The Federal Trade Commission
and
The Georgetown Journal of Legal Ethics
Present A Workshop:

Protecting Consumer Interests in Class Actions

 

The materials linked from this page were submitted by panelists in advance of the workshop
and do not necessarily reflect the views of the Commission,
any individual Commissioner, Commission staff, or the Georgetown Journal of Legal Ethics.
To view a submission, click on the panelist's name, or — in the case of multiple submissions — click on the title.

Monday, September 13

8:00-8:45 Registration

9:00-9:15 Opening Remarks – FTC Chairman, Deborah Platt Majoras


9:15-10:45 Panel #1: The Use of “Coupon” Compensation and Other Non-Pecuniary Redress

Topics to be covered include:

  1. when and under what conditions are non-pecuniary settlements appropriate, and adequate to redress consumer harm;
  2. coupon settlements – redemption rates and empirical data (e.g., what data on redemption rates is currently available? if there is a lack of good data, what institutions/sources are likely to have better data? given its unique focus and information-gathering resources, what data should the FTC be seeking?);
  3. injunctive only relief;
  4. issues attendant to use of discounts, rebates, and free product vouchers;
  5. cy pres payments; and
  6. role of third-party market makers.

Moderator: John T. Delacourt, Chief Antitrust Counsel, Office of Policy Planning, Federal Trade Commission

Panelists:

10:45-11:00 Break

11:00-12:15 Panel #2: Tools for Ensuring that Settlements Are “Fair, Reasonable, and Adequate”

Topics to be covered include:

  1. role of third-party objectors/amicus - do they add value or simply increase cost?;what, if any, effect will Devlin have?
  2. do bad cases lead to bad settlements? has Rule 23(f) served as an effective safety valve? second opt-out – ultimate fairness or threat to global peace? what else can be done?; and
  3. is the increasing practice of creating a common fund and then requiring defendants to pay class counsel fees separate and apart from the common fund (as opposed to some percentage of the common fund) a positive or negative development for consumers?
Moderator: Robert Frisby, Assistant Director, Enforcement Division, BCP, Federal Trade Commission

Panelists:

    • The Honorable Diane Wood, United States Court of Appeals for the Seventh Circuit
    • Ann C. Yahner, Administrative Law Judge, District of Columbia Office of Administrative Hearing
    • Samuel Issacharoff, Harold R. Medina Professor in Procedural Jurisprudence, Columbia Law School
    • Brian C. Anderson, Partner, O’Melveny & Myers, L.L.P.
    • Neil M. Gorsuch, Partner, Kellogg, Huber, Hansen, Todd & Evans, P.L.L.C.
    • Arthur H. Bryant, Executive Director, Trial Lawyers for Public Justice

12:15-1:45 Lunch

1:45-2:45 Panel #3: Clear Notices, Claims Administration and Market Makers

Topics to be covered include:

  1. Use of plain English, the Internet, email and other devices to ensure meaningful notice and encourage class participation;
  2. Role of advocacy groups in getting the word out, supplementing notice, encouraging and discouraging class participation;
  3. Do third party market makers actually bring cash value to the class, how do market makers value coupon settlements and to whom do they report to or are they responsible?;
  4. Do claims fling services increase the value of the settlement due to higher response rate or do they add to costs for consumer recovery?

Moderator: Adam B. Fine, Attorney, Enforcement Division, BCP, Federal Trade Commission

Panelists:

2:45-3:00 Break

3:00-4:30 Panel #4: Class Action Attorney Fees: Compensating Lawyers While Protecting Consumers

Topics to be covered include:

  1. empirical studies on class action attorneys’ fees - what does the data show?;
  2. the special challenges in determining reasonable attorneys’ fees presented by non-pecuniary settlements and settlements where the total payment to the class depends on the number of class members who file a claim;
  3. Amended Rule 23 as relates to attorney fees - will it make a difference?;
  4. can innovative approaches to appointing and compensating class counsel, such as increasing competition for the position of class counsel (e.g., through the use of judicially-run auctions) or tying attorney compensation to the number of coupons redeemed, help prevent unreasonable fee awards?; and
  5. are blockbuster attorney fees a form of consumer harm in and of themselves?

Moderator: Patricia F. Bak, Attorney, Enforcement Division, BCP, Federal Trade Commission

Panelists:

4:30-5:30 Panel #5: Special Ethics Concerns in Class Action Litigation

Topics to be covered include:

  1. Ethical issues arise frequently in class action litigation, including with respect to conflicts of interest, solicitation, application of no-contact rule, the reasonableness of attorney’s fees, the attorney-witness rule, etc. But some contend that the ethics rules were not crafted with the unique aspects of the class action attorney-client relationship in mind. Is it time for a new ethics paradigm, or does it make sense to leave these issues to be resolved under class action law, i.e., the adequacy of representation requirement of Rule 23?

Moderator: Michael S. Frisch, Ethics Counsel and Adjunct Professor, Georgetown University Law Center

Panelists:

    • Geoffrey P. Miller, William T. and Stuyvesant P. Comfort Professor of Law, New York University School of Law
    • Brian Wolfman, Director, Litigation Group, Public Citizen
    • Lewis H. Goldfarb, Partner, Hogan & Hartson LLP
    • Roberta D. Liebenberg, Partner, Fine, Kaplan and Black, R.P.C.
    • Dr. John H. Johnson, IV, Senior Consultant, NERA Economic Consulting [#1] [#2]

Tuesday, September 14

8:00-8:45 Registration

9:00-9:15 Opening Remarks – FTC Commissioner, Pamela Jones Harbour

9:15-10:15 Panel #6: Empirical Analysis of Class Action Trends: Current Knowledge and Future Research Agendas

Topics to be covered include:

  1. valuation of class action settlements, including the role of response rates and reverter clauses vs. cy pres arrangements;
  2. studies on patterns of class action attorney fees
  3. post-judgment administrative reporting requirements, and transparency of information regarding the administration of redress programs (e.g., coupon redemption rates);
  4. the FTC experience with redress settlements (possibly including response rates and structural differences between Commission settlements and comparable private settlements; details TBD);
  5. how can the FTC best use the research tools at its disposal – including § 6(b) studies – to fill the knowledge gaps?; and
  6. Promising future research agendas.

Moderator: Todd J. Zywicki, Visiting Professor, Georgetown University Law Center

Panelists:

10:15–10:30 Break

10:30-12:00 Panel #7: Class Actions as an Alternative to Regulation: The Unique Challenges Presented by Multiple Enforcers and Follow-On Lawsuits

Topics to be covered include:

  1. the appropriate roles and interplay between government enforcement actions, private class actions, and private attorney general suits (such as the California 17200 actions);
  2. class actions as a way to enforce consumer protection and antitrust laws (e.g., under what circumstances do they succeed, and where do they fail?);
  3. minimizing duplicative efforts by federal enforcers, state enforcers, and private counsel;
  4. calculating fair and reasonable fees for private counsel in follow-on cases;
  5. the challenges of global settlements and release issues; and
  6. providing adequate redress to consumers.

Moderator: Lucy Morris, Attorney, Financial Practices Division, BCP, Federal Trade Commission

Panelists:

12:00-12:15 Closing Remarks – FTC Commissioner, Thomas B. Leary