Q&A: Protecting plaintiffs through class actions

Subscribe to Trial  or join AAJ now to read the article

Elizabeth J. Cabraser and Jonathan D. Selbin, both partners at Lieff Cabraser Heimann & Bernstein, have dedicated their careers to protecting consumers and ensuring that they have access to justice. Cabraser and Selbin discussed the world of class actions with Trial and offered their advice for other attorneys.

Q: What are the biggest pitfalls for attorneys in class action settlements?

JDS: There are many, but all can be avoided by keeping informed about the current rules and trends, and remembering a central principle: The interests of the class come first. If you do that, everything else will fall into place.

EJC: A common pitfall is inattention to details—the devil truly lurks there. We do not have unlimited leverage on the plaintiffs’ side, so we can’t always get everything we want. But we must try, try, and try again—in negotiations, in documentation, and in administration—to get what the class needs.

Q: What is the most surprising or unexpected thing that has happened to you in a class action?

EJC: A judge reversed herself, sua sponte, on a key pretrial ruling in an ERISA class action, stating that the first ruling was in error. I was pleased with this outcome, but more importantly, profoundly impressed by the intellectual integrity this demonstrated. I’ve tried to live up to this example.

Q: What are your top tips for new attorneys handling class actions for the first time?

JDS: Do your homework. Class actions are a specialized field with detailed rules governing the case and class counsel. Because everything you do ultimately is subject to public disclosure and rigorous review by a court, you better do it right. We are held to a higher standard, and we should be. The best way to get started is to partner with an experienced firm, which enables you to avoid common pitfalls.

EJC: I agree—it is best to partner with a more experienced firm. At least ask for help; it is out there, through list servers such as the AAJ Class Action Litigation Group, and the Impact Fund.

Q: You both have worked on a variety of high-profile class actions—from the Exxon Valdez oil spill to car defects to Whirlpool washing machines. Is there a common theme or strategy you have seen in successful cases?

EJC: It is difficult to deploy a common strategy, but there is one common rule of thumb: The merits matter. The worth of the case must be communicated to the court early on. This is necessary, though not sufficient, for class certification. There is no such thing as a bad case that is a good class action. Judges simply won’t devote the extra time, effort, and thought required if they are not persuaded that the underlying case is worthwhile. So, at the very first opportunity, you need to emphasize your case’s value, in terms of the interesting questions it raises, the compelling facts it involves, and the necessity or utility of the relief sought. Think of it in marketing terms: Judges have limited time and resources, so why should they invest these in your case?

JDS: It has to be about something that matters to real people. The good cases―like those you mention―involve real harms to real people: pollution that destroys the environment and wipes out small businesses, car defects that pose a safety risk, and products for which people pay their hard-earned money and that don’t work as promised. Those cases matter.

Q: What made you want to be a plaintiff attorney?

JDS: Our country has become rigged against average folks in so many ways. The legal system is supposed to be the one place where everyone is equal―blind justice. Yet, one of the things I saw when I worked as a judicial clerk was that, with very few exceptions, the plaintiffs were outgunned in terms of the quality and quantity of their legal representation. I decided that I wanted to try to level that playing field.

Q: What do you think is the biggest obstacle in the current legal landscape to plaintiffs achieving justice through class actions?

JDS: As in so many areas today, the legal system has become ever more beholden to the monied interests. It’s a different “golden rule”: Those with the gold make the rules. It has resulted in substantive and procedural changes to the law that are unfair to those trying to find justice.