The “Gotcha” Game: Identifying and Mitigating the Class Action Exposure You May Not Know You Have

(802 Ratings)

Produced on: October 11, 2016

Course Format On Demand Audio

Taught by

Categories:

Course Description

Time 91 minutes
Difficulty Intermediate

Class actions can pose exceptional challenges and threaten extraordinary liabilities. Recently, defendants across industries have been bombarded by putative class actions that allege technical violations of obscure statutes that have uncapped statutory damages provisions. With these “gotcha” class actions on the rise, businesses need to know how to mitigate such risks through pre-suit compliance efforts and defeat such actions through cutting-edge defense strategies. In this course, members of Drinker Biddle & Reath LLP’s Class Actions team identify current and growing trends in “gotcha” class actions, including the explosion of litigation under federal statutes such as the Telephone Consumer Protection Act (“TCPA”), the Fair Credit Reporting Act (“FCRA”), the Fair and Accurate Credit Transactions Act (“FACTA”), and the Americans with Disabilities Act (“ADA”), and under state statutes such as the Illinois Biometric Information Privacy Act (“BIPA”) and the New Jersey Truth-in-Consumer Contract Warranty and Notice Act (“TCCWNA”). Drawing from their own experience and recent developments in the case law, partners Michael P. Daly and Kathryn E. Deal review the statutory bases for these actions, discuss common compliance pitfalls, and examine best practices for avoiding and if necessary defending such actions.


Learning Objectives:

  1. Identify current trends in “gotcha” class actions and the key provisions in the statutes at issue
  2. Review recent decisions applying and interpreting the relevant statutes
  3. Identify common compliance traps targeted by plaintiffs
  4. Examine best practices for avoiding or mitigating risk

Faculty

Michael P. Daly

Drinker Biddle & Reath LLP

Michael P. Daly defends class actions and other complex litigation matters, handles appeals in federal and state courts across the country, and counsels clients on maximizing the defensibility of their marketing and enforceability of their contracts. A recognized authority on class action and consumer protection litigation, he often speaks, comments, and writes on recent decisions and developments in the class action arena. 

Class Action Litigation. Michael regularly defends putative class actions involving issues such as advertising, labeling, privacy, telemarketing, billing, credit reporting, and debt collecting. He has extensive experience defending claims under the Telephone Consumer Protection Act, the Fair Credit Reporting Act, the New Jersey Truth-In-Consumer Contract, Warranty and Notice Act, and other federal and state consumer protection statutes. He routinely counsels clients on issues such as removing actions, compelling arbitration, enforcing class action waivers, coordinating multidistrict litigation, enjoining parallel proceedings, striking class allegations, opposing certification, negotiating settlements, designing notice and claims programs, and defending settlements from objections and attacks.

Appellate Litigation. Michael handles appellate matters in federal and state courts across the country, including amicus briefing in appellate and administrative proceedings. His work has resulted in rulings denying class certification, enforcing arbitration agreements, denying petitions to amend administrative rules to permit class actions, entering judgment notwithstanding a design defect verdict, absolving a manufacturer of successor liability, enforcing an exclusion of liability in an asset purchase agreement, and ordering new trials on damages and statute of limitations defenses, among others.

Consumer Contracts and Marketing. Michael routinely counsels clients on maximizing the defensibility of their marketing and the enforceability of their consumer contracts and dispute-resolution programs. A founder of Drinker Biddle & Reath’s TCPA team and the senior editor of its TCPA Blog, he provides practical advice on best practices for mitigating risk from contracting with and marketing to consumers. 

Public Interest Litigation. Committed to public service and civic participation, Michael has spearheaded matters meant to prevent racial discrimination, protect the rights of the disabled and incarcerated, prohibit the use of unverifiable voting systems, and preclude the misuse of our laws and abuse of our civil justice system. One of his most recent public interest engagements resulted in a landmark settlement that put an end to decades of discrimination by administrative agencies that had refused to make important information about public benefits programs available in alternative formats that were accessible to the blind and visually impaired. 

In General. Michael was a managing editor of the Villanova Law Review, a recipient of the Steven P. Frankino Distinguished Service Award, and a legal intern for the Hon. Dolores K. Sloviter of the U.S. Court of Appeals for the Third Circuit. He joined Drinker Biddle & Reath following a clerkship with the late Hon. James M. Kelly of the U.S. District Court for the Eastern District of Pennsylvania.

Kathryn Deal

Drinker Biddle & Reath LLP

Kathryn E. Deal is a partner at Drinker Biddle & Reath LLP. Kate’s practice focuses on class action defense and civil trial work.

Civil Trial Experience. Kate’s first and second chair trial experience includes a variety of complex commercial disputes. At jury trials, bench trials, and arbitration hearings, Kate has successfully represented corporate clients in the pharmaceutical, investment banking, manufacturing, and retail industries. She has tried matters to a favorable decision on claims of securities fraud, products liability, unlawful discrimination, unfair trade practices, and trademark infringement. Some of Kate’s notable trial victories include winning a jury verdict in federal court defending a manufacturing company on claims arising under federal anti-discrimination law; winning a jury verdict in federal court on behalf of a national association of colleges and universities on claims of disability discrimination; winning a jury verdict in state court rejecting product liability claims asserted against a medical device manufacturer; and winning a post-hearing arbitration award rejecting several multimillion-dollar claims, including fraud claims under the federal securities laws, on behalf of a leading global investment bank. Kate also has defended pharmaceutical companies at bellwether trials in mass tort programs and in post-trial appeals. 

Class Action Defense and Business Disputes. Kate defends companies in putative class actions and business disputes. Having served on a team of national coordinating counsel for a large oil and gas producer, Kate has experience managing and developing strategy for concurrent class, mass, and individual actions and arbitrations in a variety of jurisdictions. She handles consumer disputes involving alleged product defects and sales/marketing practices, and she has defended companies in shareholder litigation and in putative class actions arising under federal and state RICO statutes and anti-discrimination legislation. Kate sees clients through all aspects of class action practice, including removal, merits strategy, compelling individual arbitration, phasing discovery, and opposing class certification. In addition, Kate has published articles and spoken on the development of privacy-based class actions relating to the collection, storage, and use of biometric data.

In General. Kate was recognized as a “Future Star” in the 2015 edition of Benchmark Litigation. In 2014, she graduated from the core class of the LEADERSHIP Philadelphia program, which is dedicated to mobilizing talent in the private sector to serve the community. Currently, Kate is a member of the Leadership Council of Community Legal Services of Philadelphia. Prior to joining the firm, Kate received her bachelor’s degree in English, magna cum laude, from Cornell University. She earned her J.D., cum laude, from Georgetown University Law Center. From 2005-2006, Kate served as a law clerk to the Hon. Robert B. Kugler, United States District Judge for the District of New Jersey.

Reviews

WM
Walter M.

A difficult subject to cover in a short period of time. The lecturers did well.

JD
Jeff D.

What an eye opener!

JS
Jason S.

Presenters were terrific, thank you

SW
Samuel W.

good overview

JR
Jake R.

Good course. It enlightened me to an area of law I didn't know much about.

GP
Gregory P.

very very good

KP
Katherine P.

VERY INFORMATIVE!

BP
Benjamin P.

Thorough and comprehensive.

NS
Nicholas S.

One or the more interesting lectures - thanks!

MM
Michael M.

Very high quality presentation.

JB
Julie A. B.

An effortless parade of best practices for circumventing or mitigating risk.

AO
Adele O.

Very interesting program. Good use of visuals (transcripts, etc.)

PF
Peter F.

Excellent CLE - I was delighted to see my fellow Villanova Law alum providing an outstanding period of instruction on class action avoidance, and his colleague Kathryn Deal was outstanding as well. Well done!

FM
Fred M.

This court took me back to law school and class actions under the Federal Rules

LS
Leonard S.

Hope they have a part 2 of this. Really offered some well thought out and practical information

GW
Guion H. W.

Excellent presentation.

WH
William H.

Solid presentation. Covered the topic well.

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