Friday, August 1, 2008
Jon Bauer (Connecticut) has recently posted an important article on SSRN on the ethics of settlements that impede other parties' access to evidence entitled "Buying Witness Silence: Evidence Suppressing Settlements and Lawyers' Ethics." This issue is relevant to the civil rights context and products liability. Here is the abstract:
Lawyers frequently draft settlements that impede other parties' access to relevant evidence, through clauses that prohibit the plaintiff from making voluntary disclosures to anyone with a claim against the defendant, or forbid all uncompelled disclosures concerning the facts underlying the dispute. This Article argues that lawyers who negotiate these "noncooperation" agreements violate Rule 3.4(f) of the Model Rules of Professional Conduct, which prohibits requesting someone other than the lawyer's own client to withhold relevant information from another party, and Model Rule 8.4(d), which prohibits "conduct that is prejudicial to the administration of justice."
The conventional wisdom among practitioners and legal ethics scholars has been that lawyers may ethically negotiate any settlement terms that serve their clients' interests and are not criminal or fraudulent. (Some recent critics of settlement secrecy have argued that noncooperation settlements violate obstruction of justice statutes or other criminal laws, but the illegality argument is largely unconvincing.) This Article argues that the conventional view has looked at the problem through the wrong lens. In the ethos of the ethics codes, third party and societal interests generally take a back seat to client service, but certain types of conduct deemed especially harmful to the justice system have long been placed off-limits to lawyers because of their special role as "officers of the court."
This Article traces the history of one such duty, the principle that lawyers must not ask nonclients to refrain from voluntarily disclosing relevant information to other parties or their attorneys, and shows the important function that it plays in safeguarding the integrity of adversary adjudication. After providing a theoretical justification for liberally construing ethics rules that limit client advocacy for the sake of the adversary system's effective functioning, this Article explores what the rules mean for settlement practices. The Article examines how far the duty to allow disclosures of relevant information to other parties extends; the scope of the exception allowing noncooperation requests to be made to a client's employees; whether it is permissible to require that certain types of information, such as settlement amounts, discovery materials, privileged information, and trade secrets, not be disclosed; and what limits may be placed on the manner of disclosure. The conclusion addresses the critique that prohibiting lawyers from negotiating agreements that their clients could lawfully enter into on their own is either futile or paternalistic, and shows that it is neither.
Robin Effron (Brooklyn Law) recently posted an article entitled "Disaster-Specific Mechanisms for Consolidation" on SSRN (and forthcoming in the Tulane L. Rev.). Here is the abstract:
Within the past decade, two large scale catastrophes - the terrorist attacks of September 11, 2001 and Hurricanes Katrina and Rita - have been the recent laboratories of new congressional provisions for the federalization and aggregation of mass tort claims. In the case of September 11, the litigation has been shaped by the Air Transportation Safety and System Stabilization Act (ATSSSA) an aggregation device that Congress devised specifically to address that particular catastrophe.
The Hurricane Katrina litigation has seen the use (and attempted use) of the Multiparty, Multiforum Trial Jurisdiction Act (MMTJA), an event jurisdiction device of general application that Congress established in 2002. This article explores three aspects of post-catastrophe litigation where the consolidation of cases, or the statutes that govern the consolidation of such cases, raise issues about how to think about disaster litigation as a singular category. After providing a brief summary of the paths of the September 11th and Canal Breach litigations, this article demonstrates that when the boundaries of federal jurisdiction are shaped by reference to events, this affects how cases may be consolidated, particularly with respect to Congress's degree of specificity in naming an event as the organizing principle of jurisdiction. These two federal statutes challenge courts to consider how closely, as a matter of law, federal jurisdiction based on the ATSSSA and the MMTJA and the consolidation of cases must be linked under these respective statutes. The article then turns to a discussion of the role that courts of appeals play in determining the boundaries of federal jurisdiction and consolidation for disaster litigation. The article ends with a discussion of the practical and administrative concerns of consolidated disaster litigation. I argue that the September 11th and Canal Breach litigations show that there can be a problem for judges and litigants of sorting common from uncommon issues in the context of a district-wide consolidation organized around an event.
Thursday, July 31, 2008
Skadden has posted the July 2008 issue of Class Action Chronicle, which includes several interesting, brief comments by Skadden lawyers, including Communicating Ethically with Class Members, by David Clancy; an interview with Raoul Kennedy on defending class action trials; and an editor's note by Russell Jackson on trends in consumer class actions.
Wednesday, July 30, 2008
Bruce Weber of the New York Times reports that Dr. Jules B. Richmond, known for founding Project Head Start and campaigning against the tobacco industry, died Sunday. Here's an excerpt:
In his 80s, [Dr. Richmond] testified in two trials involving flight attendants that secondhand smoke was responsible for their ill health.
One of those cases, a class-action suit involving a flight attendant who developed lung cancer though she had never smoked, led to a $300 million settlement in 1997 that included starting a research institute to study tobacco-related diseases. In the second case, a class action on behalf of Florida smokers, a court awarded $145 billion in punitive damages against six tobacco companies, the largest such award in history until it was overturned by an appeals court.
Tuesday, July 29, 2008
Last week the Ninth Circuit overturned a district court judge's sua sponte class certification in Bonlender v. American Honda Motor Co., Inc., 2008 WL 2873264 (9th Cir. July 22, 2008). Apparently the district court failed to make any Rule 23(a) or (b) findings and did not analyze whether variations in laws of the four states involved defeated Rule 23(b)(3)'s predominance requirement. The Ninth Circuit also reassigned the case to a different district court judge on remand. This is the first time I've heard of a sua sponte class certification and would be interested to know of other instances and their outcomes.
Sunday, July 27, 2008