October 9, 2008
12th Annual ABA National Institute on Class Actions
The 12th Annual ABA National Institute on Class Actions, which is being co-sponsored by the Mass Torts Committee, will take place on November 7, 2008 in New York City at the Marriott Downtown Hotel. Speakers include Judges Fred Biery (W.D. Tex), Shira Sheindlin (S.D.N.Y.), and Jack Weinstein (E.D.N.Y.); Professors John Coffee (Columbia) and William Rubenstein (Harvard); and attorneys John Beisner (O'Melveny), Elizabeth Cabraser (Lieff Cabraser), Michael Donovan (Donovan Searles), Cari Dawson (Alston & Bird), Vincent Esades (Heins Mills), Donald Frederico (Greenberg Traurig), Steven Glickstein (Kaye Scholer), Lynda Grant (Cohen Milstein), Deepak Gupta (Public Citizen), David Hamer (McCarthy Tetrault), Laurel Harbor (Shook Hardy), Cristina Hernandez-Malaby (Quarles & Brady), John Isbister (Tydings & Rosenberg), Daniel Karon (Goldman Scarlato), Katherine Kinsella (Kinsella/Novak Communications), James Muehlberger (Shook, Hardy), Scott Nelson (Public Citizen), Fern O'Brien (Arnold & Porter), Sylvie Rodrigue (Ogilvy Renault), and Charles Wright (Siskinds).
October 8, 2008
Mark Geistfeld on Tort Law
Professor Mark Geistfeld (NYU; picture left) has a new book, Tort Law: The Essentials (Aspen 2008).
Lilly Settles Zyprexa Marketing Claims with States for $62 Million
Article in the New York Times -- 33 States to Get $62 Million in Zyprexa Case Settlement, by Alex Berenson. Here's an excerpt:
Eli Lilly has agreed to pay $62 million to 33 states to settle claims that it improperly marketed Zyprexa, its top-selling drug, to patients who did not have schizophrenia or bipolar disorder, its only approved uses.
The settlement, to be announced Tuesday, ends an 18-month investigation led by the offices of the attorneys general of Illinois and Oregon, which contended that Lilly had violated consumer protection laws by urging doctors to prescribe Zyprexa to patients who did not need it.
It is the largest settlement paid by a drug company in a state consumer protection case, topping the $58 million that Merck paid to settle similar allegations about Vioxx, lawyers for the states said.
The agreement may also be a sign that a much larger deal is near in a separate but related civil and criminal investigation led by federal prosecutors in Philadelphia. In that case, Lilly is expected to pay more than $1 billion in fines and restitution to states and the federal government and may also plead guilty to a misdemeanor criminal charge related to off-label marketing of Zyprexa.
October 7, 2008
Procedural Justice in Nonclass Aggregation
I've just posted my most recent paper, Procedural Justice in Nonclass Aggregation, on SSRN. Here's the abstract:
Nonclass aggregate litigation is risky for plaintiffs: it falls into the gray area between individual litigation and certified class actions. Although scholars have formulated procedural protections for both extremes, the unique danger and allure posed by nonclass aggregation has been undertheorized, leaving mass tort claimants with inadequate safeguards. When hallmark features of mass torts include attenuated attorney-client relationships, numerous litigants, and the demise of adversarial legalism, the attorney-client relationship itself becomes another bargaining chip in the exchange of rights. This Article thus takes the initial steps toward advancing a cohesive theory of procedural justice in nonclass aggregation by exposing the problem itself, discerning the principal disparities between litigant preference and mass tort practice, and identifying the main obstacles to implementing procedural preferences. In so doing, it observes that procedural justice is context-dependent and thus a matter of perspective. Claimants’ perspectives and procedural preferences vary depending on whether they view themselves as part of a group or a collective. Accordingly, this Article introduces a continuum for evaluating group cohesion and designates two new points along that continuum—“individuals-within-the-collective” and “group-oriented-individuals.” It concludes by sketching some preliminary observations about tailoring process to meet the needs of these different plaintiffs and the inherent barriers to implementing procedural justice.
I'm working now on the prescriptive part of the analysis now and hope to have it posted over the course of the next few months.
October 6, 2008
More on the Altria v. Good Oral Argument
- The government sided with the plaintiffs on the implied preemption quesiton, but only on that question.
- But the judges weren't buying it - asking why the FTC hasn't regulated these misleading ads since they know about them for some time. Justice Scalia said: “When did the Commission know this stuff? I had a case when I sat on the Court of Appeals, so it had to be before 1984…It’s been general knowledge for a long time, and the FTC has done nothing abput it.”
- The defendants oral argument focused on the express preemption issue only. Denniston quotes the following exchange between the defendant's lawyer, Theodore Olson, and Justice Scalia --- Olson: “I’d like to spend no time on the implied preemption argument." Justice Scalia: “Good idea.”
SCOTUS Hears Oral Argument in Altria Group v. Good
After turning away those cases and dozens of others that accumulated during the summer, the court heard arguments in a tobacco case and suggested it would side with tobacco companies in their fight to block lawsuits over deceptive marketing of "light" cigarettes.
Several justices were skeptical that state laws against fraudulent advertising could be used to sue the makers of "light" and "low-tar" cigarettes when a federal law on cigarette labeling rules out lawsuits that involve smoking and health.
"How do you tell it's deceptive or not unless you look at smoking and health?," asked Chief Justice John Roberts.
Three Maine residents sued Altria Group Inc. and its Philip Morris USA Inc. subsidiary under the state's law against unfair marketing practices. The class-action claim represents all smokers of Marlboro Light or Cambridge Light cigarettes, both made by Philip Morris.
October 5, 2008
Impermissible Client Solicitation After Metrolink Crash in L.A.
Article in the L.A. Times -- Lawyers swoop in after the Metrolink crash, looking for clients: State bar officials cite possible professional sanctions, but the aggressive attorneys note that time is limited and the stakes are expected to be very high, by Carol J. Williams. Thanks to Robert Glassman for bringing the article to my attention. Here's an excerpt:
The phone rang at a rare moment between Angie Akins' frantic drives from her home and her husband's bedside in an intensive-care unit, between shuttling to her job and driving her 14-year-old daughter to after-school sports and ballet.
It was a lawyer who'd spotted her husband's name among those badly injured in the Sept. 12 Metrolink crash in Chatsworth. An attorney she had never met was urging her to retain him and sue the government railroad for all it was worth. Only a week had passed since her comfortable suburban life had been upended by tragedy.
"I didn't even write down the name, I was so upset at the time," Akins recalled. "I said I couldn't think about a lawsuit now when my husband might be dying!"
FDA Says Small Amount of Melamine Not Harmful to Adults
Article on cnn.com -- FDA: Tiny amount of melamine not harmful to adults. Here's an excerpt:
Eating a tiny bit of a melamine, the chemical responsible for a global food safety scare, is not harmful except when it's in baby formula, U.S. food safety officials said Friday.
Melamine-tainted formula has sickened more than 54,000 children in China and is being blamed for the deaths of at least four tots. The chemical has also turned up in products sold across Asia, ranging from candies, to chocolates, to coffee drinks, that used dairy ingredients from China. Authorities in California and Connecticut have found melamine in White Rabbit candies imported from China.
But infant formula made in the U.S. is safe, because manufacturers do not use any ingredients from China.
Cadbury Recalls Candy Because of Melamine Contamination
Article on cnn.com -- 'High level of melamine' in two Cadbury products. Here's an excerpt:
Hong Kong authorities Sunday announced that two recalled candy products made by British confectioner Cadbury had high levels of melamine.
The industrial chemical has recently been found in Chinese-made milk products that have sickened nearly 53,000 children in China, killing four.
Countries around the world have since banned the import of Chinese products containing milk, or have withdrawn products that contain milk from China -- such as candy -- amid worries they contain melamine.