This analysis outlines specifications parties should consider in order to reduce ambiguity when crafting blow provisions.
Securities class action settlements often include what is commonly referred to as a “blow provision”—a provision designed to give defendants the option to terminate the settlement agreement if a specified threshold of investors opt out of the class action settlement (“opt-outs”).
Ideally, a blow provision would be tied directly to anticipated opt-out exposure, that is, the amount of damages expected to be claimed by opt-outs if or when they file their own direct action suits. However, opt-out exposure often cannot be known at the time of the class action settlement. Due to this limitation, parties to a class action settlement instead must structure blow provisions based on other methods. If the terms of a blow provision are not specified with care, there may be ambiguity or disagreement as to whether the blow provision has been triggered.
Coauthors Katie Galley, Brendan Rudolph, and Mitchell Allen of Cornerstone Research discuss certain blow provision structures that have been observed in practice, as well as details regarding specifications that parties can bear in mind to reduce ambiguity when crafting blow provisions. Although the specific terms of blow provisions are often not publicly disclosed, rendering a comprehensive empirical survey of various blow provision structures infeasible, this article discusses certain blow provision terms that have eventually become publicly available.
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