December 17, 2010
Bellwether Trials and "Sabotage"
Cue the music.
Drug and Device law blog has a post about plaintiffs sabotaging bellwether trials when the cases picked to be bellwethers are not to their liking. As I have written elsewhere, the informational bellwether processes used by courts are flawed. In particular, letting either party pick the bellwether trials is a recipe for a biased sample. For more on what a rigorous and appropriate method of informal bellwether trials would look like, see my piece Rough Justice.
The folks over at D&D, because they are defense lawyers, propose that they get to pick the bellwethers if the plaintiff backs out and his case is dismissed with prejudice. This makes no sense, of course, because it would just skew the sample in defendant's favor. The only way to do this is for the court to randomly select cases, including back up cases. This way there is a sample of cases if plaintiff's case is dismissed for failure to prosecute, as apparently happened in the FEMA Trailers case, or if defendants settle the bellwether cases they don't want to see tried.
H/T Torts Prof Blog.
December 16, 2010
U.S. Sues BP Over Gulf Oil Spill
Possible civil penalties range from $5.4 billion to $21 billion, and criminal charges might still be subsequently brought. Here's the CBS television report from Jan Crawford:
December 14, 2010
Judicial Hellholes 2010 report released by ATRA
The American Tort Reform Association each year releases a report on the jurisdictions that it considers the most plaintiff-friendly in the nation. The 2010 honorees are (1) Philadelphia, (2) California, particularly Los Angeles County and Humboldt County, (3) West Virginia, (4) South Florida, (5) Cook County, Illinois, and (6) Clark County, Nevada. The additional "watch list" includes traditional favorites Madison County, Illinois; Atlantic County, New Jersey; St. Landry Parish, Louisiana; and St. Clair County, Illinois; as well as the District of Columbia, New York City and Albany, New York.
Is it just me, or does the "hellhole" label feel outdated? Of course some jurisdictions tend to be more favorable for either plaintiffs or defendants, given that there are meaningful variations in laws, jury demographics, and judicial selection processes. That's why forum-shopping won't disappear anytime soon as a favorite activity of litigation strategists. But the heyday of the "magnet courts" in Madison County, the Gulf Coast, and the Rio Grande Valley seems like a long time ago. Not only has the tort reform movement been successful at achieving changes in Madison County and other jurisdictions, but CAFA has made it easy to remove large-scale class actions to federal court and thus has reduced concerns about certification of nationwide class actions in state courts.
ATRA's 2010 list is weighted toward some of the biggest legal markets in the U.S.: Philadelphia, Los Angeles, Miami, Chicago, New York and Washington. This gives the report a different flavor. Rather than primarily calling attention to relatively small counties with truly renegade judges and juries, the 2010 report seems heavily focused on cases in which judges conducted consolidated trials, denied motions to dismiss, or otherwise took actions that were not in defendants' favor.
To those who follow mass tort litigation, it is interesting to see which jurisdictions are perceived by defendants and the insurance industry as the most threatening. For this, the ATRA report is worth reading, even if it is anecdotal rather than data-driven. But the hyperbole of the "hellhole" label gets in the way of taking the report as seriously as its proponents would like.
How Do the Justices Feel About Class Actions?
In a recent post I suggested that Justice Ginsburg is hostile to class actions, based on her dissent in Shady Grove v. Allstate, a case decided last term. I was reading the Brief of Civil Procedure and Complex Litigation Professors in Support of Respondents in AT&T v. Concepcion yesterday and found there a coherent argument that in fact Justice Ginsberg has not been hostile to consumer class actions. The brief provides a very cogent argument in defense of the class action. In fact, it would make a rather nice starting point for a class discussion on the subject.
If anyone else has any insights into the views of the various justices on the issue, I'd be interested in hearing them.
December 13, 2010
Feinberg to Pay "Bonus" for Release of Some Claims
John Schwartz at the New York Times reports that Ken Feinberg is offering to pay additional sums to those recipients of emergency funding willing to release their claims. Apparently people whose emergency funding fully compensated them can get an additional $5,000 for individuals and $25,000 to release their claims, promising BP that they will not sue. Feinberg "suggested that the likeliest candidates for the payment might be those who had received emergency funds and had determined that their losses have already been fully covered by the BP fund, or who believe they will not be able to properly document further losses."
The article reports that the fund will provide free legal advice and perhaps additional help in filling out forms to claimants.