My Class Action Checklist

Hon. Morton Denlow (Ret.) shares tips and best practices for thinking through the issues necessary to settle a class action case

Hon. Morton Denlow (Ret.)
Hon. Morton Denlow (Ret.)
JAMS Mediator, Arbitrator and Referee/Special Master

Published August 25, 2016

For a number of years now, I have enjoyed successfully resolving complex class action matters. The cases are challenging, the counsel astute and the results rewarding.

I developed a class action checklist designed to assist my clients in thinking through the issues necessary to settle their class action case. The use of this checklist and the process it requests of counsel has allowed me to expedite the settlement of class action matters.

I. Class Definition

A. Define the Class Period B. Define the Members of the Class C. Estimated Class size D. Possible sub-classes

II. Form and Scope of Release

A. Define claims to be released B. Claims raised in the complaint C. Other claims D. Identify parties to be released E. Exceptions to release, if any

III. Monetary Relief or Other Consideration

A. Fund Case

1. Payments to class 2. Cost of notice 3. Cost of administration 4. Attorney’s fees 5. Incentive award 6. Other

B. Non-Fund Case

IV. Reverter or No Reverter to Defendants

A. What happens to unclaimed funds B. Possible second round of distributions C. Setting a floor alternative

V. Cy Pres

A. What portion of unclaimed funds, if any B. Type of organization to receive funds

VI. Non-Monetary Relief

A. Stop existing practice B. New practices C. Agreement to make change D. Injunctive relief E. Other

VII. Administration

A. Third Party Administrator B. Party Administrator C. Costs – Out of Fund or an extra

VIII. Form of Notice

A. Are there lists or other means of class identification B. Mail C. Internet D. Publication E. Estimate of cost of notice F. Costs – Out of fund or an extra

IX. Claims Process

A. Claims Made

1. Estimated claims rate 2. Estimate of payment per claim

B. No Claim Necessary C. Pro rata distribution D. Tax treatment

X. Opt-Outs

A. Possible blow up provision in the event of ___% or ___ number of opt outs

XI. Possible Objectors – Anticipate issues

XII. Attorney’s Fees

A. When to discuss B. Amount – Percentage or Specific Number C. Past practice by Plaintiffs’ counsel

XIII. Incentive Award to Named Plaintiffs

A. When to discuss B. Amount C. Past practice by Plaintiffs’ counsel

XIV. Confirmatory Discovery

A. Is it necessary B. If so, what is the scope and methods of discovery

XV. Approval Process

A. Federal B. State C. Know Your Judge

XVI. Steps Necessary to Obtain Preliminary Approval by the Court

A. Settlement agreement B. Motion for preliminary approval C. Reference to the mediation


This has worked for a number of parties and I hope it works for you and your client. For more information or if you have any questions, please email


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