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JAMS ADR Insights

Class Action & Mass Tort

Morton Denlow's Class Action Checklist

I recently completed my 10th year at JAMS. During that time, I mediated more than 250 class action cases. For these types of cases, I require parties to complete and exchange a class action checklist prior to the mediation, along with their mediation statements and settlement proposals.

I recently updated the checklist, and I want to it share with you so you can experience the benefits when mediating your class action cases.

Why Use the Checklist?

I believe it is necessary to know certain basic facts before you can have a meaningful settlement discussion. Agreeing on a class definition, the class size, the form and scope of the release and the settlement structure (common fund or claims made) are components of any class settlement. Asking parties during the initial conference call whether they have sufficient information to complete and exchange their class action checklists before the mediation enables me to determine whether the case is ready to be mediated. If parties do not have the requisite information, then the case is probably not ready for mediation. Focusing on dollars alone, and not completing the checklist, is a recipe for a failed mediation.

The checklist forces the parties to answer the key questions necessary to settle a class action case and helps define the areas of difference. By requiring the plaintiffs to set forth their positions and giving the defendants an opportunity to respond in the same document, the parties are able to identify areas of agreement and disagreement. Therefore, in the course of the mediation, I am able to work to resolve both the structural and monetary issues at the same time.

My goal is to turn the class action checklist into a settlement term sheet by the conclusion of the mediation. During the mediation, the parties will continue to exchange redline checklist changes following my separate caucuses until agreement is reached on both the structure and the dollars. At the end of the mediation, the parties can add the case caption to the top of the document, change the title and place signature lines at the end. If the mediation is successful, they can leave the mediation with an executed term sheet to assist them in preparing their long-form settlement agreement and motion for preliminary approval.

If you have not already used my checklist, I suggest you try it. You may like it. If you would like an editable version of the checklist, please contact my case manager, Deb Stewart, by clicking the link at the top of my bio.

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