Class Actions, Mass Torts and Insurance Litigation

O’Melveny’s Class Actions practice has unparalleled experience defending class actions and other aggregated litigation. Over the past 30 years, we have defended hundreds of class actions, state attorney general actions, and individual personal injury suits in federal and state courts across the country.

Class Action Pioneers. While many law firms claim class action experience, O’Melveny has pioneered the area that has come to be known as “class action law.” For example:

•  In the mid-1980s, we persuaded the DC Circuit to adopt the critical defense concept of “classwide proof”—i.e., the requirement that a class can be certified only upon a showing that the evidence that would be presented by both sides in a class trial would be simultaneously applicable to the claims of all class members—in the landmark case, Walsh v. Ford Motor Company, 807 F.2d 1000 (D.C. Cir. 1986).
• In In re Bridgestone/Firestone Tires Prods. Liab. Litig., 333 F.3d 763 (7th Cir. 2003), we persuaded the Seventh Circuit to issue an injunction prohibiting relitigation in state court of a federal court order denying class certification—the first time a federal court had ever held that a class certification decision has preclusive effect against subsequent motions for class certification in state court.
• For more than a decade, we have been among the leading proponents in expanding the use and application of the “no injury” doctrine, which holds that a plaintiff fails to state a legally cognizable injury when he or she is merely seeking recovery for the alleged heightened risk of physical or economic injury.
• We were instrumental in the passage of the Class Action Fairness Act (CAFA). After several years of working closely with members of Congress and their staffs on developing class action reform legislation, we were at the forefront of the efforts in late 2004 that broke the logjam in the Senate and led to passage of the Class Action Fairness Act.
• Members of our team frequently serve as authors for amicus curiae briefs filed by groups such as the US Chamber of Commerce, the Products Liability Advisory Council, the Alliance of Automobile Manufacturers, America’s Health Insurance Plans, the Washington Legal Foundation, the Securities Industry Association, the American Benefits Council, the ERISAIndustry Committee, and the National Conference of Insurance Legislators.
• O’Melveny is one of the only firms in the country that has successfully tried multiple class actions. Our trial experience provides an important strategic benefit at every stage of the case from conducting discovery and factual development with an eye towards what is needed to win at trial to fielding experienced teams that understand how to win in front of juries.

Beyond Class Actions. Our experience is not limited to class actions. The class-action plaintiffs’ bar has responded to defense-friendly developments in class action law by using non-class devices such as mass joinder actions, class arbitrations, state attorney general and private attorney general actions, and other tactics designed to avoid the due-process protections of class action procedure. In response, we have met the plaintiffs’ bar at every turn, often establishing new precedents along the way.

• In Janssen Pharmaceutica, Inc. v. Bailey, 878 So.2d 31 (Miss. 2004), we helped put an end to the phenomenon of “mass actions” in Mississippi, where for years plaintiffs’ attorneys had joined together numerous plaintiffs with unrelated claims in an effort to force defendants to the settlement table by making a reasonable adjudication of the merits impossible.
• On behalf of Exxon Mobil, we led an industry-wide effort to seek US Supreme Court review of the West Virginia Supreme Court’s decision to approve a mass trial involving approximately 8,000 plaintiffs alleging exposure to asbestos and hundreds of defendants under the state’s special mass litigation rule. The case settled on terms favorable to the defendants before the US Supreme Court could hear the case.
• In recent years, state attorneys general have brought civil actions against corporate defendants at an unprecedented rate. We are defending companies such as Bank of America, Johnson & Johnson, and Merck against a number of state attorney general actions throughout the country, have developed strategies for defending against such suits on the ground that they are unconstitutional, and have written and spoken extensively about the need for reform in this area. We are also challenging the authority of state attorneys general to hire private counsel to bring consumer protection suits.

Mass Torts and Individual Suits. We also bring our experience and skills to bear in defending mass torts, acting as coordinating counsel in “bet the company” litigation involving hundreds or even thousands of individual suits.

• We have extensive experience serving as law and motion counsel in individual personal injury trials for clients such as ExxonMobil, Johnson & Johnson, and Merck. In this capacity, we have taken the lead on record preservation and the preparation and argument of pretrial and trial motions, motions for directed verdict, evidentiary objections, and jury instructions.
• We advocate groundbreaking punitive damages strategies and have reduced our clients’ exposure to punitive damages awards dramatically. In the Exxon Valdez litigation, we persuaded the US Supreme Court that the US$2.5 billion in punitive damages awarded to victims of the Exxon Valdez oil spill by the US Court of Appeals for the Ninth Circuit was excessive as a matter of maritime common law. In a 5-3 decision, the Court held that the award should be limited to an amount equal to the compensatory damages, and therefore reduced the punitive damages award to approximately US$500 million, the District Court’s calculation of the total relevant compensatory damages. The Court’s reasoning may have far-reaching impacts on future punitive damage awards.
• We regularly appear before the Judicial Panel on Multidistrict Litigation (MDL) and have substantial experience coordinating mass tort litigation pending around the country in a single proceeding, thus facilitating the management of large-scale proceedings. We regularly serve as national coordinating counsel for clients such as Merck and Ford Motor Company.

Insurance and Reinsurance. O’Melveny’s Insurance and Reinsurance practice combines over 75 years of experience with forward-looking innovation. We provide litigation, arbitration, and transactional services to such notable insurance companies as ACE, Resolute Management, CIGNA, XL, MunichRe, Northwestern, Royal, State Farm, and Zurich.

• We were named "Insurance Practice of the Year (Insurer category)" at Chambers USA’s Awards for Excellence 2010.
• Chambers USA 2010 ranks our Insurance and Reinsurance practice among the best in the country. Chambers cites sources that state O'Melveny has "first-rate attorneys who excel at reading a judge," and that "in terms of skill, they [O'Melveny] are at the top of the heap." Partners Martin Checov and Richard Goetz are recognized as leading lawyers.
• Our team handles disputes involving insurance company coverage practices and resinsurance claims, such as our representation of Zurich in a jury trial against a disputed coverage claim filed by Silverstein Properties Inc. for more than US$1.13 billion in coverage for the World Trade Center in the aftermath of September 11. We also handle regulatory issues, ERISA issues, mutual funds, securities, and criminal defense.
• We represent clients worldwide under various international arbitration regimes, such as the English Arbitration Act and AAA rules, and have achieved success in almost every international procedural and industry setting.
• Our regulatory litigation work includes state commission insurance hearings related to hostile takeovers, constitutional challenges to state laws and regulations, and voter-passed initiatives.
• On the transactional side, we address insolvencies, liquidations, and financially distressed situations for insurers and reinsurers. Our recent experience includes the restructuring of two major insurance companies.