Saturday, January 24, 2015
Back at the end of last Term we covered the Supreme Court’s grant of certiorari in Gelboim v. Bank of America (No. 13-1174). This week the Court issued a unanimous opinion in Gelboim, authored by Justice Ginsburg. Here’s how she teed things up:
An unsuccessful litigant in a federal district court may take an appeal, as a matter of right, from a “final decisio[n] of the district cour[t].” 28 U.S.C. §1291. The question here presented: Is the right to appeal secured by §1291 affected when a case is consolidated for pretrial proceedings in multidistrict litigation (or MDL) authorized by 28 U.S.C. §1407?
The Court’s answer: No. Plaintiffs whose action was consolidated for pretrial MDL proceedings could still appeal the dismissal of their action, even though other cases in the MDL remained pending. It was not necessary for such plaintiffs to obtain authorization to appeal via Federal Rule of Civil Procedure 54(b).
In footnote 4, though, the Court reserved judgment on whether it would reach the same conclusion when cases were “combined in an all-purpose consolidation,” as opposed to an MDL consolidation for pretrial purposes only. (Not as glamorous as footnote 4 of Carolene Products, but worth keeping an eye on.)
For more, Howard Wasserman has an analysis of the opinion over at SCOTUSblog.
Thursday, August 8, 2013
The Judicial Panel on Multidistrict Litigation granted three Motions to Centralize and denied eight Motions to Centralize in its July 2013 Hearing Session.
MDL No. 2458 - IN RE: Effexor (Venlafaxine Hydrochloride) Products Liability Litigation (before Judge Rufe in the Eastern District of Pennsylvania)
MDL No. 2455 - IN RE: Stericycle, Inc., Steri-Safe Contract Litigation (before Judge Shadur in the Northern District of Illinois)
MDL No. 2454 - IN RE: Franck's Lab, Inc., Products Liability Litigation (before Judge Engelhardt in the Eastern District of Louisiana)
MDL No. 2469 - IN RE: Capatriti Brand Olive Oil Marketing and Sales Practices Litigation
MDL No. 2467 - IN RE: Bank of America, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2466 - IN RE: Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2465 - IN RE: JPMorgan Chase Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2464 - IN RE: HSBC Mortgage Corporation Force-Placed Hazard Insurance Litigation
MDL No. 2463 - IN RE: Fresh Dairy Products Antitrust Litigation (No. II)
MDL No. 2453 - IN RE: Adderall XR (Amphetamine/Dextroamphetamine) Marketing, Sales Practices and Antitrust Litigation
MDL No. 2456 - IN RE: Kashi Company Marketing and Sales Practices Litigation
Monday, July 22, 2013
The Northern District of Ohio, supervising multidistrict litigation alleging that Whirlpool's front-loading washing machines allow mold and mildew to grow in the machines, certified a class of Ohio purchasers for liability purposes. The Sixth Circuit affirmed. The Supreme Court granted Whirlpool's petition for certiorari, vacated, and remanded to the Sixth Circuit for reconsideration in light of Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013).
The Sixth Circuit just reaffirmed the class certification, despite Amgen and Comcast. Glazer v. Whirlpool Corp., No. 10-4188 (6th Cir. July 18, 2013).
Thursday, June 27, 2013
From The Legal Intelligencer, part 3 of 3:
Each state and federal court might have its own inviolable power to adjudicate cases and issue orders within its territory. But that does not stop judges from cooperating in the face of mass-tort litigation that arises both in state and federal court.
U.S. District Judge Barbara Jacobs Rothstein, of the Western District of Washington and a visiting judge to the U.S. District Court for the District of Columbia, said that for many years input was not obtained from state-court judges, but that has changed.
Wednesday, June 26, 2013
From The Legal Intelligencer, Part 2 of 3:
The number of mass torts filings in the United States hasn't seen a precipitous drop-off, but profit margins for the law firms defending those cases have taken a hit.
A confluence of events over the past five years has caused mass torts work, namely in the pharmaceutical space, to face increasing rate sensitivity. That has caused firms to either reconfigure their mass torts practices or de-emphasize the work altogether. Even some still involved with defending mass torts now use the once lucrative work more as a springboard for other assignments in practice areas facing less rate pressure.
Sunday, June 9, 2013
class actions (consolidated in an MDL in Minnesota) are notable for the whimsical names of their subclasses, the Soggy
Plaintiffs and the Cloggy Plaintiffs.
The Eighth Circuit upheld the settlement of several class actions
alleging damage caused by defective brass
plumbing fittings sold by defendants Radiant and Uponor. The Soggy Plaintiffs have already experienced
leaking (in some cases causing severe damage) and the Cloggy Plaintiffs have
not yet experienced leaks but have the same fittings.
"The proposed settlement agreement stipulated that after two leaks, soggy plaintiffs would be entitled to have their entire plumbing system replaced at Uponor and Radiant's expense. Cloggy plaintiffs who had demonstrated 'by way of a flow test that a differential in water flow . . . of more than 50% [exists] between the hot and cold lines' would also be entitled to replacement of their brass fittings, and if that proved insufficient, to a new plumbing system."
After notice of the proposed settlement had been sent, Ortega, a California resident, moved to intervene as of right. His motion was denied as untimely. He and 26 other class members then objected to the settlement, arguing that notice had been deficient, that the scope of the release of defendants was overbroad, and that the settlement did not account for a cause of action available under California law. All of these arguments were rejected and the district court's approval of the settlement was upheld. In re Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation, No. 12-2761 (8th Cir. June 7, 2013).
Sunday, June 2, 2013
Twelve Asbestos Plaintiffs' Claims Dismissed Under Rule 41(b) for Noncompliance with Administrative Order
The Third Circuit has upheld the dismissal of twelve plaintiffs' claims in the Asbestos MDL for failure to comply with an administrative order requiring them to include specific histories of their exposure to asbestos. The first paragraph of the opinion is:
This appeal comes to us from Multidistict Litigtion case number 875 ("MDL 875"), otherwise known as the "Asbestos MDL," involving asbestos cases from around the country, pending before Judge Robreno in the United States District Court for the Eastern District of Pennsylvania. The District Court, overseeing several thousand asbestos cases, dismissed the claims of twelve Plaintiffs pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based on non-compliance with the District Court's Administrative Order No. 12 ("AO 12"). Specifically, Judge Robreno determinated that the Plaintiffs' submissions were fatally flawed in that they failed to include specific histories of Plaintiffs' exposure to asbestos. Plaintiffs contend on appeal, as they did in the District Court, that AO 12 did not impose this requirement, and urge, alternatively, that even if it did, under a proper balancing of the factors we outlined in Poulis v. State Farm Fire and Casulaty Company, 747 F.2d 863 (3d Cir. 1984), dismissal with prejudice was not warranted. For the reasons discussed below, we will affirm the District Court's dismissal of the twelve cases at issue.
In re: Asbestos Products Liability Litigation, No. 12-2061 (3d Cir. May 31, 2013).
Friday, March 22, 2013
In the shameless self-promotion category . . .
I have posted on SSRN a draft of my article "Confronting the Myth of 'State Court Class Action Abuses' Through an Understanding of Heuristics and a Plea for More Statistics." The paper has been accepted for publication in the UMKC Law Review, Volume 82, No. 1 (2013).
The Supreme Court heard five cases involving class actions this term. One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time. Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" should justify removal of the case (which was based on state law and filed in state court) to federal court.
The charge of "state court class action abuses" echoes the same rhetoric that CAFA's supporters used in their ultimately successful efforts to pass the legislation. Hyperbolic assertions of a "flood of state court class actions" in which plaintiffs' lawyers were "abusing" the limits of diversity jurisdiction to keep cases in state court, and state courts were "abusing" the class action device by granting "drive-by" class certifications, fill the pages of CAFA's legislative history.
Unfortunately for the quality of the debate, then and now, no current data and very little past data about class actions are readily and publicly available, for federal or state courts. In other words, courts in the United States offer no data on such basic questions as the number of cases filed as class actions, the percentage of cases designated as class actions that are eventually certified as such, or the ultimate disposition of such cases.
To be sure, the herculean efforts of the Federal Judicial Center, the California Office of Court Research, and private academic researchers have resulted in the compilation of databases that provided partial answers to some of these questions. But these limited efforts are well beyond the resources and skill available to the public, the press, and even to most policy-makers and the Court.
What does the lack of baseline data on class actions mean? A wealth of psychological research has shown that human cognition and judgment are subject to a variety of heuristics and biases. For example, the mantra of "state court class action abuses" has a "priming effect" making it easier to see or imagine such "abuses." Further, the mind automatically attempts to create a coherent story out of the information it has, even if that information is incomplete or invalid. This manifests itself in many ways, including the "anchoring effect," the "availability heuristic," and the "representativeness heuristic," which are exploited by those spreading the myth of "state court class action abuses." Even if a person knew the base rate of class action filings or dispositions, for example, the "representativeness heuristic" would make it difficult to avoid making judgments about class actions based on negative stereotypical anecdotes. Without such base rates available at all, it will be almost impossible. One can only hope that the Court will resist the lure of class action mythology as it considers the five class action cases pending this term.
Friday, February 8, 2013
On February 6, Judge Keith Ellison in the Southern District of Texas granted in part and denied in part defendants' motion to dismiss the Second Amended Complaint in MDL No. 10-md-2185, In re BP p.l.c. Securities Litigation. The ruling was summarized in the National Law Journal as "allow[ing] investors to go forward on claims that BP and former chief executive officer Anthony Hayward misled the public about the scope of BP's operating management system, or OMS—a safety program introduced before the 2010 [Deepwater Horizon] disaster spread millions of gallons of oil throughout the Gulf of Mexico."
Friday, May 4, 2012
The story is reported by the National Law Journal here. The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.
Class members have until August 31 to object and until October 1 to opt out. The final fairness hearing is set for November 8.
Saturday, March 3, 2012
Friday, December 30, 2011
Friday, October 21, 2011
Alexandra Lahav (University of Connecticut) has posted The Case for Trial By Formula to SSRN.
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality will improve our civil justice system.
To date, the discussion about civil litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass torts context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others are treated in similar circumstances. This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.
Wednesday, September 21, 2011
Last week Judge Ellison of the U.S. District Court for the Southern District of Texas issued an order dismissing on forum non conveniens grounds a shareholder derivative suit against BP arising out of the Deepwater Horizon explosion and oil spill. See In re BP Shareholder Derivative Litigation, 2011 WL 4345209, MDL No. 10-md-2185 (S.D. Tex. Sept. 15, 2011). From the opinion (citations omitted):
The Court concludes that England, as the focal point of this litigation, is the far more appropriate forum. Because this derivative lawsuit involves the internal governance of an English corporation, the convenience of the parties and the interests of justice favor England as a more convenient forum. This case is unique because it is a derivative lawsuit involving the internal affairs of a foreign corporation. Indeed, because Plaintiffs are just a handful of the thousands of potential shareholders that could sue the individual defendants on behalf of BP, their choice of forum is accorded less deference than the typical home forum plaintiff in a traditional two party lawsuit. Moreover, because this lawsuit calls for an inquiry into the knowledge and actions of BP's Board of Directors, the lion's share of the relevant documents and the majority of the individual defendants are located in England. Given the decreased deference accorded to Plaintiffs' choice of an American forum, the private interest factors weigh slightly in favor of dismissal.
It is the public interest factors, however, that most strongly favor England as the appropriate forum in which to proceed with this case. These factors persuade the Court that this action should be dismissed. The primary concern of this derivative litigation is the internal affairs of an English corporation, and the suit seeks to recover damages for the benefit of BP only. Accordingly, England has a greater interest in the resolution of this dispute. Moreover, English law governs this dispute and will determine whether the individual defendants breached their fiduciary duties and harmed BP in the process. Thus, English law would predominate and, if the case were to continue here, the Court would be faced with the formidable exercise of interpreting and applying a still nascent and evolving body of foreign law. The Court would be saddled with not only the ordinary task of adjudication, but also the additional administrative tasks characteristic of derivative actions articulated in Koster. Dismissing this case would relieve this Court of the substantial burdens of such undertakings. Finally, the citizens of Louisiana should not be burdened, as factfinders, with the exercise of applying complex English law to determine whether the individual defendants harmed an English company through unlawful acts and inadequate oversight. As these public interest considerations counsel strongly in favor of dismissal, Defendants' Motion is hereby GRANTED.
(Hat Tip: Marc Poirier)
Thursday, September 1, 2011
There is only one federal court claim left in the 1500 case Fosamax MDL in the Southern District of New York. Although trial will begin on September 7, the judge granted partial summary judgment for Merck on several issues, including the fact that the plaintiff cannot seek punitive damages. The opinion relies heavily on the outcome of the previous cases, despite the fact that the plaintiff's injury occurred during a later time frame, thus possibly changing the facts as to Merck's knowledge of risks and defects.
This decision raises questions about not only res judicata, but the scope of "law of the case" in large MDLs in which the plaintiffs are still bringing their own suits in their own names. One wonders how this plaintiff would have fared in a non-MDL situation.
Friday, August 19, 2011
Judge Barbier in the Eastern District of Louisiana held a monthly status conference on August 12, 2011. The minute order entered thereafter hints at a plethora of civil procedure issues going on in the cases. At one point, without further explanation, the court “reminded parties of the public website for MDL 2179.”
--Patricia Hatamyar Moore
Saturday, July 30, 2011
Alexandra Rothman (Fordham Law Review) has posted a draft of her note Bringing an End to the Trend: Cutting "Approval"and "Rejection" Out of Non-Class Mass Settlement to SSRN.
In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand cases aggregated for efficiency purposes. Nonetheless, Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules, which provides for judicial approval of settlement in class actions, decided that the settlement was not enough. Hellerstein’s actions inspired a debate over whether judges have the authority to approve or reject settlements absent class certification. This Note continues this discussion, and in doing so, contends that the 9/11 “rejection” was part of a larger trend of judges “approving” non-class mass settlements, even though the Federal Rules do not sanction such conduct. In presenting this trend, this Note discusses three examples of non-class action, multidistrict litigation before turning to the 9/11 settlement. This Note concludes that judicial “approval” and “rejection” of settlement, although a pragmatic response to the burdens of mass litigation, is inconsistent with the Federal Rules and adversarial system, and therefore, courts should bring an end to this practice.
Sunday, July 24, 2011
The SDNY recently considered a motion to dismiss the third amended class-action complaint alleging federal and state antitrust violations by major record labels in selling music over the internet. In re Digital Music Antritrust Litigation, 2011 WL 2848195 (S.D.N.Y. July 18, 2011, No. 06 MD 1780).
Plaintiffs had added a claim under Illinois antitrust law on behalf of all Illinois-resident indirect purchasers. The Illinois statute at issue authorized a suit for damages by an injured private party, but provided that only the State Attorney General, not a private party, could “maintain a class action in any court of this State for indirect purchasers asserting claims under this Act.”
Applying Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010), the court first concluded that Rule 23 applied to the situation, but reached a different conclusion from Shady Grove on whether Rule 23 in this instance “abridge[d], enlarge[d], or modif[ied] a substantive right.” As to that question, the court held that Justice Stevens’ concurrence in Shady Grove formed the “narrowest grounds” and was therefore controlling over Justice Scalia’s plurality opinion.
Under Justice Stevens’ analysis of §2072(b), then, the court held:
[The Illinois indirect-purchaser] statute provides a procedure that is “so bound up with the state-created right or remedy that it defines the scope of that substantive right or remedy.” Shady Grove, 130 S.Ct. at 1450 (Stevens, J., concurring in part and concurring in the judgment). Therefore, applying the federal rule to override this process would be “an application of a federal rule that effectively abridges, enlarges, or modifies a state-created right or remedy” and is disallowed. Id. at 1451. Unlike the New York law at issue in Shady Grove, its limitation is not contained in a generally applicable procedural rule but, rather, in the same paragraph of the same statute that creates the underlying substantive right. In re Wellbutrin, 756 F.Supp.2d at 677. It applies only to that statute. Id. “Furthermore, courts have observed that the Illinois statute represents a policy judgment as to the feasibility of managing duplicative recovery, which the legislature has entrusted to the Attorney General but not to individual indirect purchasers.” Id. That policy judgment is substantive.
Thus, the court dismissed plaintiffs’ claim on behalf of indirect purchasers under Illinois law. (Numerous other claims, however, remain pending.)
Friday, July 1, 2011
Like Adam, I have also gotten into the Op-Ed game for Wal-Mart commentary. My Op-Ed appears in today's National Law Journal and explores the ways in which the 23(a)(2) analysis might leak into interpretations of the common question language found in other Federal Rules.
Monday, May 16, 2011
Sergio Campos (University of Miami) has posted Mass Torts and Due Process to SSRN.
Almost all courts and scholars disfavor the use of class actions in mass tort litigation, primarily because class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court has stressed the importance of litigant autonomy in other contexts, most recently in decisions involving the Rules Enabling Act, preclusion, and arbitration. Indeed, this term the Court will decide four cases involving class actions that will likely reaffirm the importance of protecting a plaintiff's autonomy over the claim. In all of these contexts the Court, and most scholars, have understood protecting litigant autonomy as a requirement of procedural due process.
In this article I argue that protecting litigant autonomy in the mass tort context is mistaken, and, in the process, challenge basic notions of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting litigant autonomy leads to more mass torts. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action.
I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. I argue that an interest in deterrence, understood as an individual interest in avoiding the tort altogether, should be included in the due process analysis. I also argue for a more impartial method to balance competing interests. I conclude that the law of procedural due process should permit mandatory collective procedures in mass tort and similar contexts. I further suggest that the law of procedural due process should focus less on procedural rights such as litigant autonomy, a "day in court," and even the opportunity to be heard, and focus more on often ignored aspects of procedural design.