• Grand Strategy and Class Actions
  • May 26, 2010 | Author: Andrew J. Trask
  • Law Firm: McGuireWoods LLP - McLean Office
  • What is grand strategy? It's a term that's usually thrown around in military, security, and foreign policy circles. As the military historian Liddell Hart defined it in his classic book Strategy:

    [T]he role of grand strategy - higher strategy - is to co-ordinate and direct all the resources of a nation, or band of nations, towards the attainment of the political object of the war - the goal defined by fundamental policy.

     ...

    while the horizons of strategy is bounded by the war, grand strategy looks beyond the war to the subsequent peace. It should not only combine the various instruments, but so regulate their use as to avoid damage to the future state of peace - for its security and prosperity.

    What does this mean for class actions? It means that often, the best defenses against a class action don't involve a specific lawsuit. Instead, they involve larger policies and strategic decisions. For one thing, it is possible to have a firm-specific (or client-specific) "grand strategy" for fighting class actions. The most obvious grand-strategic move is one that law firms sell to clients all the time, a compliance policy. If a corporation has a robust compliance policy, it is less likely to get sued for breaking the law.

    But some corporations are just located in industries where they're more likely to be sued in class actions. A corporation like that might decide that part of its grand strategy will be to oppose every class action on Rule 23 grounds and settle class actions where the plaintiff has a valid claim on a named-plaintiff basis. Its goal over time could be twofold: (1) build a reputation as a vigorous litigator, which should deter those plaintiffs looking for a quick settlement; and (2) make incremental changes in class-action law to eliminate the worst plaintiff-side abuses. Specific law firms may have grand strategies as well. For example, throughout the 2000s, O'Melveny & Myers, under the leadership of John Beisner, made part of its goal to create a legislative environment that curbed the worst of plaintiff-side abuses. Part of that effort involved providing scholarship that analyzed the reasons why some plaintiff practices made for bad policy. One outcome that grand strategy helped produce was passage of the Class Action Fairness Act. These are hardly trade secrets, Beisner's scholarship is published, and he mentions his CAFA testimony in his firm biography. [Disclaimer - I worked at OMM during the period I'm discussing.]

    The most important part of developing grand strategy is recognizing that defending a lawsuit, even a "bet the company" lawsuit, still must fit into a company's (or law firm's) larger goals. Defense lawyers tend to treat this statement as a truism: of course you align your strategy with your client's goals. But treating this advice as strategy instead of marketing can help lawyers develop far more robust defenses to class actions.