Tuesday, January 31, 2012
Marketing-research company Acritas has released the results of its client-interview-based study of top law-firm brands, according to AmLaw Daily. The firms most likely to be considered for major litigation were Skadden, Arps, Slate, Meagher & Flom; Kirkland & Ellis; Jones Day; Gibson, Dunn & Crutcher; and Sidley Austin. All have active mass tort or products liability practices.
A particular congratulations to my former firm colleagues at Skadden and Jones Day, which placed #1 and #2 in the overall ranking of leading U.S. law firm brands.
Daniel Klerman (USC) has posted to SSRN his article, Personal Jurisdiction and Products Liability: An Economic Analysis. Here is the abstract:
This article is the first sustained economic analysis of personal jurisdiction. It argues that plaintiffs should be able to sue where they purchased a product which caused injury. Such a rule allows manufacturers to set prices which take into account the quality of the forum state’s courts. If the courts are biased against out-of-state corporations, have overly generous judges or juries, or apply substantive law which is excessively pro-consumer, manufacturers can, through contracts with distributors and retailers, charge a higher price to consumers in that state. This prevents judges and juries from engaging in inter-state redistribution and gives states an incentive to provide efficient substantive rules and adjudicative institutions. In contrast, a rule which required suit in a place more fully under the control of the defendant – such as the place of manufacture or the location of the distributor – would encourage manufacturers to select inefficiently pro-defendant jurisdictions for their activities. Because consumers are unlikely to know where products are manufactured or distributed and are unlikely to be able to evaluate the quality of the law in those states, it is implausible to think that the market will give manufacturers incentives to locate their jurisdiction-triggering activities in states with efficient laws and institutions. This analysis is particularly important, because the Supreme Court has recently deadlocked on personal jurisdiction in product liability cases.
Eyal Zamir (Hebrew Univ.), Barak Medina (Hebrew Univ.), and Uzi Segal (Boston College, Economics) have posted to SSRN their article, The Puzzling Uniformity of Lawyers’ Contingent Fee Rates: An Assortative Matching Solution. Here is the abstract:
Lawyers’ Contingent Fee (CF) rates are rather uniform, often one-third of the recovery. Arguably, this uniformity attests to collusion in the market, resulting in clients paying supra-competitive fees. This paper challenges this common argument.
Uniform CF rates are not necessarily superior to negotiable ones; yet they provide clients with an important advantage. They result in clients making a defacto “take-it-or-leave-it” offer. It precludes lawyers from exploiting their private information about the lawsuit’s expected value and the amount of work it requires. The uniformity of CF rates enables clients to hire the best available lawyer, either directly, if clients know lawyers’ ranking, or indirectly, through the referral system. This uniformity thus fosters a positive assortative matching of lawyers and clients. Finally, the fact that both direct clients and clients obtained through paid-for referrals pay the same CF rate does not attest to cross-subsidization, as the cases a lawyer gets through referrals are quite different than those she gets directly.
Monday, January 30, 2012
No Formaldehyde Liability for US for FEMA Trailers After Hurricanes Katrina and Rita, Fifth Circuit Holds
The decision in In re FEMA Trailer Formaldehyde Products Liability Litigation, Nos. 10-30921, 10-30945 (5th Cir. Jan. 23, 2012), turns on liablity for the government "to the same extent" as private individuals, under the Federal Torts Claims Act, and the protection afforded private individuals giving voluntary disaster assistance under Good Samaritan statutes in Alabama and Mississippi.
Sunday, January 29, 2012
According to this article from CNN, French authorities have arrested Jean-Claude Mas, the founder of Poly Implant Protheses (PIP), in connection with alleged manslaughter and involuntary harm to a woman who died from cancer and had PIP breast implants. The article notes that 300,000 women in 65 countries received PIP breast implants, and that questions have been raised about the use of non-medical-grade silicon and PIP went bankrupt in late 2010.
The PIP breast-implants controversy may present an opportunity to observe non-U.S.-style mechanisms for what here would likely have been a mass tort litigation. Since the PIP breast implants were not permitted to be sold in the U.S., litigation may be concentrated abroad. In general, my sense is that the European approach is more reliant on criminal law than tort for deterrence, compensatory damages are limited because of the comparatively extensive governmental social insurance, punitive damages are unavailable, and class actions are traditionally not embraced (though class actions appear to be on the rise globally -- see, e.g., the Stanford Global Class Actions Exchange).
Interestingly, according to the article, one French woman who received PIP breast implants said, "Too bad we do not have a justice system like they do in the United States which allows the accumulation of penalties...because the small punishment he will receive for what he did to 300,000 to 400,000 women, is not much compared to what we have suffered because of him."
(H/t to my Mass Tort Litigation student Abigail Anderson for sending me the CNN story.)
Saturday, January 28, 2012
Scotusblog has the links to all the linked petitions in the litigation arising out of the use of preclusion in issue class actions. Here is the link to Scotusblog.
The question presented is "whether the imposition of liability based on earlier litigation without any assurance that the earlier litigation actually decided the precluded issue violates the Due Process Clause of the Fourteenth Amendment."
Friday, January 27, 2012
The Second Circuit issued an opinion yesterday reversing the district court and refusing to block enforcement of a judgment against Chevron in Ecuador. Coverage at Civil Procedure & Federal Courts Blog and Thompson Reuters News & Insight.
If you haven't seen it, I recommend reading the New Yorker coverage of the litigation. Talk about scorched earth! Its a fantastic teaching tool for civil procedure and complex litigation and a great read.
Tuesday, January 24, 2012
The litigation that arose of out the Engle class action ruling (Engle v. Ligett Group, 945 So.2d 1245 (Fla. 2006) might be coming to the Supreme Court. As mentioned in my previous post, petitions for cert have been filed by Philip Morris and others. In Engle the Florida Supreme Court held that the factual findings reached in an issue class class action can preclude the tobacco company from raising certain issues in subsequent litigation against class members. Now the individual cases that were part of that class action are being litigated and Philip Morris claims that the use of issue preclusion here violates their due process rights.
So far there is a petition for cert (2011 WL 6330473), Brief of the Product Liability Advisory Council, Inc. as Amicus Curiae in Support of Petitioners (2012 WL 135308), Brief of The Chamber of Commerce of The United States of America as Amicus Curiae in Support of Petitioners (2012 WL 167004) and Brief of Professors Aaron Twerski and James A. Henderson Jr. as Amici Curiae in Support of Petitioners (2012 WL 167005).
Sunday, January 22, 2012
Professor Martin Redish (Northwestern) has an article, Pleading, Discovery, and the Federal Rules: Exploring the Foundations of Modern Procedure, in the January 2012 issue of the Federalist Society's Engage.
Saturday, January 21, 2012
CNN reports that Chevron has appealed the $8.6 billion environmental judgment to Ecuador's National Court. The case has been closely watched not only for its high dollar amounts, but for the questions raised by Chevron about the integrity of Ecuador's courts. Questions of foreign-court bias may be more frequent as mass tort litigation increasingly becomes global tort litigation, and disputes against large, deep-pocketed corporations are brought by foreign claimants in foreign courts.
Friday, January 20, 2012
Tom Scott, the Executive Director of California Citizens Against Lawsuit Abuse, has posted on Fox&Hounds a 2012 wishlist for legal reform. While there are many proposed reforms helpful to business, I was struck by one not usually associated with business desires or law reform:
6. Stop cutting the funding of the California courts. Our court system is still reeling from cuts last year, and more cuts would only reduce access to the courts even more.
I am heartened to see that even those who are "fighting against lawsuit abuse" understand that adequate court funding is essential if suits are to be promptly adjudicated -- and found either meritorious and tried, or found unmeritorious and dismissed. Both pro-plaintiff and pro-business groups should be able to come together to advocate for court funding in a time of shrinking governmental budgets. And those who practice in mass tort litigation should be especially vocal, in light of the heavy demands such litigation places on state and federal courts. Moreover, as the election season approaches and disagreements multiply across the political spectrum, liberals and conservatives might remind themselves that they agree on government's core responsibility in providing a functioning court system for dispute resolution.
The title of this post is taken, very unimaginatively, from Jonathan Zittrain's The Future of the Internet and How to Stop It.
Adam Zimmerman has another great post on PrawfsBlawg today -- called the Privatized Attorney General -- about the possibility that attorneys general might save the class action device through parens patrea suits. Worth reading.
On the mass torts side of the spectrum, apparently WLF has filed an amicus brief seeking cert in the progeny of Engle - the case is Philip Morris USA, Inc. v. Campbell. The argument is that the use of issue preclusion in these tobacco cases, available because of a Florida Supreme Court ruling upholding an issue class action in the tobacco litigation there.
If any reader has more information, is submitting additional amicus briefs or authored the cert petition, please the informaiton to me so that I can post about it. The Wal-Mart v. Dukes opinion indicates to me that the Court (or at least Justice Scalia) is itching to beef up some defense-side due process rights, and this case is a good vehicle for that.
Adam Zimmerman, who is blogging up a storm at Prawfsblawg, has an interesting post discussing a proposal by Myriam Gilles and Gary Friedman to use attorney generals to bring suits on behalf of victims for their losses. Such parens patriae suits are, in fact, permissible, and could be a substitute for private enforcement through the class action. Our own Alexandra Lahav has written about the public function of class actions, and it is refreshing to see more people talk about litigation and enforcement, at least from my point of view.
Thursday, January 19, 2012
Symeon Symeonides has posted the latest update to "Choice of Law in the American Courts in 2011: Twenty-Fifth Annual Survey," to SSRN. Here's the abstract:
This is the 25th Annual Survey of American Choice-of-Law Cases. It is intended as a service to fellow teachers and students of conflicts law, both within and outside the United States. The Survey covers cases decided by American state and federal appellate courts in 2011. The following are some of the cases discussed:
• Three Supreme Court decisions, one on general jurisdiction, one on specific jurisdiction, and one holding that the Federal Arbitration Act preempts state court rulings that protected consumers by refusing to enforce certain class-arbitration waivers.
• Two state supreme court cases refusing to enforce arbitration clauses that waive tort claims arising from gross negligence and criticizing the Supreme Court for 'tendentious reasoning' and for creating new doctrines 'from whole cloth.'
• A New York case struggling with the Neumeier rules in a case involving the same pattern as Schultz, and a California case worthy of Traynor’s legacy in delineating the extraterritorial reach of California statutes.
• A Delaware case holding that Delaware has an interest in 'regulating the conduct of its licensed drivers,' even when they drive in states with lower standards; a conflict between a dram shop act and an anti-dram shop act; and a product liability case in which a driver who crushed his car after taking a sleeping pill prevailed on the choice-of-law question.
• A case enforcing a foreign arbitration and choice-of-law clause prospectively waiving a seaman’s federal statutory rights, even though there was little possibility for a subsequent review of the arbitration award.
• Several cases illustrating the operation of four competing approaches to statutes of limitation conflicts.
• A case rejecting a claim that a Sudanese cultural marriage was invalid because the groom had paid only 35 of the 50 cows he promised as dowry to the bride's father.
• Two cases recognizing Canadian same-sex marriages.
• A case holding that the court had jurisdiction to terminate a father’s parental rights without in personam jurisdiction over him, as long as the children were domiciled in the forum state.
• A case holding that a state's refusal to issue a revised birth certificate listing two unmarried same-sex partners as the child's parents after an adoption in another state did not violate the Full Faith and Credit clause.
• A case characterizing as penal and refusing to recognize a sister-state judgment imposing a fine for a violation of zoning restrictions.
• Several cases involving sex offenders required by sister-state judgments to register their place or residence, or terminating the obligation to register.
• Four federal appellate decisions holding that corporate defendants can be sued under the Alien Tort Statute for aiding and abetting in the commission of international law violations.
Tuesday, January 17, 2012
The New York Times reports that under new regulations to be announced by the Obama administration, pharmaceutical companies will have to report payments to non-employee doctors for "research, consulting, speaking, travel and entertainment." The reporting requirements are to cover any company that has a product covered by Medicare or Medicaid, and the reporting information is to be subsequently posted by the government on a publicly accessible website.
Adam Zimmerman (St. John's) has a nice post on Prawfsblawg called "The Rise of Executive (Branch) Compensation" in which he discusses the historical antecedents and politics of compensation funds for mass disasters. It reminds us that not all worthy victims have been the beneficiaries of such funds and the reasons why some are picked (and others are not) are not always clear.
American Lawyer has put together a list of most-appearing law firms over the past 10 years of its rankings for Litigation Department of the Year. Several firms on the list are cited for past awards for practice-area expertise in products liability. Here are those firms' rankings places in the overall Litigation Power Rankings AmLaw list (counting the firm with highest score as #1):
#3 Jones Day
#11 Shook, Hardy
#14 (tied) Reed, Smith
#14 (tied) Skadden
#19 King & Spalding
I practiced at both Jones Day and Skadden, and have worked with lawyers from Shook, Hardy; Reed Smith; King & Spalding; and Dechert. All are excellent.
Monday, January 16, 2012
Below is the announcement from Southwestern Law School, and here is the brochure.
Southwestern Journal of International Law presents
Friday, February 3, 2012, 9:00 a.m. – 5:15 p.m.
Southwestern Law School, Los Angeles, California
Panelists include (in alphabetical order):
· Samuel P. Baumgartner, Professor of Law, University of Akron School of Law
· Vaughan Black, Professor of Law, Dalhousie University Schulich School of Law
· Gary B. Born, Partner, WilmerHale, Lecturer on Law, Harvard Law School
· Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School
· Montré D. Carodine, Associate Professor of Law, University of Alabama School of Law
· Donald Earl Childress III, Associate Professor of Law, Pepperdine University School of Law
· Paul R. Dubinsky, Associate Professor of Law, Wayne State University Law School
· Allan Ides, Christopher N. May Professor of Law, Loyola Law School, Los Angeles
· Thomas Orin Main, Professor of Law, University of the Pacific, McGeorge School of Law
· Erin O’Hara O’Connor, Professor of Law and Director of Graduate Studies, Law & Economics PhD Program, Vanderbilt Law School
· Cassandra Burke Robertson, Associate Professor, Case Western Reserve University School of Law
· Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
· Linda Sandstrom Simard, Professor of Law, Suffolk University Law School
· Adam N. Steinman, Professor of Law and Michael J. Zimmer Fellow, Seton Hall University School of Law
· Janet Walker, Professor of Law, Osgoode Hall Law School
· Rhonda Wasserman, Professor of Law, University of Pittsburgh School of Law
· William E. Thomson, Partners, Gibson, Dunn & Crutcher LLP
· James H. Broderick, Jr., Partner, Squire, Sanders & Dempsey LLP
· Marcus S. Quintanilla, Counsel, O’Melveny & Myers LLP
· Ray D. Weston Jr., Vice President and General Counsel, Taco Bell Corp.
Sunday, January 15, 2012
California Supreme Court Limits Certain Manufacturers' Asbestos Liability in O'Neil, Describes Navy's Conduct Leading to Asbestos Injury for Service Members
In O'Neil v. Crane Co., the California Supreme Court this past week rejected asbestos liability for manufacturers whose products are added by third parties to other products that contain asbestos. No. S177401, slip op. (Cal. Jan. 12, 2012) Download O'Neil v. Crane Co_Cal Supreme Court_2012. The plaintiffs had argued that the defendants should be held liable because of the foreseeability that their products would be combined with other asbestos-containing products to which plaintiff was exposed, but in its opinion the Court highlighted that the defendant's product did not require asbestos-containing products and in fact could have been with used in combination with non-asbestos-containing products. Id. at 1, 12.
In its analysis, the opinion quotes Professor Alan Calnan's and my introductory asbestos article for the 2008 asbestos symposium at Southwestern Law School that Professor Calnan and I co-chaired, and at which co-blog editor Howard Erichson also spoke. Id. at 17 n. 19 (noting that "[s]ome commentators have observed that, due to the bankruptcies of...major suppliers of asbestos-containing products, asbestos personal injury litigants have shifted their focus in the past decade to 'ever-more peripheral defendants'"); Download Calnan & Stier_Perspectives on Asbestos Litigation_Overview and Preview_2008.
The facts in O'Neil underscore the federal government's role in asbestos injury to those in military service. From 1965 to 1967, plaintiff O'Neil served in the boiler room on the USS Oriskany, a Navy aircraft carrier authorized in 1942 and launched in 1945. Id. at 5. The Court notes that "[a]s early as 1922, the Navy was aware that airborne asbestos could potentially cause lung diseases," and "[i]ts industrial hygienists conducted studies on the health effects of asbestos exposure from the prewar period until well into the 1960s." Id. Nevertheless, the "Navy preferred asbestos over other types of insulating materials because it was lightweight, strong, and effective"; "Navy specifications required the use of asbestos-containing insulation"; and the Navy even ordered the conservation of asbestos in 1942 for the war effort. Id. at 2-3. Even if asbestos was beneficial militarily, the Navy might still have taken safety precautions to protect seamen. But as the Court notes, "the Navy did not warn seamen about the hazards of working with asbestos-containing materials and did not advise them to wear respirators or take other precautions during dusty work." Id. at 5-6.
The Navy is immune from suit because of the discretionary function exception to waivers of sovereign immunity. Id. at 6 (citing Collins v. Plant Insulation Co., 110 Cal. Rptr. 3d 241 (Cal. Ct. App. 2010), and Sea-Land Service, Inc. v. United States, 919 F.2d 888, 892-93 (3d Cir. 1990)). But through the Department of Veterans Affairs, the federal government does provide healthcare benefits, disability compensation, and dependency and indemnity compensation for veterans whose death stems from a service-related injury or disease, and has information specifically tailored to servicemen exposed to asbestos. See Dep't of Veterans Affairs, Occupational and Environmental Exposures: Asbestos. Removing such claims from litigation may be well-advised for the Navy, but one wonders if the apparently small and rigidly determined amounts of compensation by the VA offered are consistent with a government that also fully funds the 9/11 Victims Compensation Fund and demands a $20 billion Gulf Coast Claims Claims Facility from BP. To what degree has the low compensation offered by the federal government for its asbestos-related wrongs led to questionable claims against manufacturers, and the flooding of the courts with lawsuits?