Ensuring the members of the class receive their share of the proceeds requires expertise in a unique and specialized universe of regulation and market factors, along with the management prowess to effectively marshal classes that can contain millions of members and distributions into billions of dollars.
For class action litigators, the hard work it takes to secure an award for their clients doesn’t end when the court signs off on a settlement agreement. Ensuring the members of the class receive their share of the proceeds requires expertise in a unique and specialized universe of regulation and market factors, along with the management prowess to effectively marshal classes that can contain millions of members and distributions into billions of dollars. Getting those funds in class members’ hands is part of an attorney’s fiduciary duty to clients—and that duty lasts until all settlement funds have been distributed so it’s critical to understand what happens following a settlement.
Not least among the important responsibilities for plaintiffs counsel is the selection of a settlement services bank and a claims administrator. The separate but closely related functions they serve assure that the funds remain secure until they have been effectively distributed. The settlement services bank, which maintains the escrow and distribution accounts, is critical not only to ensuring a smooth dispensation of the proceeds, but also to ensuring that the funds themselves remain secure throughout the time it takes to define the class and distribute the funds—typically from six months to as long as three years. Claims administrators, meanwhile, identify and notify individual class members and vet their claims to define the class and execute payments.
Judges expect to be assured that the class’s money will be safe. Increasingly, the courts are scrutinizing the costs associated with claims distribution. In this environment, plaintiffs attorneys must make careful, informed decisions throughout the escrow and distribution processes. Here are five things to consider before choosing which bank to work with throughout the settlement process:
Security. Courts expect high-level safety. Attorneys should ensure that the class’s settlement funds are held in investments backed by the full faith and credit of the U.S. government. Putting funds at risk through stock or corporate bonds is unacceptable, so settlement funds are deposited with banks that invest in U.S. Treasury Bills or offer deposit options with full and expanded FDIC coverage during the escrow period.
Yields. Being good stewards of class members’ settlement funds also means ensuring the settlement isn’t eroded by inflation during the settlement period or subject to other untenable costs. While protecting the settlement proceeds is the foremost priority, attorneys should also look for a bank that can deliver the highest returns without putting the principal at risk. The class members are entitled to any interest or other returns the funds generate, and the attorneys to any appreciation on their fees.
Experience. The best way to know that a bank can handle the complex process of settlement services is to look for a robust track record. The bank should demonstrate a history of accurate, timely, error-free execution through the escrow and distribution phases. That doesn’t ensure a settlement will be managed perfectly—even the cleanest settlement processes have their challenges—but it should give attorneys the greatest assurance that the class is in good hands.
Trust. For an attorney representing a large class it is paramount to make sure to deal with an institution and a team of trustworthy people. Given the high stakes of settlement services and the complexity of the process, experienced class action litigators tend to return to the same administrators and banks, partly because of their proven competency, but in principle because they trust the people at those organizations. Attorneys have a professional responsibility to deliver the settlement funds to the class members; they should have full confidence in all the players in that process.
Responsiveness. In addition to trusting every player in the settlement process, attorneys should know they’ll be able to reach the right person—including a bank’s decision-makers—when they need to. Working with a single point of contact is a signal that the bank is committed to its relationship with you through a highly personalized banking experience. In a complex process it’s vital to know exactly who will pick up the phone at the bank, and that the person who does will be familiar with the details of the account and have the expertise, flexibility and authority to work with you on custom solutions. Staying closely apprised of progress and getting speedy responses to questions and concerns—without having to repeat explanations or wonder whether a new person truly understands the intricacies of a case—are indispensable requirements, not options, for settlement services.
While class action litigators appropriately spend most of their energy focusing on winning cases, and a lot less thinking about what will happen if they win, for plaintiffs’counsel, the complexities and challenges don’t end after the court signs off on a settlement. The life cycle for settlement funds is complex, involving multiple players and sophisticated technology; it can also involve challenging legal issues. This list is a starting point to begin navigating the complexities by better understanding the process, knowing the players and making informed choices.
Francesca C. Castagnola is senior vice president for Western Alliance Bank, member FDIC, and manages the settlement services group. She focuses on the entire life cycle of large legal settlements, from escrow through distribution, and has banked some of the nation’s largest settlement funds.
Reprinted with permission from the “January 28, 2019 at 09:00 AM” edition of the “The Legal Intelligencer”© 2019 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 - [email protected]