2013 Litigator's Forum on April 23, 2013
By Robyn Crowther
The 18th Annual WLALA Litigators Forum, featuring titans of the profession and addressing some of the most pressing issues in litigation practice, will take place on April 23, 2013 at the Westin Bonaventure hotel in downtown Los Angeles. This year’s forum is entitled Resolutions: Getting the Results Your Clients Want. The two-part program will address strategies for obtaining the best outcomes in two phases of the litigation process. The first part of the Forum will be a panel discussion on settlement negotiations and agreements entitled Beacons, Winklevosses and Rakoffs: New Issues in Settling Complex Cases. The distinguished panel, sponsored by SWAIM390, will include Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals, Debra Wong Yang, partner at Gibson, Dunn & Crutcher, LLP and Michael H. Page, partner at Durie Tangri LLP. Alison Frankel who writes the “On the Case” newsletter for Thomson Reuters and has covered big-ticket litigation for more than 20 years will moderate the panel.
In recent years, courts have struggled with settlements of class actions where economic damages are negligible or non-existent. Cases based on alleged invasion of privacy rights through data collection or sharing, for example, may have the potential for large statutory damage awards but the harm suffered by class members is not always readily apparent. Mr. Page litigates these cases for many internet and technology companies such as Google, Yelp! and Pandora and will talk about negotiating settlement agreements that will satisfy the concerns of judges tasked with evaluating the fairness of agreements that will bind absent class members.
The Ninth Circuit reviewed such a settlement in Lane v. Facebook, Inc., which considered the resolution of claims based on Facebook’s “Beacon” program that reflected actions Facebook members had taken on other websites on their Facebook page. The Ninth Circuit panel affirmed the District Court’s approval of the settlement whose primary remedy was a cy pres award and payment to plaintiffs’ counsel. In February 2013, the Ninth Circuit denied en banc review of the panel’s order. Judge Kozinski (along with Judges O’Scannlain, Bybee, Bea and Ikuta) joined in the dissent to the denial of the petition for rehearing authored by Judge Milan Smith which argued that the settlement failed to adequately safeguard the interests of the class. These issues are sure to surface in other cases and our panel will discuss best practices for negotiating settlement agreements that will survive court scrutiny.
Judge Kozinski also wrote the opinion in The Facebook, Inc. v. Pacific Northwest Software, Inc. in 2011 where Tyler and Cameron Winklevoss sought to unwind a settlement agreement with Mark Zuckerberg and Facebook based on claims that they were misled during settlement negotiations about the value of Facebook’s stock. When cases settle in the early stages, buyers’ remorse or legitimate concerns give rise to second thoughts about the deal. Judge Kozinski’s opinion has already been cited 18 times, including in the Ninth Circuit’s recent decision in the long-running dispute over certain elements of the Superman characters and stories.
In cases where administrative, criminal and civil proceedings arise out of the same set of facts, some judges have taken a hard look at negotiated resolutions. Judge Jed Rakoff of the Southern District of New York, for example, rejected a settlement of an SEC enforcement action where the responding party neither admitted nor denied liability. His decision is on appeal to the Second Circuit which recently held oral argument on the issue. Debra Wong Yang regularly handles large cases with civil, administrative and criminal implications and handled them in a different capacity when she served as the United States Attorney for the Central District of California. We anticipate a spirited discussion facilitated by Ms. Frankel on these current topics.
After a cocktail reception generously sponsored by Bank of the West, there will be a plated dinner including a keynote address sponsored by Kurtzman Carson Consultants (KCC). Michael Schwartz, Esq., founder of Trial Advocacy Group, LLC, will present his program entitled The Art of Oral Advocacy which is a unique, multimedia program that covers oral advocacy techniques for attorneys. Video excerpts from historic speeches are discussed and analyzed throughout the program, including speeches from the Civil Rights Movement of the 1960s, World War II, American Presidential Campaigns, and the Cold War. The audience will learn tools to: (1) deliver powerful oral arguments, (2) make persuasive presentations to judges, juries and clients, and (3) deliver motivational presentations in any context. Mr. Schwartz is a trial attorney with more than 200 jury trials to verdict. A frequent lecturer on trial advocacy skills to groups across the country, Mr. Schwartz has, for more than a decade, spoken at the State Bar of California’s annual meeting and provided instruction for the Los Angeles County Bar Association’s Trial Advocacy Project (the “TAP Program”), where civil attorneys learn how to try criminal cases and serve as pro bono prosecutors.
Pricing and sponsorship information are available at www.wlala.org or by emailing firstname.lastname@example.org. We look forward to an interesting exchange of perspectives on issues litigators face in their daily practice.
Robyn Crowther is the Litigation Section Co-Chair. Ms. Crowther is a shareholder at Caldwell Leslie.