Tuesday, August 24, 2010
Richard Nagareda (Vanderbilt) has posted his latest piece, Common Answers for Class Certification, on SSRN. The essay is part of a roundtable on Dukes v. Wal-Mart that will be published in En Banc, Vanderbilt Law Review's new on-line counterpart. Here's the abstract:
Monday, August 23, 2010
Benjamin Kaplan had a very distinguished career (you can read some highlights here at the HLS press release). He was also the Reporter on the Rules Committee in 1966 when the class action rule was passed. I had the honor of interviewing him about Rule 23 back in 2005. He was gracious, thoughtful and whip smart.
Kaplan's view was that the class action device was not appropriate for torts cases, chronicled among other places in Judith Resnik's article "From Cases to Litigation."
Michael Cooper has an article in the NYTimes about the two entitled "Spill Fund May Prove as Challenging as 9/11 Payments."
Richard Nagareda (Vanderbilt) is quoted as saying: "Although he had a very difficult time placing a dollar value on human life, in some way that was a more straightforward job than estimating the long-term harm to a shrimper’s business."
In both cases, I think, you have a situation where Feinberg is asked to monetize things that are very hard to monetize and about which people have strong and conflicting opinions - but that is what our tort system asks juries to do all the time. I've recently written on this issue in a piece called "Rough Justice" - an earlier draft is available on SSRN and I plan to post a revision soon.
The NYT article also raises the prospect of fraudulent claims. The 9/11 Fund was manageable in this regard because, as the paper quotes Feinberg “You’ve got verification of death."
Tuesday, August 17, 2010
Bloomberg Businessweek has a thorough article by Jim Snyder, looking at the issues of compensation and remoteness of claims. So far, BP has paid out $352 million in emergency payments for 114,100 claims, and BP has received a total of 142,400 claims.
Thursday, August 12, 2010
At the ABA annual meeting on Monday, Professor David Wilkins (Harvard) delivered a fascinating, far-reaching lecture on legal-profession trends, including globalization and technology. While he only briefly mentioned "tort," the changes he discussed are already appearing in the increase in cross-national mass tort litigation. In the United States, the growth of mass tort litigation stemmed from increasingly national products, national advertising, and nationally dispersed injured victims. As markets go global, so too do the problems that lead to mass torts. The rise of Western-style legal cultures and lawsuits in Asia will likely increasingly turn those mass torts into mass tort litigations -- which will in turn mean that plaintiffs' lawyers will coordinate not just nationally, but internationally; and companies will increasingly turn to defense lawyers as lead counsel not just nationally, but internationally. (For background, see my 2005 article on litigation networks in the U.S.) Here's Professor Wilkins' address:
Wednesday, August 11, 2010
David Rosenberg (Harvard) and Luke McCloud have posted their latest article, A Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law, on SSRN. Here's the abstract:
In this essay, we show why and how to apply the average of differing state laws to overcome the choice-of-law impediment currently blocking certification of multi-state federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same regardless of whether it is applied in disaggregated form state-by-state at great cost or in aggregated form on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct; fails to accurately reflect and enforce the substantive differences among the governing state laws; and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.
Yesterday the Judicial Panel on Multidistrict Litigation issued its much awaited opinion sending the BP Oil Spill cases to New Orleans Judge Carl J. Barbier. These cases include 77 cases from Louisiana, Alabama, Florida, Mississippi, and Texas. As the Panel explained in its short opinion, "if there is a geographic and psychological 'center of gravity' in this docket, then the Eastern District of Louisiana is closest to it." (Op. at 3)
This decision makes it much easier for plaintiffs to participate in the litigation process. Participating in the court process and in any plaintiffs' group meetings is an important part of procedural justice. As Ken Feinberg explained in administering the September 11 Victim Compensation Fund, "[g]iving people the opportunity to be heard is very important in helping them cope and move on the best they can." (Tracy Breton, Payments Pending for Fire Victims, Providence J. Bull. Aug. 3, 2008, at 1) The same is true for the oil spill victims. Although people litigate for various reasons including money, I suspect that holding BP publicly accountable is certainly part of the motivation behind these suits.
The Panel sent the shareholder litigation cases to Judge Keith P. Ellison in Houston.
Tuesday, August 10, 2010
Today's National Law Journal has an article about the two new trustees named to BP's $20 million fund: Kent Syverud is currently the dean of Washington University School of Law and is a former dean of Vanderbilt University Law School; John Martin, Jr. is now a partner at Martin & Obermaier in New York and served as a judge in Southern District of New York from 1990-2003. Here's a link to BP's statement.
Monday, August 9, 2010
The NY Times' Mireya Navarro has a long article today entitled "9/11 Settlements Bring Moment of Reckoning" about the disappointment of many plaintiffs in the WTC Disaster Site Litigation with the settlements they are being offered. The settlements take account both of the severity of the injury and the possibility that causation can be proven in court, leaving many with cancer or who have died of cancer getting less than they expected or hoped for.
A very important twist to the 95% agreement requirement in the settlement is the effect that is having on some plaintiff's decision to settle or not to settle. One is quoted as saying: "“It weighs heavy on one’s mind that your decision would impact the compensation of those who are sick, because if you don’t get 95 percent you’re not going to settle.”
Another interesting theme that comes out of the article is the expressive uses of the lawsuit for plaintiffs. One plaintiff who is taking a settlement of approximately $11,000, the article explained "To him, the legal battle was never about the money but about calling attention to the health consequences suffered by those “who stepped up to the plate” after the terrorist attacks."ADL