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How to effectively manage up in a crisis situation

Author(s): Craig Lockwood

Jul 6, 2016

It’s critical for counsel to ensure their organization is prepared for potential class actions – before they become a reality. Proactive preparation through pre-planning, socialized best practices and tested protocols will not only help you respond effectively on behalf of your organization, but will also enable you to handle the crisis internally so senior management and the board are well-informed and confident in the strategy you have developed.

This reference guide offers the checklists you need to make sure you’re ready for all possible eventualities. For more detailed information and to access additional resources, visit Osler’s Brief the Board series.

Prepare for a Class Action before it happens

  1. Establish document retention protocols
  2. Establish communication protocols in the event of a “crisis”
  3. “Know your network” (suppliers, service providers, etc.) and manage potential exposure
  4. Insurance considerations
    • Limits & coverage
    • Claims response
    • Scope of Coverage
    • Exclusions

Best practices for communication when it happens

  • Debrief right away
  • Know the limit, play within It
    • Determine settlement authority for fast moving negotiations
  • Introduce external counsel
  • Frequent & consistent communication
    • With board, senior management, internal and external stakeholders
  • PR training

     

 

What do you need to do when you get served?

1. Preliminary assessment: Getting a handle on your claim

  • Determine the scope, size, jurisdictions and parties

2. Initial Steps:

  • Contact insurers
  • Retain counsel
  • Internal fact finding
  • Document retention/collection

3. Assessing Potential Liability

  • Analyze:
    • The merits of the claim & “legal” considerations
    • Plaintiff’s position
    • Public disclosure obligations
    • Reporting obligations to regulators
  • Act:
    • Joint defence agreements with co-defendants?
    • Third party claims?
    • Timing of defences (pre or post-certification)?
    • Expert retention?

4. Certification:

  • Consider:
    • Class
    • Forum
    • Competing claims
    • Settlement position pre-certification and post-certification

5. Post- Certification:

  • Merits hearing and timing

6. Managing your business:

  • Internally:
    • Financial reporting
    • Internal communications to employees
    • Implications for other jurisdictions (if applicable)
    • Insurance costs moving forward
  • Externally:
    • Relationships with third parties
    • Impact on goodwill
    • Relationship with regulator

 

Download PDF: Brief the Board: Class Actions - Effectively manage up in a crisis situation

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