Holly focuses her practice on class actions and complex litigation. She enjoys developing the factual record needed to defeat class certification—particularly when it involves developing a highly technical or scientific expert record. Holly has successfully defended nationwide, multi-state and single-state class actions filed in jurisdictions across the United States and has dealt with a variety of industry-specific issues and legal claims, ranging from consumer fraud theories to breach-of-contract allegations to alleged environmental disasters. The types of products at issue in the class actions Holly has worked on include automotive, children’s products, construction supplies, pet products, pharmaceuticals, medical devices and tobacco.
Holly knows there is no one-size-fits-all approach to complex litigation, and she likes working with clients to devise the best approach to suit their business aims. If global resolution is desired, Holly is an experienced class settlement negotiator who knows both how to negotiate and how to defend class settlements. Holly also is an experienced multidistrict litigation (MDL) litigator who provides clients with guidance on the pros and cons of MDL treatment, as well as sound strategy once in an MDL.
Representative Matters
Serve as counsel of record in six putative class actions pending around the country against an automotive client. These cases involve various alleged defects in different vehicle models and center on warranty and consumer fraud claims.
Defend a university system in ongoing class litigation asserting claims that the switch to remote learning in the face of the COVID-19 pandemic resulted in tuition, housing and student fee overcharges.
Allen v. Shutterfly, Inc. et al, 2020 WL 5517170 (N.D. Cal. Sept. 14, 2020); 2020 WL 5517172 (N.D. Cal. September 14, 2020) – successfully removed case to federal court and then obtained orders granting personal jurisdiction challenge related to one defendant and compelling non-class arbitration of the claims against the remaining defendant, in a case alleging consumer fraud and other violations related to school picture program.
Led class defense counsel in In re AZEK Building Products, Inc. Marketing and Sales Practices litigation, MDL No. 2506 (D.N.J) – which involved consumer fraud and warranty allegations related to PVC decking. The court approved a class settlement in 2018.
In re Bayer Healthcare and Merial Ltd. Flea Control Prods. Marketing & Sales Pracs. Litig., 752 F.3d 1065 (6th Cir. 2014) and 2013 WL 1150089 (N.D. Ohio Mar. 19, 2013) – obtained a summary judgment ruling that was upheld on appeal in a purported class action alleging that the client’s marketing representations about the efficacy of its products lacked sufficient scientific support.
Johnson v. MFA Petroleum Comp., et al., 10 F. Supp. 3d 982 (W.D. Mo. 2014) and 2013 WL 3448075 (W.D. Mo. July 9, 2013) – successfully removed a putative Missouri-only deceptive trade practices class action to federal court and thereafter obtained a dismissal on the basis that the claims were preempted by the federal Petroleum Marketing Practices Act.
Mays v. Tennessee Valley Authority, 274 F.R.D. 614 (E.D. Tenn. May 10, 2011) – helped develop the class defense strategy in this environmental spill case, and co-authored the brief that led to the denial of class certification.
Cleary v. Philip Morris, et al., No. 09-C-1596, 2010 WL 2555640 (N.D. Ill. June 22, 2010), aff’d, 656 F.3d 511 (7th Cir. 2011) – oversaw the removal this case under CAFA, after it had lingered 11 years in state court, and collaborated with co-counsel on the defense strategy that ultimately led to its dismissal in federal court.
Rogers v. QuikTrip Corporation, 230 P.3d 853 (Okla. 2010) – drafted the brief to the Oklahoma Supreme Court in this putative consumer fraud class action, which involved a challenge to retail ethanol disclosure practices; the Oklahoma Supreme Court reversed the trial court’s denial of a motion to dismiss.
Kremers v. The Coca-Cola Company, 712 F. Supp. 2d 759 (S.D. Ill. 2010) – deposed the proposed class representatives, whose testimony was quoted extensively by the court in granting the defendant summary judgment in this putative consumer fraud class action involving product advertising.
In re Digitek Prods. Liability Litig., MDL 2:08-md-01968, 2010 WL 2102330 (S.D. W. Va. May 25, 2010) – deposed the class representatives and co-authored the brief that led to denial of class certification in this MDL involving several class actions premised upon a recent product recall.
Publications
Holly Pauling Smith, Michael Mallow and Tom Sullivan, Strategies to Defend Tuition Refund Class Actions, COVID-19 Shook Client Primer, May 27, 2020.
Holly Pauling Smith and John Sherk, Class Actions and Mass Actions, COVID-19 Shook Client Primer, April 3, 2020.
Holly Pauling Smith & Madeleine McDonough, Chapter 25: USA, The International Comparative Legal Guide to: Class & Group Actions 2012 (Global Legal Group Ltd., London).
Holly Pauling Smith & Madeleine McDonough, Chapter 3: A New Frontier: Health-Claims Class Actions, The International Comparative Legal Guide to: Class & Group Actions 2011 (Global Legal Group Ltd., London.)
Holly Pauling Smith & Madeleine McDonough, Chapter 25: USA, The International Comparative Legal Guide to: Class & Group Actions 2011 (Global Legal Group Ltd., London).
Presentations
Current Developments and Best Practices in Class Action Litigation, FDCC Corporate Counsel Symposium, October 22, 2023.
Rule 23(b)(2) Injunctive Relief Class Actions: Recent Decisions, Approaches for Plaintiffs and Defendants, Strafford CLE Webinar, June 10, 2020 (with Rebekah Byers Kcehowski).
Key Considerations in Managing and Handling Products-Related Class Actions, Panelist, ABA Emerging Issues in Motor Vehicle Product Liability Litigation Conference, San Diego, California, April 5, 2019.
Blockbuster Developments in Products Related Class Actions, Moderator, ABA Motor Vehicle Conference (April 2018).
Key Developments in Product Liability Class Actions, ABA Emerging Issues in Motor Vehicle Product Liability Litigation (April 2016) (with Amir Nassihi; Jason Menges, Assistant General Counsel at Nissan North America, Inc.; Jason Erb, Assistant General Counsel at Hyundai Motors; Jim Olivia, Senior Counsel at Honda North America, Inc.; Eric Smith, Senior Counsel at Nissan North America, Inc.).
Key Developments in Product Liability Class Actions, ABA Class Action Litigation in America – A National Symposium (March 2016) (with Amir Nassihi and Eric Smith, Senior Counsel at Nissan North America, Inc.)
Class Action Medley, ABA Emerging Issues in Motor Vehicle Product Liability Litigation (April 2015) (with Amir Nassihi; Jim Olivia, Senior Counsel at Honda North America, Inc.; Eric Smith, Senior Counsel at Nissan North America, Inc.).
Class Action Medley: Procedural Developments, ABA Emerging Issues in Motor Vehicle Product Liability Litigation (April 2014) (with Jason Menges, Senior Counsel at Nissan North America, Inc.).
Class Action Medley: Can a Product Recall Moot a Class Action?, ABA Emerging Issues in Motor Vehicle Product Liability Litigation (April 2014) (with Amir Nassihi).
Product Recalls & Class Actions: Does Your Class Action Have a Silver Lining?, Shook, Hardy & Bacon’s Tenth Annual Update of the Law (June 2013).
Post-Dukes Survey & Emerging Issues in Complex Litigation, a client's Annual In-House CLE Program (Oct. 2012).
Media Coverage
In Pari Delicto Is Alive and Well in Kansas, Drug and Device Law Blog, August 10, 2023.