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When the class-action case does not settle

Plaintiff Magazine

January 2015

There was a time when it was virtually unheard of for a class action case to go to trial. They were, and to a large degree still are, notorious for settling, either before or after certification, but certainly before a jury or judge makes ultimate findings on the claims and defenses.  The reasons for this are manifold.  Class actions tend to be big cases, and the stakes are high for both sides. From the plaintiff’s perspective, it is extremely challenging to even get a class case certified, and they can be defeated pre-trial on the merits at the pleading or summary judgment stage.  From the defense perspective, providing class notice alone can be very undesirable, let alone the potential liability that could result if the class claims are ultimately successful.  The cases can also be complex and expensive for both sides, and involve many parties, making litigation burdensome.  Conversely, class settlements can be structured in a way that benefit the class members, while also providing defendants with certainty regarding the extent of their liability for particular conduct, while avoiding the risks, uncertainties, and expense of continued litigation.  These and other reasons make class cases conducive to settlement, and it is why it is a rare class case that goes to trial.

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