Glossary

A

 

Absent Class Member: Most class members, known as absent class members, are silent. They rely on the class representative(s) and class counsel. They are entitled to benefits if the law firm wins or settles the case but they do not actively take part in the case.


Action: An action (as in the term class action) is a case, cause, suit or controversy disputed or contested before a court of justice. Also termed action at law. Action is used more often for civil lawsuits than for criminal cases.


Affidavit: An addifavit is a written sworn statement of fact that is made voluntarily - under penalty of perjury.


Allegations or Alleged Behavior: An allegation is a claim or statement that has not been proven to be true - an accusation. It is important to note that in nearly all settlements, no admission of guilt or wrongdoing is made, so all inappropriate or unfair behavior is only alleged to have taken place. 


Anticompetition: Anticompetitive business practices are designed to limit competition, and can lead to higher prices, reduced quality or service, less innovation, and fewer competitors in a given market.  Such unfair practices include price fixing, bid rigging, group boycotts, overcharges, underpayments, and exclusionary contracts.  These practices can be agreements between competitors, also referred to as horizontal conduct.  They can also be monopolistic practices of a single business. 


Antitrust: Trusts and monopolies are concentrations of wealth in the hands of a few. Trusts and monopolies are considered harmful restraints of trade which alter normal marketplace competition, and yield undesirable price controls. To prevent trusts from creating restraints on trade or commerce and reducing competition, Congress passed the Sherman Antitrust Act in 1890. The Antitrust Division of the U.S. Department of Justice is responsible for enforcing antitrust laws for the federal government, but private lawsuits may also be brought to curb antitrust activities. Most if not all states have comparable statutes prohibiting monopolistic conduct, price fixing agreements, and other acts in restraint of trade having strictly local impact.


Appeals: An appeal is the process to seek and obtain a review and reversal by a court of a lower court's decision. Appeals can take time, and will delay resolution of the settlement, and the distribution of funds to the eligible claimants.  Most appeals are not successful, and can be delaying tactics to slow down the payment of funds. 


Arbitration: Arbitration is a form of alternative dispute resolution (ADR), or a way to resolve disputes outside the courts. The dispute will be decided by one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), which renders the "arbitration award". An arbitration award is legally binding on both sides and enforceable in the courts.

B
 

Bellwether Trial: In the law of torts, bellwether trial is a test case intended to try a widely contested issue. Bellwether trials are especially common in Multidistrict Litigation (MDL) practice, where many cases have been consolidated for purposes of discovery and pretrial matters. In these MDL cases, it is not practical to prepare every case for trial. Several matters are, therefore, selected as bellwether cases and prepared for trial. They are then settled or tried and the results are used to shape the process for addressing the remaining cases.


Business Associate Agreement (BAA): A business associate contract, or business associate agreement, is a written arrangement that specifies each party's responsibilities when it comes to PHI.

 

C


Caption: A caption is the case name assigned, i.e. John Doe v. XYZ Inc


Case Number: Class action settlements have case numbers, and they are often a combination of individual cases with the designation multi district litigation ("MDL"). Cases are represented by the name of the settlement, the court (i.e. US District Court Southern District of New York), the designation "MDL" and/or CV (civil case) and the judges' initials. For example., the Cathode Ray Tube (CRT) settlement has the following case number - No. 3:07-cv-5944-SC, MDL No. 1917.


Certification: Certification occurs when the court decides that a case may proceed as a class action. A class is "certified" after the court decides that major criteria are met.  The criteria are: 1) number of plaintiffs; 2) "commonality" of the kind of damages plaintiffs suffered; 3)"typicality" of class members having the same argument; 4) "adequate" representation of the class members; and 5) "viability" of the defendant to compensate the plaintiffs if they lose.


Certification Hearing: Before certifying a class-action lawsuit, the trial judge will hold a hearing. At the hearing, attorneys for the class representative(s) and the defendants make arguments and sometimes present witnesses to help the judge make an informed decision.


Civil Law: This is a generic term for non-criminal law as it applies to settling disputes between private citizens or organizations. Civil lawsuits might be about negligence, anticompetitive behavior, a breach of a contract, a land dispute, etc.


Claims Audit: Claims administrators will audit refund claims for several reasons.  Larger claims pay more money, but also receive greater scrutiny.  Some claims administrators will automatically audit claims above a certain dollar value.  Some audits are random, while other result from missing or confusing information that the claims administrator cannot easily interpret.


Claims Made Settlements: Claims-made settlements are often used in the consumer class action context. In claims-made settlements, defendants pay the class an amount equal to the total value of all the valid claims. In some cases, the defendant agrees to pay only a fixed amount, and if the value of the valid claims exceeds the fixed amount there will be a provision for an adjustment of the payment amounts, typically a pro rata reduction. Additionally, a defendant typically pays class counsels’ fees and costs separately. In a claims-made settlement, unclaimed funds (if a fixed amount has been negotiated and not all funds have been claimed or there are uncashed checks) are paid to court-approved cy pres recipients, or, in rare cases revert back to the defendant.


Class: A large group of individuals who has suffered a similar loss or experience, bringing a legal action as one party with one or more representatives.


Class Action Fairness Act of 2005: This Act expanded federal subject-matter jurisdiction over many large class-action lawsuits and mass actions taken in the United States. It was lobbied for by business groups and tort reform supporters that argued it was needed to prevent class-action lawsuit abuse. The Act directs the Courts to give greater scrutiny to class action settlements, especially those involving corporations. The Act accomplished two key goals of tort reform advocates. First, it reduced "forum-shopping" by plaintiffs in friendly state courts. Second, it requires greater federal scrutiny procedures for the review of class action settlements and changes the rules for evaluating coupon settlements, often reducing attorney's fees that are deemed excessive relative to the benefits actually afforded class members.


Class Action Lawsuit: A class action lawsuit occurs when an individual or entity files on behalf of a group of individuals who share common injuries and damages that resulted from the same source. Such an individual  or entity is referred to as a class representative.  The class representative and class members must share common injuries from the same party. 


Class Action Settlement: When the court reviews and approves the settlement of a class action lawsuit, and it benefits the large group or class represented in the action. The settlement may involve a lump sum monetary payout to each of the plaintiffs and the eligible class.  It may also involve ending the anticompetitive activity that caused harm to the plaintiffs. MCAG generally does not get involved until there is a settlement; however, our Settlement Opportunity Committee (SOC) and Research Team may monitor lawsuits.


Class Certification (Rule 23): The 23(a) criteria are referred to as numerosity, commonality, typicality, and adequacy. For the case to proceed as a class action and bind absent class members, the court must certify the class under Rule 23 on a motion from the party wishing to proceed on a class basis. For a class to be certified, the moving party must meet all of the criteria listed under Rule 23(a), and at least one of the criteria listed under Rule 23(b). 23(b) generally relates to arguments concerning whether a class is beneficial vs the prospect of bringing individual claims.


Class Counsel: The lawyers or law firms that are appointed by the court to advocate for the class representative and all the members of the class. Class Counsel will oversee the Claims Administrator's actions in managing the claims process once a settlement has been reached.


Class Member Representative: In a class action, the named class representatives represent the interests of all members of the class in an effort to obtain appropriate relief and recover damages for all class members. A class representative must adequately and fairly represent the class members. Such representatives often receive an additional award.


Class Representative aka Representative Plaintiff: This is essentially the lead plaintiff in the case. Often a wronged or injured plaintiff will contact a law firm about a case. The law firm will review whether a class-action lawsuit is logical. The law firm will then represent the class representative who speaks for all the members of the class.


Clayton Act: This Act addresses specific practices that the Sherman Anti-Trust Act may not address. According to the FTC, these include preventing mergers and acquisitions that may "substantially lessen competition or tend to create a monopoly." The Clayton Act also authorizes private parties to sue for triple (or treble) damages when they have been harmed by conduct that violates either the Sherman or Clayton Act and to obtain a court order prohibiting the anticompetitive practice in the future.


Clear Sailing Agreement: This agreement covers class counsel's request for legal fees. In this type of agreement, the defendant agrees to the legal fees demanded by the class counsel.


Collusion: Collusion is the secret agreement(s) between two or more parties to defraud others or engage in unlawful activity to obtain something prohibited by law; or to obtain an unfair advantage over competitors or customers. Collusion takes many forms, such as price fixing, secret rebates, and other anticompetitive practices.  It is the cause of many antitrust class action lawsuits and class action settlements.


Common Fund Settlements: Common Fund settlements are more typical of antitrust, securities, and employment class actions. In these, claiming class members typically receive shares of the common fund pursuant to some formula, such that the amount each claimant receives is a function of the number of claims, and the entire net settlement fund is distributed. Class counsels’ fees are typically a percentage of the common fund. Uncashed checks in these cases are commonly paid to cy pres recipients.


Complaint: Any formal legal document that sets out the facts and legal reasons that the filing party or parties believes are sufficient to support a claim against the party or parties against whom the claim is brought. For our purposes, this is the initial document filed with the court. Complaints (and especially Amended Complaints) can be very useful in researching the facts and background of a case.


Contingency Fee: A fee charged that is calculated as a percentage of the overall recovery. MCAG's revenue from the SRS model is built on contingency fees. Such a fee model is also common in the practice of law.


Cy Pres: The use of the cy pres doctrine to distribute settlement funds begin in 1986 so that unused funds could flow to the next best beneficiary. The next best recipient is often a charitable trust which closely resembles the original reason for the class action suit. Cy pres translates to "so near/close" or "as near as possible."

 

D


Damages: The money awarded by a court to a claimant as compensation or imposed as a punishment for a financial loss or injury to person, property or rights.


Decertification: In some cases, the judge reverses his/her decision to certify the class. Decertification usually occurs as the case progresses, and it becomes clear that common questions of law or fact do not exist, or that other reasons suggest that the original certification decision was incorrect.


Declaration: For the purposes of this glossary, a declaration is similar to an affidavit, in that it is a written sworn statement of fact. MCAG often looks for declarations and uses them, especially those from individuals with a  settlement administrator, for research. They can be especially useful for determining the volume of claims filed and for calculating the potential pro rata distribution calculations.


Declaratory Judgment Class: In this type of class action, the purpose of the litigation is to determine the rights and duties of the parties.


Default Judgement: A binding judgment in favor of either party based on some failure to take action by the other party. Most often, it is a judgment in favor of a plaintiff when the defendant has not responded to a summons or has failed to appear before a court of law. The failure to take action is the default. The default judgment is the relief requested in the party's original petition.


Defendant and Settling Defendant: In a class action antitrust case, the defendant is the company or organization accused by the plaintiff(s) of engaging in anticompetitive actions such as price fixing, collusion, overcharges, underpayments, manipulation of standard rates, etc., in violation of federal antitrust laws.  A settling defendant agreed to pay money into a settlement fund to pay claimants for their role in the antitrust action, usually without admitting guilt.  If there are multiple defendants, the settlement fund may grow as additional defendants settle, sometimes leading to multiple rounds of claims filing and distributions in the same settlement.

 

Deficiency Notice: Several weeks or months after the filing deadline, a claims administrator will determine that a claim is missing data, or needs clarification or documentation to substantiate the claim.  They will send claimants a Deficiency Notice requesting that the missing information or documentation be provided.  A claims administrator may send out additional deficiency notices, even to the same client, during the course of the claims review process.  Deficiency notices will have response deadlines that are a certain number of days from when they are mailed, usually 20 to 30 days.  Failure to respond to a deficiency notice can mean that a claim is reduced or denied outright.


Department of Justice (DOJ): Also known as the Justice Department, it is a federal executive department of the United States government responsible for the enforcement of the law and administration of justice in the United States.


Depositions: The process of giving sworn evidence is called a deposition. It results in a formal, usually written, statement to be used as evidence.


Direct Purchaser Plaintiffs (DPP): Direct purchasers are plaintiffs and class members who directly purchased the products or services from one or more of the defendants in an antitrust class action.  They may be original equipment manufacturers, distributors, retailers or large companies.  Often direct purchasers bought a product in order to resell it.


Discovery: Discovery is a pre-trial procedure in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the other party or parties by means of discovery devices such as interrogatories, requests for productions of documents, requests for admissions and depositions.


Distribution: Once a settlement concludes and the submitted claims have been reviewed, audited, evaluated for their pro rata payment, and all objections and appeals are done, the court will receive and eventually approve a Motion to Distribute.  This means that Class Members will receive their awards.  The Distribution occurs several weeks from when the Motion to Distribute is approved. Sometimes, this term is also used to describe the process of MCAG making payments to clients and Partners.


Diversity Jurisdiction: Diversity jurisdiction refers to a federal court's exercise of authority over a case involving parties from different states and an amount in controversy greater than a statutory minimum (generally $75,000).

 

E

 

Early Retiree Reinsurance Program (ERRP): Program included in the Affordable Care Act (ACA) to provide financial assistance to employment-based health plan sponsors-including for-profit companies, schools and educational institutions, unions, State and local governments, religious organizations and other nonprofit plan sponsors-that make coverage available to millions of early retirees and their spouses, surviving spouses, and dependents. MCAG filed clients in an ERRP reimbursement opportunity in the 2010s.


Eligible States: For indirect purchaser settlements, certain states will not be eligible, or the settlement periods and types of eligible products may vary.  There are several reasons why this happens, but most have to do with the states treatment of the Illinois Brick Doctrine. There are around 30 state that are generally eligible (including NY and CA). Among the 20 that are usually not eligible are OH and TX. 

Employee Retirement Income Security Act of 1947" (ERISA): this Act protects the retirement assets of Americans by implementing rules that qualified plans must follow to ensure plan fiduciaries do not misuse plan assets. Under ERISA, plans must provide participants with information about plan features and funding, and furnish information regularly and free of charge. ERISA also sets minimum standards for participation, vesting, benefit accrual and funding. The law defines how long a person may be required to work before becoming eligible to participate in a plan, to accumulate benefits and to have a nonforfeitable right to those benefits. It also establishes detailed funding rules that require plan sponsors to provide adequate funding for the plan. Employee retirement plans are also called Employee Savings, Profit-Sharing, 401K, or Stock Ownership Plans.
 

End-Payor Plaintiffs (EPP): The persons last in the chain of distribution and include consumers, health care benefit plans, health maintenance organizations, health insurers, hospitals, nursing homes, and self-insured employers. Items purchased by EPPs would not be for resale.


Exclusion Request: The exclusion request is the formal request from a class member to be removed from the class. Some class actions allow a class member to opt out of the class. This may be because the class member thinks he/she can get a better result on his/her own or because the class member doesn't want to be involved.

 

F

 

Fairness Hearing: Once a settlement is reached, the court will hold a hearing where the fairness of the proposed settlement is evaluated.  The court will hear any objections to a proposed settlement and decide that the settlement is reasonable and fair. A discussion concerning attorneys' fees will also likely occur.


False Claims Act (FCA): This act makes it illegal for an individual or organization to deliberately make a false record or file a false claim regarding federal healthcare benefits.


Federal Rules of Civil Procedure (FRCP): These rules govern civil procedure in United States district courts. Their purpose is "to secure the just, speedy, and inexpensive determination of every action and proceeding."


Federal Trade Commission (FTC): The Federal Trade Commission is an independent government agency  whose principal mission is the enforcement of civil U.S. antitrust law and the promotion of consumer protection. Antitrust actions brought by the FTC often lead to class actions/settlements.

The Federal Trade Commission Act (FTC Act): This Act bans "unfair methods of competition" and "unfair or deceptive acts or practices." According to the Supreme Court, violations of the Sherman Antitrust Act also violate the Federal Trade Commission Act. Therefore, even though the FTC cannot technically enforce the Sherman Anti-Trust Act, it can bring cases under the FTC Act against violations of the Sherman Antitrust Act.


Filing Deadline: Often simply referred to as the deadline. When a settlement receives final approval, court notices are sent out to class members notifying them that they may be eligible to receive a refund from the class action settlement.  The notice announces a filing deadline to submit claims.  Filing deadlines can vary or be postponed, but they are often 60 to 90 days from the approval of the settlement.


Final Approval: When final approval is granted, it means that the Court has approved the settlement agreement and the form of state escrow agreement.  At the time of such approval, the settlement between the parties is final. MCAG tracks final approval as the date on which such approval was granted.


Forum Shopping: Forum shopping is the practice of litigants having their legal case heard in the court thought most likely to provide a favorable judgment. Some jurisdictions have, for example, become known as "plaintiff-friendly."

 

G


Global Settlement: A "global settlement" is one employed where suits have been filed or charges brought in multiple jurisdictions. It is defined as "a legal agreement that addresses or compromises both civil claims and criminal charges against a corporation or other large entity."

H

Health Insurance Portability and Accountability Act (HIPAA): The Health Insurance Portability and Accountability Act is a law that ensures patient privacy and protection of all physical and electronic medical records and other Personal Health Information (PHI).

I


Illinois Brick Doctrine: Often referred to as "Illinois Brick," this is a US Supreme Court case that involved issues concerning statutory standing in antitrust law. The Court's opinion established the rule that indirect purchasers of goods or services along a supply chain cannot seek damages for antitrust violations committed by the original manufacturer or service provider, but permitted such claims by direct purchasers. Several courts/states recognize exceptions to the rule.


Indirect Purchaser Plaintiff (IPP): Plaintiffs who are injured when an anti-competitive price is "passed on" to them through a distribution chain. Indirect purchasers are plaintiffs and class members who purchased products or services from one or more of the defendants for their own use, and not for resale.


Injunction: An injunction is a court order compelling a party to act or to refrain from a certain act, under the threat of civil or criminal penalties.


Injunctive Relief Class: This is a type of a class-action lawsuit where the primary focus is to correct misconduct. Injunctive relief means that the class is asking that the judge to issue an order against a company, public official or other defendants, stating that the misconduct be stopped.


Interlocutory Appeal: Usually, any decisions by the trial judge cannot be appealed to a higher court until after there is a verdict. Some special decisions can be appealed before the case reaches a conclusion. Certification of the class is one of these special decisions that can be appealed. Appeal of special decisions is called an interlocutory appeal.


Involuntary Dismissal: This type of dismissal describes the termination of a court case despite the plaintiff's objection.

 

J


Judicial Panel on Multidistrict Litigation (JPML): a special body within the United States federal court system which manages multi-district litigation (MDL).


Jurisdiction: Jurisdiction is the power to exercise authority over persons and things within a territory.  In a legal sense, it gives a court the power to hear and decide a case of lawsuit. Jurisdictions can also relate to a geographical area in which political authority is recognized.

 

L

 
Law 360: This resource provides news and analysis on legal developments including litigation filings, case settlements, verdicts, regulations, enforcement, legislation, corporate deals, policy developments and more across dozens of practice areas, industries, and jurisdictions. 


Lead Counsel: The attorney or law firm approved by the trial court to represent the class representative is called lead counsel. Lead counsel firms, such as Hagens Berman, handle all aspects of the class-action litigation and are selected for their merits to lead a class-action lawsuit based on their success record and/or expertise in the type of case at hand. If more than one firm is named as lead counsel, they are referred to as co-lead counsel.


Lex Machina (pronounced "lex-mock-ina"): This resource is a searchable and interactive catalog of legal data derived from court cases and documents. Lex Machina is also the name of the IP litigation research company, a division of LexisNexis, that developed the legal analytics data tools and software. 


Liaison Counsel: This type of counsel is a lawyer or firm that is neutral. They act as an intermediary between the opposing legal firms and the court. A liaison counsel is sometimes used in complex litigation.


London InterBank Offered Rate (LIBOR or ICE LIBOR): LIBOR or ICE (Intercontinental Exchange) LIBOR (previously BBA LIBOR) is a benchmark rate that some of the world's leading banks charge each other for short-term loans. It stands for London Interbank Offered Rate and serves as the first step to calculating interest rates on various loans throughout the world. There have been several lawsuits and settlements related to alleged manipulation of LIBOR. MCAG is participating in the over the counter (OTC) and researching the Bondholder settlements. MCAG is following the Exchange-based and Lender settlements, but is not likely to file claims into them.


Lodestar: The Lodestar is a method of computing attorney's fees whereby a trial court must multiply the number of hours trial counsel reasonably spent by a reasonable hourly rate.

M


Market Allocation: This anticompetitve scheme is devised by two entities to keep their business activities to specific geographic territories or types of customer. It can also be called a regional monopoly.


Mass Tort Litigation: A mass tort is a civil action involving numerous plaintiffs against one or a few corporate defendants in state or federal court. Law firms sometimes use mass media to reach possible plaintiffs. The key difference between Class Action and Mass Tort has to do with how, procedurally, the large group of plaintiffs are treated. Unlike class actions, mass torts do not have to be certified. The plaintiff’s claims are more individualized due to the broader range of injuries.  The most common mass tort cases involve defective drugs and defective products. The negative effects of these drugs and products result in different injuries, making the cases unsuitable to fit into a single class. Therefore, Plaintiffs file their lawsuits separately rather than in a group.


MCAG Capture: Within the MCAG Pipeline document, this field represents the percentage of the net settlement fund that MCAG expects to receive in gross recoveries ("MCAG Client Recoveries"). Once a settlement has distributed, the amount on the Pipeline is updated to the actual "Capture" percentage. Prior to that, it is estimated, most often based on MCAG's historical performance in like settlements.


MCAG Client Recoveries: This term is used for the gross amount recovered from a settlement on behalf of MCAG clients (i.e. before MCAG's service fee is applied).


MCAG Income: MCAG's actual retention of the amount that is recovered from a settlement is referred to as MCAG Income. It is calculated by multiplying the Net Retention Rate by MCAG Client Recoveries.


MDL Panel: Also known as the Judicial Panel on Multidistrict Litigation (JPMDL), this Panel is a special body within the US federal court system which manages multidistrict litigation.  It has the authority to determine whether civil actions pending in two or more federal judicial districts should be transferred to a single federal district court for pretrial proceedings. 


Multi-District Litigation (MDL): Also known as MDL, it is the procedure for consolidating similar cases which may have common issues, plaintiffs, defendants, etc.   Class action lawsuits often begin as individual civil cases filed in federal courts across the country, and are consolidated and given an MDL number to replace their CV (civil) number.  The consolidated case goes to one district court and judge to be administered.  Class action settlements may have multiple case numbers, but they usually have a single MDL number and are handled by one court. If there is no settlement or other final resolution, the panel remands each case to its court of origin at the conclusion of the pretrial proceedings.


Memorandum: A memorandum is the most formal, polished, and comprehensive written document reporting the results of  legal research. It summarizes and analyzes the relevant laws and applies it to a particular fact situation.


Monopolies: A monopoly is the dominance of an industry or sector by one company or firm while cutting out the competition.


Motion: A motion is a procedural device used to bring a limited, contested issue before a court for decision. When a party makes a motion, they are requesting that the court make a decision about the case.

N


National Drug Code (NDC): The National Drug Code (NDC or NDC code) is a unique product identifier used in the United States for drugs intended for human use. The Drug Listing Act of 1972 requires registered drug establishments to provide the Food and Drug Administration (FDA) with a current list of all drugs manufactured, prepared, propagated, compounded, or processed by it for commercial distribution. The NDC is a unique 10-digit, 3-segment numeric identifier assigned to each medication listed under Section 510 of the US Federal Food, Drug, and Cosmetic Act. The segments identify the labeler or vendor, product (within the scope of the labeler), and trade package (of this product). For example, the NDC for a 100-count bottle of Prozac 20 mg is 0777-3105-02.


Net Retention Rate: This rate is the percentage of MCAG Client Recoveries that MCAG retains after paying Service Partners. MCAG's average Net Retention Rate is 13.75%, which is the number that is initially reported on the Pipeline document. Once MCAG completes its internal reconciliations, the actual Net Retention Rate is updated on the Pipeline document. 


Net Settlement Fund: The net settlement fund is the amount left in a settlement fund once all legal fees, administrator fees, class representative awards and any other costs have been deducted. MCAG assumes a 30% reduction to the (gross) settlement fund when reporting this data on the Pipeline document. Once the amount has been finalized in publicly available documents, it is updated on the Pipeline as well.


Non-Disclosure Agreement (NDA): An NDA is a contract in which a party or parties promise to protect the confidentiality of information obtained during the course of employment or business transaction. These agreements can be one-way or mutually binding.
Notice Rule 23 requires that after a class has been certified, all members of the class must be given notice of the class-action lawsuit. Notices are given when possible through direct mail. Otherwise they are given through other publication techniques such television, radio, newspaper ads and the Internet. The notice should describe the action, the class claim, the class itself, that class members can enter an appearance through a lawyer, and that members can request exclusion and the binding nature of class judgments. There are long form and short form Notices. The long form Notice is generally greater than 10 pages and provides great detail about the settlement or lawsuit. These are beneficial for MCAG's settlement research. The short form Notice, often called a "postcard," is usually a paragraph or two in length. It provides a summary of the settlement or lawsuit and may provide a website to visit for more information.


Numerosity: One of the Rule 23 prerequisites for class-action certification is as follows: "One or more members of a class may sue or be sued as representative parties on behalf of all members only if the class is so numerous that joinder of all members is impracticable.” For our purposes, numerosity is shorthand for a finding that this prerequisite has been met.

O


Objector: An objector is someone who officially objects to/opposes a class-action settlement proposal. Generally, an objector is still a member of the class - i.e. has not opted-out.


Opt-out: Similar to an exclusion request, an opt-out is the act of one class member electing not to be part of the class-action lawsuit. This action has the effect of not binding the class member to any judgment or release language in the case.  It also has the effect of excluding a class member from being able to participate in any settlement or favorable judgment.  In a class action settlement, some class members that could be eligible claimants will opt out so they may pursue their own actions against the defendants.

 

P


Per se: In US law, the term "illegal per se" means that the act is inherently illegal.  Thus, an act is illegal without extrinsic proof of any surrounding circumstances such as lack of knowledge or other defenses.  Acts are made illegal per se by statute, constitution or case law. For example, plain arrangements among competing individuals or businesses to fix prices, divide markets, or rig bids are acts that are deemed to be "per se" violations of the Sherman Act; in other words, no defense or justification is allowed.


Personal Cardholder Information (PCI): PCI is the payment card industry equivalent to healthcare's PHI - it generally means "cardholder data." The PCI Security Standards Council (SSC) defines "cardholder data" as the full Primary Account Number (PAN) or the full PAN along with any of the following elements: Cardholder name. Expiration date. Service code.


Personal Health Information (PHI): PHI generally refers to demographic information, medical histories, test and results, mental health conditions, insurance information, and other data a healthcare professional collects to identify an individual and determine appropriate care.


Pharmacy Benefit Manager (PBM): A PBM is a third party administrator (TPA) of prescription drug programs - for MCAG's purposes, a PBM administers these programs for self-insured employer plans. A PBM  is primarily responsible for processing and paying prescription drug claims. They also are responsible for developing and maintaining the formulary, contracting with pharmacies, and negotiating discounts and rebates with drug manufacturers. In the US, three major PBMs (Express Scripts, CVS Health, and OptumRx of UnitedHealth Group) comprise 78% of the market.


Pipeline Report: The pipeline report is an MCAG internal document that presents information about recently distributed and currently active settlements, including Net Settlement Fund, MCAG Capture, (MCAG) Net Retention Rate, etc.


Plaintiff: The plaintiff is the party who initiates the lawsuit(s) by filing a complaint with the clerk of the court against the defendant companies for their anticompetitive behavior or illegal action, and demands monetary damages and/or an end to the behavior that triggered the legal action.  Plaintiffs may be either named or unnamed.


Plaintiff Executive Committee (PEC): A PEC is a group the spearheads grouping multiple cases into an MDL.


Plaintiffs' Bar: This term is an informal designation for attorneys who generally represent plaintiffs.

 
Plan of Allocation: This settlement document is a proposed plan or formula of allocation of the settlement fund, whereby the net settlement fund is distributed to authorized claimants after payment of legal fees, awards and settlement expenses.


Pleadings: Pleadings are formal written statements of a party's claims or defenses to another party's claims in a civil action. 


Prejudice: This term has different legal meanings when used in criminal, civil, or common law. In general, an action taken with prejudice is final.


Preliminary Approval: Once the parties have negotiated a satisfactory deal, they submit their proposed settlement for review by the judge overseeing the case. The court reviews the agreement and decides whether the settlement is “fair, reasonable, and adequate” to the class members. The judge will also look out for any signs of collusion and make sure the agreement doesn’t just benefit the lead plaintiff and counsel. Preliminary approval signals the court's initial approval of the settlement agreement. If notice has not already been sent out (concerning the lawsuit), preliminary approval of the settlement will likely trigger a notice of the settlement to the potential class.


Pretrial Hearing: This type of hearing is a meeting between parties to a case that happens prior to the beginning of the trial. It can help clear up any issues and details that can be handled prior to trial, which then frees the parties up to focus on the real legal issues of the case without the distractions.


Pre-Trial Proceedings: Proceeding held by a judge or arbitrator before a trial (i.e. pre-trial) are meant to simplify the issues of law and fact and stipulate certain matters between the parties, in order to expedite justice and curtail costs at the trial. An arraignment is a pre-trial proceeding in criminal court. A meeting of the parties to a case, held before the court, is called a pretrial conference.


Price Fixing: This type of anticompetitive behavior occurs when the price of a product or service is set by a business intentionally, rather than letting market forces determine it naturally. Often, price fixing allegations concern multiple businesses coming together to fix prices and ensure profitability in their market.


Pro rata: This allocation method is used in common fund settlements and simply divides the net settlement amount proportionately among the class members. A pro rata distribution can either divide the net settlement fund among the number of valid claims made, or divide the net settlement fund among all class members. A class action notice sometimes includes the estimated recovery amount per class member, with qualifying language that explains the amount may change.


Protected Health Information (PHI): Protected health information (PHI) under the US law is any information about health status, provision of health care, or payment for health care that is created or collected by a Covered Entity (or a Business Associate of a Covered Entity), and can be linked to a specific individual.


Pro se: This latin term means "for oneself" or "on behalf of themselves." In modern law, it means to argue on one's own behalf in a legal proceeding as a defendant or plaintiff in civil cases or a defendant in criminal cases.


Proceeding: Legal proceedings are actions taken to settle an argument in a court of law.


Public Access to Court Electronic Records (PACER): PACER is an electronic public access service of US federal court documents.  It allows users to obtain case and docket information from the district courts, courts of appeals, and bankruptcy courts. The service is not free, but is reasonable, operating a charge of cents per page (with max limits). Lex Machina and Law360 both rely on PACER and allow for some access (Law360) or even full access (Lex Machina) to PACER documents through their subscriptions.


Publication: Publication is one of the methods in which notice is given to class members. Publication normally refers to notice in a newspaper, television advertisement or radio advertisement.

R


Release: Release language in the settlement agreement bars a class member from seeking future claims arising from the same occurrence or alleged behavior. Most often, class members only release defendants from claims that could be made relating to the alleged behavior that occurred during the claims period. On rare occasions, release language bars class members from bringing actions about similar future behavior by the defendants - either for a fixed period of time or forever. 


Remand: Remand means to send back. An appeals court may remand a case to the trial court for further action, if it reverses the judgment of the lower court. In criminal cases, a judge may remand into custody a person accused of a crime, if the judge finds that a there is reason to hold the accused for trial.


Request for Production: A request for production is a legal request for documents, electronically stored information, or other tangible items made in the course of litigation. However, the requestor then may file a motion to compel discovery to ask the court to order the responding party to produce documents.


Residual Distributions: Major class action settlements (Air Cargo, Flexible Polyurethane Foam, LCD Flat Panels, US Foodservice, etc.) may pay out refund money to eligible claimants over several years. Settlements with multiple defendants may receive payments over time, as defendants pay into the settlement funds at various intervals.  Also, claims administrators often withhold funds to cover administrative and other expenses, and will pay refunds as the money becomes available.


Return on Investment (ROI): ROI is a performance measure used to evaluate the efficiency of an investment or to compare the efficiency of a number of different investments.  To calculate ROI, the benefit (return) of an investment is divided by the cost of the investment; the result is expressed as a percentage or a ratio. MCAG often tells clients that settlements where little effort is involved on their (the client's) part have a higher ROI (regardless of actual monetary return), becuase so little (time or work) is invested.


Risk Adjustment: For the purposes of the MCAG pipeline report, this field represents a standard reduction that MCAG applies to the estimated income that is expected from a settlement. The reductions are generally based on the status of the settlement and decrease (which increases the estimated income) as the settlement nears distribution.

S


Score Card: A Score Card is an MCAG internal tool used to evaluate settlements being reviewed for potential pursuit by MCAG on behalf of our clients. They provide a score which is a major factor in determining whether and how to pursue a settlement opportunity. As part of the score card process, additional documentation has been created, including: a list and definitions of the criteria used in scoring, weights and measurements used in calculating scores, a list of documents needed for assessing each point of criteria, analytics of previous settlements, research notes to help guide scoring, etc.  The score card's allows for a consistent and structured method for review and analysis.  Once a settlement is complete (i.e. has distributed), a post score is performed to assess the accuracy of the score card and revisit assumptions and processes as necessary.


Self-Insured Group Health Plan or Self-Funded: A self-insured group health plan (or a 'self-funded' plan as it is also called) is one in which the employer assumes the financial risk for providing health care benefits to its employees. In practical terms, self-insured employers pay for each out of pocket claim as they are incurred. When an employer pays a fixed premium to an insurance carrier, it is known as a fully-insured plan. Typically, a self-insured employer will set up a special trust fund to earmark money (corporate and employee contributions) to pay incurred claims.


Service Fee: The service fee is the percentage that represents MCAG's retention of the amount that is recovered from a settlement - this ranges from as low as 10% to as high as 30%. It is most often at 25% of settlement recoveries.


Service Partner: A service partner is an entity that contracts with MCAG to offer our services to their client base. Service Partner generally provide data, while an entity that only markets MCAG's service but does not provide data is sometimes referred to as a referral partner.


Settlement Administrator/Claims Administrator: A third-party entity appointed by the court to handle the settlement claims process, including: distributing the settlement notice to class members, reviewing claim forms and approving or denying them.


Settlement Agreement: In a civil lawsuit, the settlement agreement is a document that spells out the terms of an out-of-court compromise. This is an important document for MCAG. MCAG reviews the document to try and determine the amount of the settlement fund, class member definition, the class period, filing requirements, etc. 


Settlement Date: This is the date on which the parties submit a joint settlement agreement.


Settlement Management System (SMS): An internal system wherein MCAG manages all settlement activity, from research to filing to reconciliation and distribution of funds.

 

Settlement Period: ​Also known as the class period, it is the specific time frame during which a defendant company is alleged to have been improperly conducting the business that caused the lawsuit. The class period is spelled out in court documents and in the public notice about the settlement.  Even if the anticompetitive activities are alleged to have taken place over a longer period of time, a finite settlement period is agreed upon to facilitate the settlement and the administration of submitted claims.​


Settlement Recovery Service (SRS): The term used to describe MCAG's service as it related to settlements.


Sherman Antitrust Act: The Sherman Act is a US antitrust law that regulates competition among enterprises. It broadly prohibits (1) anticompetitive agreements and (2) unilateral conduct that monopolizes or attempts to monopolize the relevant market.


Splits: When a company declares a stock split, the price of the stock will decrease, but the number of shares will increase proportionately. In a reverse split, a company takes shares from investors, but then increases the price of the stock to keep the market value the same.


Steering Committee: The steering committee is the team of lawyers handling the case for the plaintiffs. Lead counsel is the head of this committee.


Summary Judgment: Summary judgment is a judgment entered by the court for one party and against another party summarily, i.e., without a full trial. Such a judgment may be issued on the merits of an entire case, or on discrete issues in that case.

T


Telephone Consumer Protection Act of 1991 (TCPA): The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment. The TCPA limits the use of automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines.


Third Party Administrator (TPA): A TPA is an organization that processes insurance claims or certain aspects of employee benefit plans for a separate entity. It is also a term used to define organizations within the insurance industry which administer other services such as underwriting, customer service, etc. MCAG provides SRS as a TPA.


Third Party Payor (TPP): A TPP is a payer, typically a private or public insurance agency, who either compensates the provider for the expense of providing a service to the patient, or compensates the patient after the patient has paid the provider's bill.

V

Venue: For civil cases, venue is usually the district or county which is the residence of a principal defendant, where a contract was executed or is to be performed, or where an accident took place.

 

Voluntary Dismissal: Voluntary dismissal is the termination of a lawsuit by voluntary request of the plaintiff (the party who originally filed the lawsuit).


Voucher Settlements: Voucher settlements are less common and are a non-cash benefit. There are various ways to structure these non-cash payments, including coupons or discounts. The courts don’t usually favor voucher settlements because they usually require class members to spend money to obtain the benefit, and often send class members back to the defendant to purchase more goods or services. There have been allowances made if the coupon or discount directly addresses the claims raised by the class action in the settlement. Often, these offers need to be made without restrictions or expiration.

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

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MCAG is a revenue recovery consulting firm where teams of advisers, auditors, analysts and IT professionals provide expertise, analysis and technology to ensure our clients capture every recoverable dollar.  

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