Friday, October 17, 2008
While doing research for the successor to my piece on Procedural Justice in Nonclass Aggregation, I came across a comment to a Wall Street Journal article on Vioxx litigation that referred me to a member's only Yahoo! group discussing Merck's settlement terms. There are nearly 500 members and over 11,000 posts by plaintiffs and their attorneys (my request for membership is still pending). My question is: how common is this and does this new ability to communicate en masse decrease the informational deficiencies that typically exist between claimants and between claimants and their attorneys? If you have any information on this new phenomenon, I would love to hear from you either by e-mail or comment. Thanks!
James Anderson of RAND has posted his latest working paper titled "Understanding Mass Tort Defendant Incentives for Confidential Settlements: Lessons from Bayer's Cerivastatin Litigation Strategy." Here's the abstract:
Settlement agreements that require a plaintiff not to disclose or publicize any information about her claim are both common and controversial. Under some conditions, however, a mass tort defendant will rationally choose to discourage such secrecy. A defendant can use publicity to act as a commitment device akin to a most-favored-nation agreement to increase its bargaining power with plaintiffs. The paper uses the real world example of Bayer's cerivastatin litigation as a case study to illustrate this theory in practice and to explore the public policy implications of this finding.
Wednesday, October 15, 2008
The Washington Legal Foundation has published a Contemporary Legal Note, Causation In Court: Working Principles For Toxic Tort Cases, by Antony Klapper (Reed Smith; picture, left).
The Ventura County Star has an article, Oak Park man focuses on the positive after surviving Metrolink crash: Though seriously hurt, he says he's 'fortunate to have survived,' by Kitty Dill. Here's an excerpt:
Michael R. McReynolds considers himself lucky to be at home in Ventura County, recuperating and able to enjoy his 50th birthday on Sept. 30.
The Oak Park resident survived the Metrolink crash Sept. 12.
"I feel very fortunate to have survived, actually," said McReynolds, who was on the commuter train when it slammed head-on into a freight train in Chatsworth.
When the locomotives collided, McReynolds likely was in his usual second-car location, but he's not sure. He had only partial recall afterward at Holy Cross Hospital in Mission Hills.
Mike Scarcella has an article today in the Legal Times that provides the latest report on Big Tobacco's oral argument before the D.C. Circuit. Here's an excerpt:
Sentelle and Tatel -- who dominated the nearly three hours worth of argument, held in the court's ceremonial courtroom -- questioned whether Kessler and the government sufficiently and clearly identified the acts that make up a pattern of racketeering activity. Sentelle explored the extent to which a corporation, beyond any individual employee, can be found to have a specific intent to defraud.
"They had to turn our entire industry into something like the Gambino family," argued Jones Day partner Michael Carvin, who represented Philip Morris with Gibson, Dunn & Crutcher partner Miguel Estrada. RICO laws, established in 1970 to take on the mob, are commonly used in the criminal arena.
In her decision, which followed a nine-month bench trial, Kessler ordered the tobacco industry to stop using descriptions such as "light" and "low-tar" on cigarette boxes. The judge also issued a permanent injunction. "It places the entire conduct of a corporation's business at the peril of a summons or contempt," Estrada argued.
Tuesday, October 14, 2008
The National Law Journal reported last week on the Vioxx litigation in an article titled "Persistence Pays in Vioxx Litigation." (Oct. 6, 2008 at S3). It quoted Tom Girardi, who filed the first Vioxx case, as noting that the lesson from Vioxx was to settle early rather than losing billions in bad publicity. On the flip side, Richard Nagareda noted that Merck's strategy of resisting settlement off the bat was largely successful, resulting in a lower payout per claimant. The article concludes by observing that all eyes are on Wyeth v. Levine, No. 06-1249, which is pending before the Supreme Court and addresses FDA pre-emption.
Monday, October 13, 2008
Article in AmLaw Daily -- Ortho Evra Settlements Quicken Ahead of SCOTUS Preemption Review, by Brian Baxter. Here's an excerpt:
Bloomberg reported on Friday that Johnson & Johnson has paid roughly $68.7 million to settle hundreds of lawsuits filed by women who claim the company's Ortho Evra birth-control patch adversely affected their health.
According to Bloomberg, over 4,000 complaints have been filed in federal and state courts by plaintiffs claiming they've suffered blood clots, heart attacks, and strokes as a result of the high levels of estrogen released by the birth-control patch, which is manufactured by Raritan, N.J.-based J&J subsidiary Ortho-McNeil Pharmaceutical. With the approval of the FDA, J&J voluntarily agreed to strengthen the warning label on the patch several times since its release in 2002.
Bloomberg has a more detailed article on the settlement.
Philip Morris Brings First Amendment Challenge Against San Francisco Ban on Selling Cigarettes in Drug Stores
Article in AmLaw Daily -- Munger Reps Philip Morris in Unprecedented Tobacco Sales Ban Case, by Zach Lowe. Here's an excerpt:
In 2001 the U.S. Supreme Court upheld the right of tobacco companies to advertise in stores over the objections of Massachusetts officials. Now the city of San Francisco is trying a different tactic to curb cigarette sales: banning them altogether. A law that went into effect on Oct. 1 prohibits the sale of all tobacco products in drug stores, including retail chains like Rite Aid that also house pharmacies.
Philip Morris is challenging the case, and they've turned to longtime counsel Munger, Tolles & Olson to come up with a novel argument against the San Francisco law. The lawyers are claiming that the regulation violates the First Amendment because it effectively forces tobacco companies to pull the advertising that accompanies its products in drug stores. Munger lawyers cited the 2001 case, Lorillard Tobacco v. Reilly, a matter argued in part by a team at Latham & Watkins.