Thursday, April 1, 2010

Mass Torts & Bankruptcy Teleconference

HB Litigation Conferences will be hosting a teleconference on Mass Torts & Bankruptcy on Wednesday, April 7, from 2:00 p.m. to 3:40 p.m. EST.  I'll be speaking along with Steven C. Bennett (Jones Day), Sander Esserman (Stutzman Bromberg), and Mark Plevin (Crowell & Moring).


April 1, 2010 in Aggregate Litigation Procedures, Asbestos, Conferences, Mass Tort Scholarship, Products Liability | Permalink | Comments (0) | TrackBack (0)

More on Shady Grove

Adam Steinman nicely recaps the opinion on the Civil Procedure and Federal Courts Blog.

SCOTUSblog also offers some analysis of the decision.


April 1, 2010 in Class Actions, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 31, 2010

The future ain't what it used to be.

Yogi Berra was right and I was wrong. Revisiting my old post, boy my prediction regarding the outcome in Shady Grove was wrong.  I should have taken the statistical approach - after all why would they grant cert if not to reverse?  Then again, it was a plurality opinion.


March 31, 2010 in Class Actions, Procedure | Permalink | Comments (0) | TrackBack (0)

Rule 23 Upheld in All State Class Actions

The Supreme Court today released the decision in Shady Grove Orthopedics v. Allstate.  Justice Scalia, writing for the Court, was joined by Thomas, Roberts, Sotomayor & Stevens.  Justices Kennedy, Breyer, Alito joined Ginsburg's dissent.  (h/t Steven Burbank, Penn Law).  You can find the case here. Coverage at Civ Pro Blog here.

The case concerned a class action for statutory damages brought by Shady Grove against Allstate for failing to pay claims.  The cause of action was under New York law and the New York class action rule only permits class actions where the underlying substantive law specifically states that class actions will be available.  The question presented in the case was whether the plaintiffs could sustain a class action in Federal Court based on the state cause of action.  The class action was in Federal Court because of the Class Action Fairness Act.  The Court ruled that the Federal Court could certify a class under Rule 23 even when the underlying cause of action could not have been certified as a class in state court because of the New York procedural rule.

Part II.B. is the key part, although only a plurality agreed on it (Justice Stevens issued a separate concurrence and basically agreed only with the result).  Justice Scalia writes "The test is not whether the rule affects a litigant's substantive rights; most procedural rules do....What matters is what the rule itself regulates: If it governs only "the manner and the means" by which the litigant's rights are "enforced," it is valid; if it alters the "rules of decision by which [the] court will adjudicate [those] rights," it is not.....[W]e have rejected every statutory challenge to a Federal Rule that has come before us....Applying that criterion, we think it obvious that rules allowing multiple claims (and claims by or against multiple parties) to be litigated together are also valid....Such rules neither change plaintiffs' separate entitlements to relief nor abridge defendants' rights; they alter only how the claims are processed."  He went on to analogize joinder and consolidation to class actions. (Slip Op at 13)

What of the argument that New York intended to achieve a substantive effect -- disallowing statutory damages class actions? The Court explains: "...the substantive nature of New York's law, or its substantive purpose, makes no difference.  A Federal Rule of Procedure is not valid in some jurisdictions and invalid in others --or valid in some cases and invalid in others -- depending upon whether its effect is to frustrate a state substantive law (or a state procedural law enacted for substantive purposes."   (Slip op at 15)

The inquiry is not to the state law, but to the nature of the Federal Rule - does it regulate procedure?

More analysis of the decision to come.  ADL

March 31, 2010 in Class Actions, Procedure | Permalink | Comments (1) | TrackBack (0)

Monday, March 29, 2010

Panel on Pluralism in Tort Law and Litigation at Annual Conference of the Association for the Study of Law, Culture and the Humanities

As previously mentioned, I was part of a panel on Pluralism in Tort Law and Litigation at the annual conference of the Association for the Study of Law, Culture and the Humanities, which took place on Saturday, March 20 at Brown University.  Professor Alan Calnan (Southwestern) moderated the panel, and other participants included Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston).  Below are the abstracts and links to audio from the presentations and Q&A.  Thanks to Alan Calnan for moderating and to all for participating.


I.  Prof. Alan Calnan -- Introduction (audio)

II.  Prof. Christopher Robinette -- "The Instrumentalism in Tort Reforms" (audio)

The traditional view among legal historians is that tort was largely deontic private law until the late nineteenth century.  Due to factors such as the Industrial Revolution and the advent of liability insurance, tort became (more) instrumentalist.  A survey of major tort reforms over the course of the last century provides evidence to support this view.  Each of the reforms--workers' compensation, no-fault automobile insurance, products liability, and "modern" tort reforms (such as damage caps)--is based in instrumentalism.  Furthermore, the reforms become increasingly integrated into tort law as time passed.  The earliest reform, workers' compensation, was a substitute for tort law.  By the time of the modern reforms, instrumentalism is operating within tort itself, and covers a multitude of tort cases.

III.  Prof. Byron Stier -- ""Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand" (audio)

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

IV.  Prof. Sheila Scheuerman (audio)

In my presentation, I examine whether and when tort law should permit
"no injury" claims -- claims where the plaintiff's harm has not yet
materialized.  Examples of these suits include medical monitoring
actions, products liability claims where a known defect exists, but the
product has not yet malfunctioned, as well as consumer fraud claims
where the consumer's decision was not affected by the defendant's
alleged misrepresentation.  Recent years have seen an influx of these
suits under an array of tort and contract theories.  Traditionally,
however, tort doctrine has premised liability on an injury to an
identified party.  But is "injury" a necessary pre-requisite?  I address
whether tort values support these "no injury" causes of action.  In
other words, should "no injury" claims be actionable under the varied
rationales for the tort system and, if so, under what circumstances?

V.  Questions and Answers (audio)



March 29, 2010 in Aggregate Litigation Procedures, Books, Class Actions, Conferences, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Regulation, Settlement | Permalink | Comments (0) | TrackBack (0)