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CLASS ACTION VACCINATION

Session 26: February 27, 2008

Session Producer:

Stephen Serfass, Associate

Drinker, Biddle & Reath, LLC

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Strategic Analysis as a Key to Avoiding Most Class Actions and Winning those that are

Unavoidable

Matt Cooper

Steve Baker

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PANEL

• Matt Cooper, Senior Vice President and General Counsel, Genworth Financial

• Steve Baker, Drinker, Biddle & Reath, LLC

• Stephen Serfass, Drinker, Biddle & Reath, LLC

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“Avoiding occasions of expense by cultivating peace, we should remember also that timely disbursements to prepare for danger frequently prevent much greater disbursements to repel it.”

-George Washington

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Lesson #1

As the old saying goes, you can’t please all of the people all of the time. That should not, however, keep you from trying. When things do go wrong, as they sometimes will, be sure to help yourself now by keeping your defenses in good order.

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“Let us speak courteously, deal fairly, and keep ourselves armed and ready.”

-Theodore Roosevelt

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Lesson #2

Focus on the fundamentals – get the basics right and you will have a better chance of avoiding class actions.

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“If you wouldn’t write it and sign it, don’t say it.”

-Earl Wilson

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Lesson #3

Effective communication with policyholders, both oral and written, are fundamental to the avoidance of class actions.

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“An effective military depends heavily on effective communication, including transmission of commands, coordination of actions, transmission of information about enemy activities and about the progress of battles, among others.”

-Brian Martin

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Lesson #4

Communication within your organization is just as important as communication with policyholders.

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“To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.”

-Sun Tzu

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Lesson #5

Timeliness in evaluating claims is key.

According to an NAIC report, the top three reasons consumers filed formal complaints against their insurance companies in 2005 were delays, denials and unsatisfactory settlement offers.

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“I am more afraid of our own mistakes than our enemies’ designs.”

-Pericles

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Lesson #6

Rate and policy form approval are no safe harbor.

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“The whole art of war consists in getting at what is on the other side of the hill.”

-Wellington

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Lesson #7

Stop feeding the plaintiff’s bar. That lawsuit against your competitor may someday be the lawsuit against you. Monitor the plaintiff’s bar and be alert to lawsuits your peers are facing.

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“One ought never to turn one’s back on a threatened danger and try to run away from it. If you do that, you will double the danger. But if you meet it promptly and without flinching, you will reduce the danger by half.”

-Winston Churchill

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Lesson #8

Don’t allow the “small” problems of today to become the class actions of tomorrow.

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“The more you sweat in peace, the less you bleed in war.”

-Asian Proverb

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Lesson #9Stay up to date.

Just as policy language needs to be reviewed over and over again, so does the law of the states in which you operate. As the law changes before our eyes, policy language may need to be revised to remain appropriate.

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“The way to win an atomic war is to make certain it never starts.”

-Omar Bradley

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Lesson #10

Conduct periodic “class action” audits of yourself.