Friday, September 25, 2009
BNA Class Action Reporter notes that a class action brought against Airbus on behalf of the 77 persons that perished when a plane went down near Brazil in July 1007 was dismissed on Forum Non Conveniens grounds. The case will have to be litigated in Brazil. See Tazoe v. TAM Linhas Aereas, S.D. Fla., No. 07-21941-CIV, 8/21/09.
Readers interested in the topic of class actions in Latin America will want to read my colleague Angel Oquendo's article: Upping the Ante: Collective Litigation in Latin America, 47 Colum. J. Transnat’l L. 248 (2009).,
Two more voices have been added to the discussion of pleadings and the significance of the Twombly/Iqbal line of precedent. They are Robert Bone (Boston U/U Texas) and Ed Hartnett (Seton Hall), two prominent civil procedure scholars that are very much worth reading.
First, Robert Bone has posted a follow up to his pleadings article in "Plausibility Pleading Revisited and Revised" on SSRN. The piece is forthcoming in Notre Dame Law Review. Here is the abstract:
This Essay critically examines the Supreme Court’s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a 'two-pronged approach' that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.
Second, Ed Hartnett has posted "Taming Twombly" (nice title!) on SSRN. The piece is forthcoming in Penn Law Review Here is the abstract:
In Bell Atlantic v. Twombly, the Supreme Court held that an antitrust complaint alleging that major telecommunication providers engaged in parallel conduct unfavorable to competition could not survive a 12(b)(6) motion to dismiss, even though the complaint expressly alleged a conspiracy. The Court insisted that a complaint contain 'enough facts to state a claim to relief that is plausible on its face,' and concluded that a conspiracy, while 'conceivable' was not 'plausible.' In addition, the Court retired the famous language from Conley v. Gibson that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Scholarly reaction to Twombly has been largely critical, complaining that the Court imposed a heightened specificity standard of pleading and that plaintiffs will lack the evidence to plead these specifics prior to discovery. Some suggested that Twombly’s requirement of plausibility should be understood as an aspect of substantive antitrust law, thereby limiting the impact of the decision largely to antitrust cases. Others suggested that Twombly should be limited to large, complex, sprawling cases, given the Court’s evident concern with the cost of discovery in such cases. These hopes of limiting Twombly were dashed by the Supreme Court’s decision in Ashcroft v. Iqbal, which held that the Twombly framework applies to all civil actions. Faced with the failure of the attempt to limit Twombly, some have called for a legislative restoration of Conley v. Gibson. This article takes a different tack. Rather than decrying Twombly as a radical departure and seeking to overturn it, this article instead emphasizes Twombly’s connection to prior law and suggests ways in which it can be tamed. First, the plausibility standard of Twombly can be understood as equivalent to the traditional insistence that a factual inference be reasonable. Second, the Twombly framework can be treated as an invitation to present information and argument designed to dislodge a judge’s baseline assumptions about what is natural. Third, and despite widespread assumption to the contrary, discovery can proceed during the pendency of a Twombly motion. This paper also suggests that the traditional practice of pleading 'on information and belief' be retired, and connects a tamed Twombly to broader trends toward managerial and discretionary judging.
Hartnett's point that discovery can proceed during the pendency of a 12b6 motion is interesting and very important to practioners if it bears out. I haven't read the papers yet but both deserve a close look.
Tuesday, September 22, 2009
Stephen Yeazell (UCLA) has a new casebook out called "Contemporary Civil Litigation" (Aspen 2009) that integrates civil litigation and ethics issues. While I ordinarily wouldn't blog about a casebook, Yeazell's Civil Procedure coursebook and especially the teacher's manual is really excellent, and I imagine this book will be too. What I particularly like is that the book has a section devoted to litigation finance and litigation risk control.
Friday, September 18, 2009
The FDA recently sent a warning letter to Bayer, which manufacturers Yaz and Yasmin (both types of birth control pills), that it has quality control problems at its German plant. The FDA claims that Bayer's testing method averaged out the test results as opposed to reporting results for each batch. Bayer had the batches shipped to the U.S. between 2007 and 2009.
This news is simply the most recent concern about Yaz. Litigation is already pending in Pennsylvania in front of Judge Sandra Mazer Moss of the Philadelphia Court of Common Pleas, alleging that the drug causes severe side effects including blood clots, strokes, heart attacks, gallbladder disease, deep vein thrombosis, pulmonary embolisms and even sudden death. There has been some speculation around the internet that the FDA will recall the drug. As the U.S. Recall News reports:
"In July 24, 2009, a petition was filed to consolidate the many lawsuits against Bayer over Yaz and Yasmin into a multidistrict litigation (MDL). There is a hearing scheduled for September 24, 2009 to decide whether or not they will be consolidated."
"Andrew Gillin, an attorney handling several California Yaz lawsuits says the litigation is still in the early stages. “A petition has been filed to combine all of the federal lawsuits into a multi-district litigation (MDL) case. Later this month, a panel of federal judges will determine whether the cases involve sufficiently common questions of fact, and whether or not to consolidate,” explained Mr. Gillin."
Thursday, September 17, 2009
Kansas Law Review's symposium this year is titled "Aggregate Justice: Perspectives Ten Years After Amchem." Here's the official blurb and the line-up of speakers:
Friday October 30, 2009
Green Hall, 1535 W. 15th Street, Lawrence, Kansas 66045
We are excited to announce this year’s Kansas Law Review Symposium, which will focus on the present and future of aggregate litigation, using Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999), as a springboard for this exploration. The Symposium will feature a number of well-known speakers in the field of aggregate litigation. The event will be held on October 30, 2009, at the University of Kansas School of Law in Lawrence, KS.
Speakers and their affiliations:
- Elizabeth Chamblee Burch (J.D., Florida State University College of Law) is an Assistant Professor of Law at the Florida State University College of Law.
- Howard M. Erichson (J.D., New York University School of Law) is a Professor of Law at the Fordham University School of Law.
- Steven S. Gensler (J.D., University of Illinois, Urbana-Champaign) is the Welcome D. and W. DeVier Pierson Professor of Law at the University of Oklahoma College of Law.
- Laura J. Hines (J.D., University of Michigan) is a Professor of Law at the University of Kansas School of Law.
- Linda S. Mullenix (Ph.D., Columbia University, J.D., Georgetown University Law Center) holds the Rita and Morris Atlas Chair in Advocacy at the University of Texas School of Law.
- Tom Willging (L.L.M., Harvard Law School, J.D., The Catholic University of America, Columbus School of Law) is a senior researcher at the Federal Judicial Center.
- Patrick Woolley (J.D., Yale Law School) is the Beck, Redden & Secrest Professor at the University of Texas School of Law.
Attendance is free and no reservations are required.
For more information, please contact Symposium Editor Shane McCall: firstname.lastname@example.org.
Although my paper is still in its formative stages, its title is "Aggregation, Community, and the Line Between." It builds on my earlier work, "Litigating Groups," and my current work-in-progress, "Litigating Together: Social, Moral, and Legal Obligations," which I'll present at the University of Florida next week. The Kansas article examines our current line drawing scheme, which essentially asks whether the procedurally aggregated individuals form a sufficiently cohesive group before the decision to sue. Here's a short overview/abstract:
This Article non-rhetorically asks whether this is the right dividing line. Although I rely principally on analogies to the class action context, I am particularly concerned about mass tort litigation that proceeds as nonclass aggregation because it fails the predominance test in Rule 23(b)(3). Cohesion, as currently measured by courts is static in that the proxies—requesting uniform relief and having common characteristics that pre-date the litigation—are measured at a particular point in time. And plaintiffs with procedurally aggregated tort claims are unlikely to exhibit the fundamental attributes of a cohesive local community—social bonds, social activities, and community attachment. But what if, by using new communication mediums, we could return to the core cohesion seen in small, rural medieval communities without the corresponding geographic restrictions? Put differently, what if, in drawing the line for cohesive groups, we traced actual cohesion regardless of when it arose? This Article explores that question.
Wednesday, September 16, 2009
"I'll let you write the substance . . . and you let me write the procedure, and I'll screw you every time."
Rep. John Dingell, Hearings on H.R. 2327 Before the Subcomm. on Admin. Law and Governmental Relations of the House Comm. on the Judiciary, 98 Cong., 1st Sess. 312 (1983).
Frederick Schauer and Richard Zeckhauser have posted "The Trouble With Cases" on SSRN. This article makes an interesting argument about the dearth of rigorous empirical basis for regulation - by litigation and by legislation as well. CAFA is a wonderful example of the problem they point to. Here is the abstract:
For several decades now a debate has raged about policy-making by litigation. Spurred by the way in which tobacco, environmental, and other litigation has functioned as an alternative form of regulation, the debate is about whether policy-making or regulation by litigation is more or less socially desirable than more traditional policy-making by ex ante rule-making by legislatures or administrative agencies. In this paper we enter the debate, but not to come down on one side or another, all things considered, of the litigation versus ex ante rule-making regulatory debate. Rather, we seek to show that any form of regulation that is dominated by high-salience particular cases is highly likely, because of the availability heuristic and related problems of representativeness, to make necessarily general policy on the basis of unwarranted assumptions about the typicality of one or a few high-salience cases or events. And although this problem is virtually inevitable in regulation by litigation, it is far from absent even in ex ante rule-making, because such rule-making increasingly takes place in the wake of, and dominated by, particularly notorious and often unrepresentative outlier events. In weighing the value of regulation by ex ante rule-making against the value of regulation by litigation, it is important for society to recognize that any regulatory form is less effective just insofar as it is unable to transcend the distorting effect of high-salience unrepresentative examples.
Law and Economics scholars Steven Shavell and A. Mitchell Polinsky have posted "The Uneasy Case for Products Liability" on SSRN. Here is the abstract:
We explain in this Article that the benefits of product liability may well be outweighed by its costs in a wide range of circumstances. One benefit is that the threat of liability may induce firms to improve product safety. However, this benefit is limited: even in the absence of product liability, firms would often be motivated by market forces to enhance product safety because their sales are likely to fall if their products harm consumers; moreover, their products must frequently conform to safety regulations. Consequently, product liability might not be expected to exert a significant additional influence on product safety — and the available empirical evidence suggests that such liability does not in fact have a measurable effect on the frequency of product accidents. A second benefit of product liability is that it causes product prices to increase to reflect the riskiness of products and thereby may improve consumer purchase decisions. But this benefit also involves a detriment, because product prices may rise excessively and undesirably chill purchases. A third benefit of product liability is that it compensates victims of product-related accidents for their losses. Yet this benefit is only partial, for accident victims are already often compensated by their insurers for some or all of their losses. Potentially offsetting the benefits of product liability are its costs, which are great. To transfer a dollar to a victim of a product accident requires more than a dollar on average in legal expenses. Given the limited benefits and the high costs of product liability, we conclude that it may be socially undesirable — especially for widely sold products, with respect to which market forces and regulation are relatively strong. This judgment is in tension both with the broad social endorsement of product liability and with proposals for its reform, which generally do not question its existence. Our more critical assessment of product liability stems from the fact that we engage in an analysis of its benefits and costs, whereas neither the proponents of product liability nor its reformers undertake to do so.
A cost benefit analysis that takes account of the costs of litigation as a social cost is useful. I guess we need to compare the social costs of litigation with the social costs of administrative regulation and "market" regulation in order to determine which is the most efficient mode of regulation. Looks like an interesting piece.
Friday, September 11, 2009
Judge John Keenan declared a mistrial today in Boles v. Merck, the first bellwether trial in the Fosamax litigation. As we mentioned yesterday and the day before, tensions have run high in the jury room. Here's an excerpt from the Wall Street Journal's report:
A judge declared a mistrial Friday in a closely watched case involving Merck & Co.'s osteoporosis drug Fosamax after a jury failed to reach a verdict amid tense jury deliberations. The mistrial came two days after U.S. District Judge John F. Keenan in Manhattan called for a daylong "cooling off" period as one juror claimed in a note to have been the subject of physical threats and that a chair was thrown in the jury room. The judge declared a mistrial Friday after the jury's forewoman indicated the jury remained deadlocked and a lawyer for Shirley Boles, a 71-year-old Florida woman who sued Merck, again asked for a mistrial.
According to Merck's lawyer, the jury appeared to be "seven-to-one in Merck's favor." The natural tendency of litigators to put favorable spin on a mistrial might make one skeptical of such an assertion, but it's noteworthy that the plaintiff's lawyer pushed hard for the mistrial while Merck opposed the mistrial motion.
The WSJ report mentioned that a conference has been scheduled for October and the plaintiff's lawyer said he expects a retrial in the spring.
The next two trials are scheduled for Dec. 1, 2009 and Jan. 11, 2010.
Update: here's a link to the New York Times article, which contains a multimedia link to the juror's notes and the request for a new trial.
Thursday, September 10, 2009
CNN reports this morning that Judge Keenan has "called for a daylong 'cooling off' period" in the Fosamax (an osteoporosis drug) litigation. Apparently jury deliberations became quite tense; the jurors have been deliberating for the last week over Shirley Boles's case. Boles is a 71-year old retired deputy sheriff that lives in Ft. Walton Beach, Florida. She claims that Fosamax caused her jawbone tissue to die. By itself, the case is relatively small. But, because Schering-Plough is looking to merge with Merck, all eyes are on the jury to see how vulnerable Merck is financially. According to the New York Times, there are roughly 900 state and federal Fosamax cases with around 1,280 plaintiffs.
One of the jurors in Boles's case claimed that she was being both intimidated and threatened. Judge Keenan has given the jury until 11:15 a.m. on Friday (tomorrow) to reach a decision before declaring a mistrial.
Wednesday, September 9, 2009
Rebecca Love Kourlis (Denver) and Jordan M. Singer (Denver) have posted to SSRN their article, Managing Toward the Goals of Rule 1. Here's the abstract:
Two new studies may help federal judges better achieve Federal Rule of Civil Procedure 1’s objectives of a “just, speedy, and inexpensive” resolution of civil cases. The first study stems from an examination of the dockets of nearly 8000 closed federal civil cases, with the goal of identifying the areas of pretrial activity that are most closely associated with faster or slower times to disposition. The second study is a survey of nearly 1500 Fellows of the American College of Trial Lawyers, seeking their perceptions of and experience with the pretrial process. Collectively, these studies provide valuable insight into strategies that district and magistrate judges can employ in order to steer civil cases to a fair and efficient resolution. In this article, we summarize the key findings of both studies and offer a few salient recommendations based on those findings.
Satish K. Jain (Jawaharlal Nehru University) has posted to SSRN his article, On the Efficiency of the Negligence Rule. Here's the abstract:
In the law and economics literature there are three different versions of negligence rule which have been discussed. These three versions are: (i) Injurer is liable for the entire loss if negligent, and not liable if nonnegligent. Injurer is negligent if his care level is below the due care level, otherwise nonnegligent. (ii) Injurer is liable for the incremental loss if negligent, and not liable if nonnegligent. Injurer is negligent if his care level is below the due care level, otherwise nonnegligent. (iii) Injurer is liable for the incremental loss if negligent, and not liable if nonnegligent. Injurer is negligent if there exists a precaution which could have been taken but was not, and which would have brought about reduction in expected loss of a magnitude greater than the cost of precaution; otherwise nonnegligent. In the literature it is taken for granted that all three versions of negligence rule are efficient. A careful analysis, however, shows that version (iii) is not efficient. This version, in fact, is not efficient even for the unilateral case. Efficiency of version (i) was established by Brown. Efficiency of version (ii) for the unilateral case was shown by Kahan; efficiency for the bilateral case is established in this paper.
Two news items from the Fosamax front, one involving jury deliberations in the Boles trial, the other involving Merck's effort to win summary judgment in 24 other cases. The Fosamax litigation involves about one thousand plaintiffs' claims against Merck alleging that its popular osteoporosis drug caused necrosis of the jaw. Most of the litigation is in federal court, where Judge John Keenan of the SDNY is overseeing the MDL.
BOLES: In the first bellwether trial, Shirley Boles v. Merck, the jury has so far been unable to reach a verdict. The trial began on August 11, and the jury got the case on September 2. According to this Bloomberg report, the jury informed the judge that it was unable to reach a decision, and the judge yesterday told the jury to keep working:
A federal judge instructed a jury to continue deliberating whether Merck & Co.'s osteoporosis drug Fosamax caused a Florida woman’s “jaw death,” after the panel told the judge it couldn’t decide.
U.S. District Judge John Keenan in Manhattan told the jurors to keep working today. He explained that the case is important to both the plaintiff and Merck.
“It’s very stressful to sit here and an agreement cannot be reached,” a juror wrote in one of four notes to Keenan today about the lack of unanimity among the eight-member panel. “I feel that we never will reach a verdict because everyone has a different opinion.”
SUMMARY JUDGMENT: According to a Reuters report, Judge Keenan decided today that he would permit testimony by two plaintiff experts concerning causation based on relatively short-term exposure, and the court therefore rejected Merck's motion for summary judgment in 24 Fosamax cases:
In an opinion released Wednesday, U.S. District Judge John Keenan ruled that the plaintiffs could introduce testimony by two doctors to show that the drug can cause jaw damage after less than three years of continuous use. Keenan said the evidence is sufficiently reliable to allow a rational jury to establish such a connection. He said individual plaintiffs will then be allowed to present expert testimony that Fosamax caused them to suffer such damage, and that such testimony could by itself "make causation a genuine issue of fact for trial."
The New York Times has an article on the large numbers of objections filed in the Google book settlement as the date of the fairness hearing looms. The article is at this link: 11th Hour Filings Oppose Google's Book Settlement (September 8, 2009). For the uninitiated reader, a class action cannot be settled as a class without judicial approval. The fairness hearing is mandated by the class action rule and requires the judge to evaluate the fairness of the settlement. The standard for approval of a class action settlement is different in different circuits.
Jay Tidmarsh of Notre Dame is quoted in the article saying: “The number and quality of opposition filings is very unusual, the court is going to have to look at the public interest in the settlement.” Andrew Gavil of Howard University is also quoted.
This is a big settlement concerning something that a lot of very articulate people care about (and with respect to which there is a lot of money to be made) and so we are getting a very robust, serious public discussion through the settlement process. That is rarely the case, but perhaps Judge Chin can show us how a public dialogue can be incorporated into the fairness hearing process to make it more, well, fair.
Unfairness is more likely to show up, and not be addressed, in settlements that fewer people care about, where there is insufficient opposition for a truly adversarial proceeding where all sides are represented. That said, either the settlement is approved or it is not. The judge cannot rewrite its terms. So we shall see if Judge Chin gives counsel some clues as to what type of settlement he will approve if not this one.
I wrote about this topic some time ago in an Article entitled Fundamental Principles for Class Action Governance that I think is still relevant today (I've only recently posted the piece on SSRN). For an excellent treatment of the issue of fairness hearings, you might be interested in William Rubenstein, The Fairness Hearing: Adversarial and Regulatory Approaches, 53 UCLA L. Rev. (2006) (available on SSRN).
You generally won't find much humor over here at the Mass Tort Blog. And, to be honest, this post is more about civil procedure generally than class actions in particular. But, there is a section on Class Actions and Sneetches in here that might give you a laugh. There's A Pennoyer in My Foyer: Civil Procedure According to Dr. Seuss will be coming out in The Green Bag this fall. There will be a Part 2 in the Spring, but I don't want to give away its contents just yet. Nevertheless, if you have comments or suggestions I'd love to hear them and will address them in the second part.
Monday, September 7, 2009
The paper has dual aim: to analyse the structure of negligence, and to use it to offer an explanation of responsibility (for actions, omissions, consequences) in terms of the relations which must exist between the action (omission, etc.) and the agents powers of rational agency if the agent is responsible for the action. The discussion involves reflections on the relations between the law and the morality of negligence, the difference between negligence and strict liability, the role of excuses and the grounds of duties to pay damages.
Friday, September 4, 2009
My new book, Inside Civil Procedure: What Matters and Why, has been released by Aspen Publishers. Written for law students, it tries to explain the concepts of civil procedure in a comprehensible and engaging way. Readers of this blog won't be surprised that I couldn't resist mentioning MDL, mass settlements, and the difficulty of certifying mass tort class actions. Mostly, however, the book sticks to the basics. So if anyone's trying to understand personal jurisdiction or Erie or the ever-changing federal pleading standard ...
Eran Taussig (SJD, UPenn) has posted an article comparing the Israeli and American class action rules, and arguing in favor of the Israeli "good faith" standard. The article is called "Broadening the Scope of Judicial Gatekeeping: Adopting the Good Faith Doctrine in Class Action Proceedings":
This paper suggests that using the concept of ‘good faith’, as is used in Israeli class action proceedings, could resolve some of the shortcomings in U.S. class action proceedings. There is a vast literature about the abuse of the class action procedure in the United States. Among other problems, scholars lament the extensive filing of meritless class actions in order to extort unwarranted settlements and the so-called “sweetheart settlements”, in which class counsel colludes with the defendant to settle meritorious claims for far less than they are worth, in exchange for fees in excess of those he would have expected had the parties proceeded to trial. Yet, there are no satisfactory solutions to the abuse of this procedure. This paper addresses this gap by describing and evaluating a solution that originates outside the United States. Unlike Rule 23, the recently enacted Israeli Class Actions Law includes a good faith requirement as one of the prerequisites to certification. This requirement is used to scrutinize the motives of the representative plaintiff and the class counsel. Israeli Courts will not certify class actions which have been instituted for collateral or illegitimate purposes such as extortion or harming a competitor. The paper suggests that the application of good faith in the U.S. could resolve some of the more significant flaws in the American class action mechanism. In making this argument, the paper also considers both the larger legal and socio-political contexts–specifically the role that litigation plays in the American and Israeli societies.