January 21, 2012
Chevron Appeals $8.6 billion Judgment to Ecuador's National Court
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.
January 20, 2012
California Lawsuit Reform and the Need for Court Funding
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 Future of Class Actions (and How to Stop It)
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.
Zimmerman on Gilles and Friedman on Parens Patriae Suits
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.
January 19, 2012
2011 Choice of Law Survey
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.
January 17, 2012
Federal Government to Require Pharmaceutical Company Reporting of Payments to Doctors
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.
Zimmerman on Compensation Funds
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.
Top Products Liability Defense Firms in the AmLaw Litigation Power Rankings
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.
January 16, 2012
Southwestern Law School Symposium on Transnational Litigation and Civil Procedure
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.
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?