevant excellent program

James F.

Fascinating content, energetic presentations by both speakers, very comprehensive and helpful to me. Thank you!

Jeffrey D.


Derek R.

Well framed conversation and helpful citations

Paul A.

This was an excellent program. Very well done

Merrick W.

Good, balanced overview.

Ashley A.

Good MCLE!

Jeffrey V.

Just the right balance for an intermediate level course.

Kevin C.

Interesting presentation

David G.


Corinne C.

excellent and informative course

Robin E.

Great information, some of which would be useful outside the class action setting.

Carolyn D.

Glad to see bad behavior adjudicated.

William F.

Very good presenters!

David E.

This program was really on point for me

William D.

Solid course; very informative.

Michael G.

Overall good

Kenneth F.

This is an important topic. Thank you for taking the time to address it in this course.

Silver E.

thank you.

Raymond D.

Great presentation. Documents were also very good.

Gerald C.


Dorothy L.

Great program!

Rondal M.

The presenters did a great job of trying to portray low damage class actions as being compatible with the concept of ethical practice of the law.

Dave D.

Complex stuff

Andrea N.

one of the best on line courses I've taken

Trudi L.

Very well done

Eric P.

Could use more on ethical pitfalls to avoid and or best practices.

Elizabeth S.

Very informative.

Corey E.

Thank you

Stephen E.

Excellent slides...which can be used later.

James M.

very thorough, and they presented the material well

Kenneth R.

Great program. Fabulous presenters and lots of information in an easy to follow informative presentation.

Joy A.

great presentation

Amanda R.

Liked the two-person panel.

Timothy P.

I found it very informative.

Kory S.

This is an excellent presentation, an exemplary model for how to weave together ethical and substantive issues.

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