Monday, August 31, 2009
Drug & Device Law analyzes a recent federal decision denying remand when one defendant is a citizen of the state where the action was originally filed, but that defendant had not yet been served at the time of removal. Because the plaintiff was from out of state, diversity jurisdiction existed; but federal rules prevent removal if one of the defendants "joined and served" (emphasis added) is a "citizen of the State in which such action is brought."
Sunday, August 30, 2009
Friday, August 28, 2009
Professor Lahav's post on Community, Network, and Class Action raises an interesting point: what do people want from litigation? My contention isn't that people litigate in order to create a community, but that notions of community can begin to fill in participation desires that large-scale litigation (particularly non-class aggregation where individuals tend to expect their day in court) lacks. I often return to Tamara Relis's article, "It's Not About The Money!: A Theory on Misconceptions of Plaintiffs Litigation Aims," in which she describes people's motivations in litigating medical injuries as wanting the defendant to admit responsibility, ensuring that the event would never happen again, revealing cover-ups, needing answers, and wanting to punish others. Thus, unlike these latest cases, which focus on speech, privacy, and publicity, people in personal injury and product liability cases may want different things. Part of what the procedural justice literature suggests that they want is process, including opportunities to be heard and to participate in the litigation. Consequently, "Litigating Groups," is (in part) about using community as a proxy for the lack of participation in non-class aggregation. Of course, Lahav is right: class action members may have few or no process-based expectations. In fact, they might not even realize that they're part of a class action. The "day in court ideal" is thus less prevalent for class members than for those involved in non-class aggregation such as the Vioxx litigation.
I'm now working on the successor to "Litigating Groups," which is currently titled "Litigating Together: Social, Moral, and Legal Obligations." It begins with the observation that we live our lives from two perspectives: the personal and the collective. It is the commingling of the personal and the collective in mass litigation that makes it so complex from a group dynamic perspective. It then suggests ways to implement the theoretical framework in Litigating Groups. I'm also in the beginning stages of drafting a symposium piece tentatively titled "Aggregation, Community, and the Line Between," which engages the question of why we place so much emphasis on pre-existing communities in large-scale litigation and where we might end up if group cohesion is real, regardless of whether it predates or postdates the decision to sue.
Should others have additional thoughts about this, I'd love to hear them, either in the comments or by email (eburch at law.fsu.edu).
The most recent BNA Class Action Reporter describes a privacy lawsuit filed by Facebook users alleging that Facebook "a data mining company disguised as a social network, and has repeatedly violated users' privacy, engaged in illegal advertising, and misappropriated users' names and likenesses as a routine part of its business." The suit, Melkonian v. Facebook Inc., was filed in California on August 17 (see Cal. Super. Ct., No. 30-2009 00293755, 8/17/09).
This reminds me of the work of two of my fellow bloggers. Byron Stier has written about mass tort litigation as network (see his paper on SSRN) and Elizabeth Burch has written on the concept of "community" in aggregate litigation (see her paper on SSRN as well). I think Burch's work in particular speaks to a larger desire to create community in an increasingly atomized world and is in the same vein as the "third place" literature in sociology -- that is, the idea that people need a place beyond work and home to connect with one another: the bowling alley, the soccer field, the Starbucks. We Americans are torn between a strong tradition of individualism and a desire to find our place in a community and we see the same themes and tensions repeated in the context of litigation. Yes, there is the tradition of the day in court ideal. But at the same time we have a very robust class action regime - probably the most robust in the world - and increasingly the use of aggregate litigation serves the same function in areas where the possibility of class treatment has been cut off. What do we make of this desire?
It seems to me that litigation is more about speech than connection, and that is what makes these latest class actions that are directly about speech, publicity and privacy (such as this Facebook suit or the Google settlement) so interesting. The power of creating a collective lawsuit is really the power of voice, but its an anemic type of participation in the deep sense of the term. That's why non-utilitarians have such a hard time with it. (This struggle is set forth in a very good article by Lawrence Solum, Procedural Justice, available on SSRN). That is also what bothers ethicists about settlements like that in the Vioxx litigation, for similar reasons. That is, the value of the individual in his own right rather than looking only to the collective good. A closer look at our history demonstrates that participation has always been a bit more ideal than real. For a discussion of this history in the academic literature see Robert Bone, Rethinking the Day in Court Ideal and Non Party Preclusion, 67 New York University Law Review 193 (1992) (unfortunately not available on SSRN) and Issacharoff & Witt, The Inevitability of Aggregate Settlement (available on SSRN).
Thursday, August 27, 2009
Margaret Williams (Federal Judicial Center) and Tracey George (Vanderbilt) have posted to SSRN their article, Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation. Here's the abstract:
This paper provides the preliminary results of a convenience sample of ninety MDL orders from 2003 to 2009. The study investigates the rationale for transfer of federal civil litigation by the Panel, where cases are assigned, and to whom. The purpose of the analysis is to identify factors that explain past transfers by the Panel, both to particular districts and judges. The results provided here represent a draft paper submitted to the Conference on Empirical Legal Studies for possible presentation at its annual meeting in November 2009.
Tuesday, August 25, 2009
Monday, August 24, 2009
In his July 14 Forbes column, Vanguard or Rearguard?, Richard Epstein (Chicago & NYU) recounts the history of the FDA, as well as other regulatory frameworks, and concludes that "[r]egulatory failure is, on average, a far greater risk than market failure."
The Wall Street Journal has an article today discussing the trend, accelerated by the recession, of replacing billable hours with flat fees. Amy Schulman, general counsel for Pfizer, is quoted in the article, and the Journal also provides a video of Amy Schulman discussing Pfizer's new flat-fee approach with their law firms. Prior to joining Pfizer, Schulman lead the mass tort/class action practice at DLA Piper. (For more on Schulman, see my prior post.)
Neither the article nor video specifically mention whether Pfizer will use flat fees to pay defense lawyers in mass torts, though it is suggested since Schulman says all of the Pfizer Legal Alliance firms (all 16 of them) will be paid by flat fees. Are mass torts sufficiently predictable that flat-fee arrangements can be negotiated? If so, it supports the notion that the initial Wild West mass torts era has settled into a more orderly approach. One way to make flat fees more viable for mass torts would be to peg flat fees to each procedural stage of a mass tort, with an additional exit price attached to negotiating a far-reaching settlement; of course, given the many variables of a mass tort, flat fees for any procedural stage would likely need to be separately negotiated for each mass tort -- which would also have the benefit of forcing client and lawyer to think early about their overarching mass tort strategy.
Sunday, August 23, 2009
For a past article of mine that set forth problems in the main study underlying the opinions of plaintiffs' experts in the phenylpropanolamine (PPA) litigation, see here.
I've mentioned in previous posts that the Civil Justice Council recommended using collective actions in Europe in its report, "Improving Access to Justice through Collective Actions." The U.K.'s Ministry of Justice has recently published its response to the report in which it unequivocally stated that it "does not support the introduction of a generic right of collective action." Here are a few of the key points that the Government makes in its summary:
• In particular, regulatory options should be considered before introducing court based options. For example, in some sectors it might be appropriate to give regulators power to order the payment of compensation.
• The distinction between opt-in and opt-out models for collective actions is not necessarily clear cut. They are to some extent part of a continuum. There are several options depending on the stage of proceedings at which the class is closed. Some of these may combine the features and benefits of both models.
• The issue of who may bring collective actions is best determined sector by sector. Different criteria and methods of authorisation may apply (including authorisation by the court on a case by case basis).
• The existence of effective ADR mechanisms in any collective action procedure will be crucial. So too will strong case management by the court, including merits and cost-benefit criteria.
• The ‘loser pays’ principle for costs should be maintained to help deter unmeritorious litigation.
• The Government will develop a framework document setting out the issues to be addressed when introducing a right of collective action, with options and, where appropriate, a preferred approach. This will act as a ‘toolkit’ for policy makers and legislators.
• The Ministry of Justice will work with the Civil Justice Council and Civil Procedure Rule Committee to develop flexible generic procedural rules within which any collective action scheme can operate.
My take based on the U.S. experience is that the government is often a poor sole monitor. One need not look too far into the FDA's very recent history to find fault. For those who are interested in this general topic, NYU Law Review hosted a symposium on Tort Law in the Shadow of Agency Preemption and I've written about it a bit here and here.
Thursday, August 20, 2009
Anita Bernstein (Brooklyn) has posted to SSRN her article, Asbestos Achievements. Here's the abstract:
This Article defends a much-maligned cohort of lawyers by pointing out their unique accomplishments. Critics of the asbestos plaintiffs’ bar call these advocates greedy, unethical, and over-enriched. Regardless of the merits of the accusations, any judgment of these lawyers must also recognize what they achieved. American legal doctrines, both substantive and procedural, had stood in the way of asbestos plaintiffs’ claims. The vigorous advocacy and creative challenges that overcame these barriers should inspire all lawyers who seek to perform effectively in behalf of clients.
Kenneth Klein (Cal Western) has posted on SSRN his article, Ashcroft V. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores. Here's the abstract:
Over the course of the last two centuries, the realities of modern civil litigation and the traditional interpretation of the Seventh Amendment have been on a collision course. The recent Supreme Court Opinion in Ashcroft v. Iqbal, heightening the pleading standards under Rule 8, is the point of impact. The thesis of this Article is that while the Iqbal Opinion fails even to acknowledge a potential conflict with the Seventh Amendment, the decision interprets Rule 8 in a manner that is unconstitutional when measured against the traditional interpretation of the Seventh Amendment.
Wednesday, August 19, 2009
The ABA/BNA Lawyers Manual on Professional Responsibility reports that Judge Merrick Garland overturned a sanction against a lawyer who failed to distinguish between facts and inferences in his memorandum opposing summary judgment. Judge Garland wrote: “There is no basis in the text of Rule 11(b)(3) for the legal proposition that an attorney must separately identify ‘fact’ and ‘inference.’ ” Lucas v. Duncan, D.C. Cir., No. 07-5264, 7/31/09.
The magistrate judge below had imposed the sanctions ($3,500) sua sponte. The spurious distinction between a "fact" and an "inference" (which, after all, is a finding of fact based on circumstantial evidence) was rightly put to rest in the opinion.
The magistrate also apparently ruled that sanctions were appropriate because the motion told a one sided story - he believes that lawyers have an obligation to present evidence for both sides. Judge Garland rightly ruled that the lawyer is under no such obligation. A good lawyer ought to construct a narrative that can account for bad facts, but no rule in our adversarial system requires lawyers to recite the facts for the other side.
I should also note that the underlying case was for age discrimination. Studies have shown that Rule 11 sanctions are more common in civil rights cases.
Tuesday, August 18, 2009
Attorneys William Gallion and Shirley Cunningham Jr. were sentenced yesterday to 25 and 20 years, respectively, for defrauding clients out of millions of dollars in connection with a settlement of fen-phen claims. They were ordered, in addition, to pay over $127 million in restitution and to forfeit $30 million to the government. Both were already disbarred. Although lighter than the prosecutors recommended, these sentences mean that Gallion and Cunningham will probably spend most of the remainder of their lives in prison; both men are in their 50s and the federal system does not allow parole. The defendants plan to appeal.
According to this news report from the Louisville Courier-Journal, U.S. District Judge Danny Reeves said that both lawyers were guilty of "unbridled greed" and neither showed "a grain of remorse." Had they taken what they were entitled to, each would have earned millions of dollars in legitimate fees, but Judge Reeves said that it “appears to the court that they just wanted more.” Bloomberg reports that the judge stated that the sentences are intended to deter other lawyers from stealing settlement funds.
The case involved a settlement of over 400 fen-phen plaintiffs who had opted out of the nationwide diet drugs settlement class action reached by Wyeth (formerly American Home Products). After thousands of plaintiffs nationwide opted out of the settlement class action, Wyeth proceeded to negotiate aggregate settlements with plaintiffs' law firms around the country. In Kentucky, a state court had certified a fen-phen class action for litigation but Wyeth negotiated a settlement of the individual clients' claims on condition that the class be decertified. The attorneys -- Gallion, Cunningham, and Melbourne Mills -- had individual retainer agreements with their clients that provided for contingent fees of 30% and 33%. The government charged that the lawyers took far more than they were entitled to. It charged that the lawyers lied to their clients about the settlement allocations, took millions of dollars in court-awarded fees in addition to their contingent fees, and took millions more to set up a foundation called the Kentucky Fund for Healthy Living that would pay them as salaried managers. Mills was initially charged along with Gallion and Cunningham, but he was acquitted in an earlier trial where he successfully contended that he was too drunk to have been guilty of the crime. According to the Bloomberg report, Gallion and Cunningham tried to avoid responsibility by arguing that they didn't understand what they were doing and were following another lawyer's advice: "Lawyers for Gallion and Cunningham argued that they were innocent, inexperienced in handling large awards in class-action suits and made mistakes. They tried to blame Cincinnati lawyer Stan Chesley for many of the men’s decisions."
At the trial, I testified for the government as an expert on questions of civil procedure and legal ethics. The case raised questions about the intersection of class actions and non-class aggregate settlements and about lawyers' duties in connection with class and non-class settlements. The court, after a Daubert hearing, agreed with my analysis of the issues and disqualified the defendant's expert from testifying, finding his proposed testimony unreliable. U.S. v. Gallion, 257 F.R.D. 141 (E.D. Ky. 2009).
In one of many odd twists, the case captured the attention of sports fans because Gallion and Cunningham were part owners of the champion racehorse Curlin.
Monday, August 17, 2009