Class actions are lawsuits that enable multiple similarly situated litigants to appear as plaintiffs or defendants and litigate their case in in a single court to promote efficiency, judicial economy and fairness.
In State and Federal Courts nationwide, one or more class members can sue or act as a representative party of all class members. The law provides class representatives can file and maintain a class action only if the case meets the following requirements of numerosity, commonality, typicality and adequacy of representation:
In addition to confirming that each of these requirements is proven, the court must determine that common questions of fact or law for all class members outweigh their potential differences and predominate over the individual claims, and that a class action is a superior way to fairly and efficiently resolve the legal issues.
After certifying the case as a class action, the court can require class representatives to notify class members of the pending case and their rights (from which they can exclude themselves). If a class member does nothing, they are bound by the result of the class action lawsuit.
Complex multi-jurisdictional disputes involve legal proceedings occurring in multiple jurisdictions (national and international).
Multi-jurisdictional disputes are part of the complex litigation category. The complexity of these disputes results from the need to coordinate and manage multiple procedural laws and rules across different jurisdictions.
International litigation is becoming increasingly present in today’s global economy. Companies do business with each other internationally, which can result in complex multi-jurisdictional conflicts. The most common international disputes involve international banking, trusts, offshore accounts, foreign bank account reporting, anti-money laundering, source of income cases, etc.
Earl is a distinguished class action and complex multi-jurisdictional mediator with years of experience.
Litigation can be expensive and arduous, regardless of the complexity of your case. That is especially the case with class actions and complex multi-jurisdictional disputes.
Given the complexity of class actions and international disputes, the costs can reach astronomical figures. Furthermore, the litigation can last several years or even decades because of different procedural rules, multiple participants and appeals. Most importantly, these disputes can ultimately end up being “Bet Your Company” cases, the outcome of which is not best left in the hands of a judge or jury.
Mediation is a time and cost-effective alternative dispute resolution method. In contrast to uncertain, risky, lengthy and costly litigation, mediation appears as the right tool for resolving class action and complex multi-jurisdictional disputes in a voluntary, confidential, businesslike, logical and rational manner utilizing self-determination.
Mediation is confidential, meaning everything disclosed during the process will remain private. Confidentiality plays a critical role in international business disputes across different jurisdictions. The same applies to class actions, given how many people’s personal information is at stake. Mediation is flexible. It allows the parties to seek creative “Win-Win” solutions to a high stakes complex dispute.
As in traditional mediation of individual disputes, the mediator in class action and complex multi-jurisdictional mediation must remain neutral since party self-determination is crucial to the mediation process. The mediator does not represent either party or give legal advice but may propose voluntarily creative alternative solutions that may be acceptable to both parties. A mediator cannot force the parties to resolve their dispute but rather facilitates negotiation and self-determination by helping the disputed parties find common ground.
Mediation is a voluntary process and occurs in stages.
The mediator has no authority to make a binding decision unless both parties specifically agree to give the mediator that power. The mediator is a former judge, attorney, or neutral professional with experience in complex civil matters, such as class actions and cases that involve different jurisdictions. In a mediation, the parties meet remotely via the internet or in person. The mediator makes an opening statement, the parties then each make uninterrupted opening statements and a joint discussion may occur. Thereafter, the parties are separated into private rooms and the mediator conducts private caucuses and shuttle diplomacy, which may lead to another joint negotiation session being conducted. Once the parties have agreed to all material settlement terms and the parties have cooperatively drafted a voluntary binding joint settlement agreement, the successful mediation is concluded.
An individual case is much different from a class action case, both from a litigation and mediation prospective. A Class Action Case is multifaceted, multi-jurisdictional, emotionally draining, procedurally complex, exceptionally time consuming and extremely expensive for all parties involved. Class Action litigation generally has four stages: Pre-Certification Discovery, Certification, Resolution, and Notification. Generally, the best time for a class action mediation to occur is after some pre-certification discovery has taken place but before the court has issued a decision on the Motion for Class Certification. This is significant and potentially dispositive Motion that is not available in individual litigation. In contrast, the best time to conduct a mediation an individual case is after all discovery has been completed and after the parties have filed their motions for summary judgment but before the court has issued a decision on these motions.
The parties and their attorneys generally attend all stages of an individual case mediation, including the initial joint session and all private sessions/caucuses. However, the number of people attending the specific stages of a class action mediation can vary in number based upon the desires and agreement of the parties. In class action mediations, the named plaintiff/purported class representative may or may not attend the initial mediation stages or opening statements, but rarely attend the subsequent mediations stages (joint discussions and private mediation caucuses). Typically, class counsel attends all mediation stages alone and acts as the sole initial decision-maker on behalf of the named plaintiff and purported class members as class counsel owes a fiduciary duty to them, which is closely scrutinized by the court. The remaining class members (tens, hundreds, or even thousands) do not attend the mediation. Often, the mediator may begin the class mediation process with an open joint session because class attorneys have already exchanged statements and detailed settlement proposals outlining their legal, factual and settlement positions. Thereafter, private caucuses usually are very helpful in exploring creative alternative approaches, proposals and counterproposals to resolve the entire class action. Also potential compensation for class counsel cannot be discussed, negotiated or agreed upon until after the parties have tentatively agreed upon a resolution of all other class issues such as class notice, administration of class benefits, benefit/compensation for the class members and the named class representative and similar class related issues.
Upon completion of a successful class action mediation, the parties sign a tentative class settlement agreement which must be approved by the trial court (and potentially an appellant court) as being fair and reasonable at a public “fairness hearing”. Once final court approval is obtained, the settlement is an enforceable court order which often is implemented by a third party administrator under court supervision.
As a certified Maryland Circuit Court mediator, Earl J. Acquaviva Jr. has served clients in Baltimore City, Baltimore County, Anne Arundel County, Cecil County, Howard County, and Montgomery County since 2012.
Earl has successfully mediated negotiated and administered numerous of class action cases and complex multi-jurisdictional disputes during his legal career. With nearly four decades of nationwide class action and complex multi-jurisdictional dispute experience, Earl can help you negotiate your case in a fair and neutral environment and help you achieve mutually beneficial outcomes on an efficient and cost effective basis.