April 14, 2012
Comparative Case Valuation: Tobacco Edition
BNA Class Action Litigation Reporter has an article about Engle's progeny and how the Florida courts are dealing with the variation in jury verdicts in those cases. Here the link - behind a pay wall unfortunately.
In sum and substance, the Florida Supreme Court permitted an issue class action regarding the conduct of the tobacco companies to stand and ruled that the results have preclusive effect in subsequent cases. Now the Individual cases are being litigated. There are many plaintiffs verdicts. BNA describes that there have been 50 judgments and compensatory damages were awarded in 35 cases. Of those, in at least 10 the jury awarded more than $7 million. Not all have survived on appeal.
I am interested in this suit because I think issue class actions are the cutting edge of class litigation and because there is potential here to use statistical methods to come up with a solution that is better than spending many millions litigating every case to judgement and appealing it.
Here is the list of verdicts above $7 million:
$8 million compensatory and $71.2 million punitive damages (vacated on appeal) - Webb (No. 1D10-6557, 4/9/12)
$ 8 million compensatory - Tate (No. 2007–CA-021723 (17th Cir. Broward County))
$7.8 million compensatory - Campbell (No. 2008 CA 2147 (1st Cir. Escambia County)) (upheld on appeal).
$10 million compensatory - Cohen (No. 2007–11515 (17th Cir. Broward County)).
$7 million compensatory - Grey (No. 2007–CA-002773 (1st Cir. Escambia County)) (upheld on appeal)
$56.59 million compensatory - Naugle (No. 07–036736CA (17th Cir. Broward County)).
$15 million compensatory - Putney (No. 2007–CV-36668 (17th Cir. Broward County)).
$10.8 million compensatory - Townsend (No. 01–2008–CA-003978 (8th Cir. Alachua County)) (upheld on appeal) (40 million punitive damages award struck down).
$20 million compensatory - Alexander (No. 07–46830–CA-10–4 (11th Cir. Miami-Dade Co.)) (on appeal)
$10 million compensatory and $20 million punitives - Smith (No. 09-719-CA (14 Cir. Jackson County) (on appeal)
Readers who know of others, or have a list of all the verdicts, please let us know. ADL
April 11, 2012
Sherry on Concepcion and Dukes
Suzanna Sherry (Vanderbilt) has posted a copy of her forthcoming article, "Hogs Get Slaughtered at the Supreme Court," on SSRN. Here's the abstract:
Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The tragedy is that the impact of each of these cases might have been avoided had the plaintiffs’ lawyers, the lower courts, and the dissenting Justices not overreached. In this Article, I argue that those on the losing side insisted on broad and untenable positions and thereby set themselves up for an equally broad defeat; they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win” – with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.
Cheng on Trial Sampling in Mass Torts
Edward Cheng (Vanderbilt) has posted his paper, "When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling," on SSRN. It's also available through Penn's website. Here's the intro on Penn's website:
In many mass tort cases, individual trials are simply impractical. Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment discrimination suit that the Supreme Court reviewed last Term. With over 1.5 million women potentially involved in the litigation, the notion of holding individual trials is fanciful. Other recent examples of the phenomenon include the In re World Trade Center Disaster Site Litigation and the fraud litigation against light cigarette manufacturers, in which Judge Weinstein colorfully noted that any “individualized process . . . would have to continue beyond all lives in being.”
Faced with an unserviceable number of plaintiffs, courts have proposed sampling trials: rather than litigating every case, courts would litigate a small subset and award the remaining plaintiffs statistically determined amounts based on the results. But while sampling is standard statistical practice and often accepted as evidence in other legal contexts, appellate courts have balked— based on due process concerns—at the notion of court-mandated, binding trial sampling.
Despite this appellate reluctance, the controversy continues unabated. Trial courts have soldiered on by using nonbinding sampled trials (dubbed “bellwether trials”) to induce settlement, and a few brave appellate courts, including the Ninth Circuit in Dukes, have even hinted at an increased receptivity to sampling. Given that trial courts have few practical alternatives, one wonders if it is just a matter of time before their appellate brethren recognize the necessity of sampling.
And here's the SSRN abstract:
In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in which the “second best” assumption can be wrong. Under the right conditions, sampling can actually produce more accurate outcomes than individualized adjudication. Specifically, sampling’s advantages in averaging (reducing variability), shrinkage (borrowing strength across cases), and information gathering (through nonrandom sampling), can result in some instances in which ten trials are better than a thousand.
April 8, 2012
Bar on Punitive Damages Against Chrysler For Cars Sold Before 2009 Bankruptcy
The Wall Street Journal has a video describing the bar on punitive damages against Chrysler for new claims in connection with cars sold prior to Chrysler's 2009 bankruptcy. The video features Professor David Skeel (Pennsylvania).