February 4, 2010
Sept 11th First Responder Suits in Settlement Talks
The New York Times has published an article by Mireya Navarro entitled "Effort to Settle Sept. 11th Lawsuits". The article describes (albeit without much detail) the efforts to settle the lawsuits brought by first responders against various contractors and New York City in the aftermath of the terrorist attack of September 11th. Twelve cases have been scheduled to go to trial in May 16, ten thousand total have been brought against approximately 200 defendants. Apparently there is a 70 page settlement plan and the judge says that the parties have been working "very hard." The article also mentions a bill pending in Congress to compensate the workers at the disaster site, similar to that created to compensate the victims of the tragedy.
The judge is using a relatively sophisticated approach to sampling, first surveying the class and using a severity chart to pick cases for trial. The special masters that came up with it are both law professors and experts in mass torts: Aaron Twersky (Brooklyn) and James Henderson (Cornell).
The article quotes two law professor mass tort experts. Anthony Sebok (Cardozo) explains the difficulty of the causation issues: "“There’s not a lot of experience with this kind of risk, [i]t may be very difficult from a technical point of view to get testimony from experts.”
Richard Nagareda (Vanderbilt) explains “Ultimately, everybody understands there’s going to be some sort of comprehensive settlement. The question is, what is the price?”
I am working on a paper that attempts to answer this question - what is the best way to determine the price. I think holding some sample trials is the best way, but it sounds like the players in this litigation disagree and would prefer to reach a settlement prior to trial. The judge is prepared for this and apparently has suggested having multiple judges try the sample cases rather than trying them together.
Impending trials have a way of focusing the mind. I predict a settlement by May.
Stream of Commerce Alive and Well in New Jersey
On Tuesday the New Jersey Supreme Court issued a decision exercising broad personal jurisdiction over a UK Manufacturer who distributed goods through an independent Ohio distributor sued by a resident of New Jersey.
The decision is Nicastro v. McIntyre Machinery, 2010 WL 343563 (NJ, Feb. 2, 2010). The Court (a 5 justice majority) explained:
“Today, all the world is a market. In our contemporary international economy, trade knows few boundaries, and it is now commonplace that dangerous products will find their way, through purposeful marketing, to our nation's shores and into our State. The question before us is whether the jurisdictional law of this State will reflect this new reality. .... Due process permits this State to provide a judicial forum for its citizens who are injured by dangerous and defective products placed in the stream of commerce by a foreign manufacturer that has targeted a geographical market that includes New Jersey. See id. at 480-83, 508 A.2d 1127. The exercise of jurisdiction in this case comports with traditional notions of fair play and substantial justice.”
Court articulated the rule that "A foreign manufacturer will be
subject to this State's jurisdiction if it knows or reasonably should know that
through its distribution scheme its products are being sold in New
What were defendant's contacts with New Jersey? It targeted the U.S. market. The Court explains:
“It did so by engaging McIntyre America, an Ohio-based company, as its exclusive United States distributor for an approximately seven-year period ending in 2001. J. McIntyre knew or reasonably should have known that the distribution system extended to the entire United States, because its company officials, along with McIntyre America officials, attended scrap metal trade shows and conventions in various American cities where its products were advertised. Indeed, J. McIntyre's president was present at the Las Vegas trade convention where his exclusive distributor introduced plaintiff's employer to the allegedly defective McIntyre Model 640 Shear that severed four of plaintiff's fingers.”
There were two forceful dissents in the case. Here is a taste:
“Repeated quotations and soaring language about the realities of the global marketplace might compel the casual reader to follow what appears to be the majority's relentless logic. But those rhetorical techniques cannot mask the fact that the majority today embarks on a path that stretches our notions about due process, and about what is fundamentally fair, beyond the breaking point.”
(h/t Mike Martin (Fordham))
February 3, 2010
Professors Opine on Toyota's Lawsuit Problem
February 2, 2010
Adequacy of Representation
I recently posted a response to Jay Tidmarsh's article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009) on SSRN. Although I ultimately find his recommendation troubling for the reasons I highlight below, I highly recommend his article. Here's his abstract:
This article by Jay Tidmarsh questions the usefulness of traditional tests for adequacy of representation in class action proceedings. When determining whether to certify a class, courts have sought to avoid endorsing those classes marred by conflicting interests or the possibility of collusion. Yet, Tidmarsh argues, such conflicts of interest are an intrinsic characteristic of class actions, stemming from the very policy rationales that have prompted the judiciary to allow litigation by classes.
As a result, the current doctrine of adequate representation has left the courts without a bright-line rule; instead, the courts' inquiries into adequacy of representation must focus primarily on the degree of conflicts, leading to confusion and uncertainty--indeed, were prevailing case law strictly applied, virtually no class action could survive the test for adequacy. Tidmarsh therefore proposes an alternative, bright-line rule: "Representation by class representatives and counsel is adequate if, and only if, the representation makes class members no worse off than they would have been if they had engaged in individual litigation." This rule, he believes, would afford far better protection to the interests of individual class members while simultaneously providing the judiciary with a more intelligible test that could be applied with far more consistency.
And here's the abstract from my response, titled Procedural Adequacy:
January 31, 2010
U.S. News to Rank Law Firms
The U.S. News & World Report, immensely influential in education for its rankings, has announced that its October 2010 issue will include a ranking of more than 5,000 law firms in more than 125 legal practice areas. Will mass tort litigation be ranked as a subject area? Probably, given that U.S. News & World Report has teamed up for the ranking with Best Lawyers, which itself has "mass tort litigation" as a practice area category. Here's the Best Lawyers press release, and here's an excerpt from the U.S. News announcement:
The ranking projects continue to make progress on the collection of client references and associate references from law firms. The vast majority of America's major law firms have provided the requested information. As with other rankings published by U.S. News, we believe that we will be able to secure from various sources quantitative data concerning those law firms that do not provide the requested statistical data directly to U.S. News and Best Lawyers. Combined with the qualitative reviews of the firms by clients —more than 50,000 client references have already been accumulated—and qualitative peer-reviews by leading lawyers, this will enable the publication of valid rankings for all major law firms, both large and small, across the United States in the inaugural year. In time, it is expected that an increasing number of the ranked law firms will participate in the process.