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1.7.7.3 Claims That Are Not Fact-Intensive Are Ideal

When selecting claims to include in a class action, the factual issues necessary to prove the elements of each claim should be considered. The fewer factual issues presented, the less complicated the case and the more likely the claim will be resolved by summary judgment without the need for an evidentiary hearing or trial. The case will also be less costly and time-consuming than one requiring proof on numerous factual issues.

Inclusion of a less significant yet easy-to-prove claim in a complex complaint is often a good idea. For example, in a class action arising out of a home improvement fraud scheme, it may be desirable to include actionable deficiencies in Truth in Lending disclosures even though these were not what brought the client to you and may not be the most lucrative claim in the case. Such a claim can be used to obtain an early summary judgment. Summary judgment, in turn, may encourage an early settlement, bringing about a favorable resolution of the entire case. Disregard of simple and clear disclosure obligations also serves to buttress the defendant’s image as a lawbreaker.

On the other hand, avoid bringing cases that are focused on “technical” violations and do not include strong evidence of intent or actual harm to consumers. Court look on such cases with disfavor, because they create a risk of very large statutory damages awards that courts view as out of proportion to the actual wrongdoing.144

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