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.