What I Wish Every Class Action Attorney Knew From Day One | Scott Hardy

I couldn’t believe what they were telling me. Successful class action attorneys saying, “Mandatory arbitration clauses can’t be thrown out! Class actions are over!” That’s what I heard that day. 

These attorneys were freaking out in 2011 after we got an adverse Supreme Court ruling in AT&T Mobility vs. Concepcion that limited options on arbitration. Remember, this is just a few years after I started Top Class Actions and things were finally going pretty well. I thought I finally had something that could become a livelihood and that could grow. Now what?

I’ll never forget that phone call from one of the attorneys we had been working with just a month before. 

After the ruling, she told me the goose was cooked and that we were done. Gasp!

You probably figured out because you’re reading this story that the reports of the class action industry’s demise were premature. I wish I knew then what I know now. Dead ends rarely are what they seem in this industry. That wall you hit probably isn’t too high to climb. 

You got to persevere. 

So, there I was, freaking out in 2013 after hearing the business was kaput from a lawyer we had been having a great deal of success with. What the heck was I going to do?

About a month later, the same attorney calls me up calm and cool. 

“Hey, how are you doing?” I ask her. 

“Oh great! Let’s start this new case,” she says. 

“You told me last month that we were done, that we were cut off, end of the line,” I replied.

“Yeah, I was kind of freaking out. But, we figured out a new case theory on how we can make it work,” she said.

It wasn’t over. It rarely is really over. Even when it feels that way, the one thing I’ve learned is that as soon as one door closes for a class action, another opens.

You work in a field with really smart people. Defense lawyers are constantly thinking of new ways to get cases thrown out and plaintiffs’ lawyers are constantly thinking of new ways to get cases filed.

We see that a lot with mandatory arbitration clauses. A lot of time the mandatory arbitration clauses can make it really hard to proceed with a winning class action strategy, but then you start talking to other smart class action attorneys and they say, “Well, sometimes it’s possible to get a mandatory arbitration waiver thrown out using this or that tactic or technique.” It’s not easy, but there are options. 

It’s possible to make a mandatory arbitration waiver or mandatory arbitration clause so onerous on defendants, that they want to throw it out so that they can get everything settled at once.

That’s just one example, but it’s what I’d like everyone to know. If it looks like you’re hitting a wall, take a step back and take another look at it. There’s usually going to be another angle that you can use and still get the right verdict, or the right settlement, for your client.

Keep it up. Persevere.

I think if you have the case theory, there’s going to be somebody out there that it happened to. If you’re thinking, “You know what? This would make a great class action lawsuit,” more than likely, there is somebody out there that will be your plaintiff.

Try not to flip out when there’s a change in case law and all of a sudden you lose your typical route to settling or winning cases.

You’re super smart. No problem is too big for you. Just because the Supreme Court, or state courts, or somebody changes the law so you’re no longer able to win or settle your class action the way you have in the past, think it through, lean on your colleagues. 

You’ll figure it out. 

– Scott Hardy

Scott Hardy is President and CEO of Top Class Actions.