CD: How would you characterise class action activity over the past 12 months? What factors have generally been driving claims?

Kcehowski: Class action activity in the US has generally grown in each year of the past decade, and 2018 was no different. The past 12 months saw increases in class actions related to banking and structured financial products, insurance, cyber security, healthcare and pharmaceuticals, employment disputes, manufacturing and products liability, and consumer protection. There are many factors driving these increases. There continue to be monetary incentives under the Federal Rules of Civil Procedure, particularly Rule 23(h), and state equivalents, for class counsel to conceive of and pursue inventive class-based claims. Other driving factors include increasing electronic access to public and consumer information, as well as advances in technology. Cryptocurrencies, for instance, have resulted in new securities class litigation. Additionally, the US Supreme Court has consistently shown interest in class issues lately, including questions about the timeliness of class claims in China Agritech v. Resh, state court jurisdiction over securities actions in Cyan, Inc. v. Employees Retirement Fund and class arbitration in the labour context in Epic Systems v. Lewis. Important questions about class settlement fairness are also before the court in Frank v. Gaos.

Jan-Mar 2019 issue

Jones Day

Kelley Drye & Warren LLP

Kirkland & Ellis LLP

Tucker Ellis LLP