Tuesday, January 26, 2016
Lance Cooper, a lawyer with ignition switch cases against GM, has made a motion to remove the MDL plaintiffs counsel in the ignition switch litigation. You can find some coverage by Sara Randazzo & Mike Spector at the Wall Street Journal. (I haven't seen the motion).
The first lawsuit to proceed to trial - of a total of six, three picked by plaintiffs, three by defendants - has ended with a dismissal with prejudice under a cloud of allegations of fraud. What does this say about bellwethers?
I think it says nothing about the underlying cases, or not very much. (It does tell you something about lawyer error, but that's a topic for another day). However, the recent events at trial do show that the way bellwether trials are structured is deeply flawed. If the cases tried are going to be meaningful, they should be randomly selected and the number of trials should be related to the variation in the underlying group of cases. If there is a high variation, you will need more trials to tell you much about the underlying run of cases. A number that is convenient (six, for example) is just that, convenient, but convenience should not be confused with meaningful. Now a lot is riding on this case because one would imagine, since plaintiffs picked it and they only get three, its a really good case for plaintiffs. So a skewed sample can tell you something - but what it ends up telling you is more about the lawyers than the underlying run of cases.
To understand this, imagine you have a jar full of marbles. If you know all the marbles are the same color, you can just pick one marble out of the jar to find out what the color of all the marbles is. But if the marbles are of various colors picking one marble is not enough. If you have a sense of the distribution of colors in the jar - say you know that there are some black and some red marbles - you can calculate how many marbles to pick out so that you will have a pretty good estimate of the proportion of red to black. The same with cases. If your cases are homogeneous, you can just try a few to get a sense of their value. The more heterogeneity, the greater the number of cases that need to be tried. This was the basis for Francis McGovern's idea of maturation of mass torts - you try lots of cases, and over time a value emerges. It was also the basis for the structure of bellwether trials in the 9/11 First Responders' Litigation.
Of course, its easy for me to say this. I am not running an MDL and I don't have to pay for all those trials, which are expensive. But that said, if you want to get a sample that could mean something, the sample size needs to be related to the variance of the underlying class and the method of selection needs to be random. That's basic statistical methods. I think that MDL judges need to partner with statisticians and have a serious conversation about what bellwether trials are trying to achieve and how best to do this. Judges have a lot of discretion and they can use it wisely to lead to fair and equitable results for everyone. There are ways to do better, we just need to find them.
Tuesday, January 21, 2014
You can find the Room for Debate segment here, with input from a number of law professors including Michele Landis Dauber (Stanford), Betsy Grey (Arizona State), and Stephen Shugerman (UC Berkeley)
Thursday, August 22, 2013
Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."
Update: here's a link to the New York Times article.
Monday, July 9, 2012
NPR has an extended interview with famed claims administrator Ken Feinberg about his new book, Who Gets What: Fair Compensation After Tragedy and Financial Upheaval.
July 9, 2012 in 9/11, Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Lawyers, Mass Disasters, Mass Tort Scholarship, Products Liability, Settlement | Permalink | Comments (0) | TrackBack (0)
Wednesday, May 2, 2012
In June, the Association of American Law Schools will host a major conference in Berkeley, CA, on environmental disasters. The sessions include such cheery topics as "History of Disaster," "Psychology of Disaster," "Disaster Federalism," and "Disaster Justice." Along the way, there will be sessions on tort law, environmental law, and regulatory perspectives on environmental disasters. The disputes arising out of 9/11, Katrina, and the Gulf oil spill leave no doubt that environmental catastrophes present some of the most challenging problems of mass tort litigation in the 21st century.
The speakers include many of the leading scholars in torts, environmental law, complex litigation, and related fields, including Tom Baker, David Dana, Daniel Farber, Sheila Foster, Myriam Gilles, Michael Green, Laura Hines, Keith Hylton, Gregory Keating, Douglas Kysar, Jonathan Masur, John Nagle, Adam Scales, Peter Schuck, Anthony Sebok, Catherine Sharkey, Jed Shugerman, Stephen Sugarman, and many others (and me!). I will speak on a panel about principles for compensation programs and mass settlements.
Tuesday, February 28, 2012
You don't need the Mass Tort Litigation Blog to tell you that the imminent BP trial has been stayed pending settlement talks. In the meantime, here are some thoughts from the ever relevant George Conk. Special shout out for his poetic references: Diving Into the Wreck: BP and Kenneth Feinberg's Gulf.
I was just at a wonderful conference at the Charleston School of Law on Mass Torts and the Federal Courts where Feinberg spoke. One of the key questions at the conference is the extent to which claims facilities (BP, 9/11, etc.) are unique and unlikely to be repeated or the wave of the future. The interesting thing about BP is that it shows the interaction between claims facilities and litigation - its not one or the other. Speakers mentioned how companies trying to get ahead of a litigation may well look to the BP model. Others questioned whether BP was really special because the company was prepared to admit liability (although not gross negligence).
I was especially interested by the remarks of Sheila Birnbaum, currently running the 9/11 Fund for first responders and who mediated settlements for the 94 families who chose not to participate in the 9/11 Victim Compensation Fund. Even the families who wanted a public trial to find out what happened ultimately settled because of the uncertainty of trial. This raises important questions about the purpose of litigation for individuals: is it ultimately to get compensation? How important is it to get to the "truth"? How important is vindication? Punishment? When people settle (or waive their right to litigate prior to filing suit), what kind of consent do we want and does money ultimately satisfy? Lynn Baker, who was at the conference, referred me to the following article that addresses some of these questions: Gillian Hadfield, Framing the Choice Between Cash and the Courthouse: Experiences with the 9/11 Victims Compensation Fund. This continues to be relevant, especially if Funds become a model rather than a one-off.
Tuesday, January 17, 2012
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.
Wednesday, January 4, 2012
Adam Zimmerman (St. John's) has a two new posts up on Prawfsblawg that are worth reading. In one he analyzes the differences between the 9/11 Victim Compensation Fund and the new fund crated to compensate first responders. In the other he discusses an alternative to aggregation - "flash mob litigation" in small claims court. Both worth reading.
Thursday, May 19, 2011
The Wall Street Journal reports that the Justice Department plans to appoint Sheila Birnbaum to run the $2.8 billion fund for Ground Zero workers. Here's an excerpt from the story:
The new fund was created late last year to provide compensation and health care for those who became ill after being exposed to the debris of World Trade Center rubble.
Ground Zero workers, as well as nearby residents and office workers who also breathed in the dust of the site, are eligible for compensation if the special master concludes their injuries are the result of such exposure.
. . .
According to people involved in the process, the Obama administration is concerned the fund could be swamped with thousands of applications for compensation from people who were many blocks away and now claim they have suffered after having watching the planes strike the buildings.
"The real challenge here is going to be figuring out what is and isn't compensable,'' said lawyer Noah Kushlefsky, who represents Ground Zero workers. "This fund is going to be harder than the last one, because the last one largely focused on the people who had died.''
Justice Department lawyers have already begun working out those rules, but they won't be finalized until the summer. In October, the government plans to start accepting claims for compensation.
Tuesday, December 21, 2010
As this article on CNN notes, the United States Senate continues to consider the proposed 9/11 first-responder healthcare bill, championed particularly by Senator Schumer of New York.
Saturday, November 20, 2010
Reading yesterday’s New York Times article on the 9/11 Workers Settlement, I couldn’t help but think of the other-regarding preferences and psychological influences that played a role in garnering the requisite 95.1% agreement. The two claimants quoted in the article, Jennifer McNamara (whose firefighter husband died of colon cancer last year) and Kenny Specht, a retired firefighter with thyroid cancer, both framed their ultimate decision to participate in the settlement in terms of helping others within the community of plaintiffs. As described by the N.Y. Times, McNamara “explained to friends in a letter that she did not want to delay the settlement for the many plaintiffs who needed it to pay mortgages and medical bills.” Specht said, “I am not sure that holding out for a better offer will ever be something that is attainable.”
I’ve written about this internal group pressure in the past and how claimants might be able to use it to their benefit as opposed to lawyers using it for theirs. It does appear that Napoli Bern Ripka LLP held at least one town hall meeting (video footage available below), but I’m not sure whether claimants were encouraged or given opportunities to discuss the deal with one another or whether the lawyers did most of the talking. Given the claimants geographical proximity to one another in the 9/11 Workers Settlement as well as the closeness of the firefighting and police officers’ communities, it appears that altruism, reciprocity, and a concern for others' well-being within their community played a significant role in members’ decision to approve the settlement (though the settlement did not receive the 100% approval rate that would have paid out $712 million). Others simply appeared to be exhausted by the protracted litigation and wanted finality. Still others, at least 520 of them, opted out (or did not respond by the deadline). A New York Times article last August described several plaintiffs' difficult decision-making process.
Although the House of Representatives has approved a bill that would reopen the 9/11 Victim’s Compensation Fund, the Senate has yet to approve it and those who have signed on to the 9/11 Workers Settlement will be ineligible for compensation.
Here's a link to Napoli Bern's press release (with the percentage of claimants signing-on in each tier).
Friday, November 19, 2010
The allocation neutral in the World Trade Center litigation reported today that 10,043 claimants have agreed to participate in the settlement. This number, which constitutes 95.1% of the 10,563 eligible claimants, apparently meets (just barely) the 95 percent threshold required under the terms of the settlement agreement. But the settlement agreement also required at least 90% participation and 95% participation by particular categories of claimants. The report filed today states that 87.4% eligible "Tier 1" claimants (2383 out of 2726) signed on. Does this mean that the settlement fails? Media reports suggest that the settlement is going forward, but I will be interested to find out whether all of the participation requirements were met.
In general, it comes as no surprise when a mass tort settlement meets a participation threshold, given that clients overwhelmingly follow their lawyers' advice to participate in a settlement. But the WTC litigation -- and particularly Judge Hellerstein's rejection of an earlier settlement proposal amid questions about whether a judge in a non-class action has any business "approving" or "disapproving" a settlement -- generated enough notoriety that reasonable observers might have wondered how claimants would react.
UPDATE/CLARIFICATION: The settlement agreement requires 90% participation by each category of claimants with "qualifying injuries" but does not require a specified percentage of participation by claimants with no qualifying injury. Tier 1 consists of claimants with no qualifying injury. Therefore, the participation levels do meet the requirement under the terms of the agreement.
Thursday, November 18, 2010
The results of how many plaintiffs signed on to the WTC Disaster Site Litigation Settlement, which required that 95% of the plaintiffs sign on for the settlement to go forward, will be announced at 1 PM tomorrow. Click here to see docket & documents online.
Interestingly, the allocation neutral overseeing this aspect of the settlement adminsitration is from Ohio - Matthew Garretson. His profile can be found here. Here is the description of the firm's work on allocating settlement proceedings to claimants:
Perhaps the hallmark of our settlement allocation service, GFRG helps ensure that similarly-situated claimants are treated the same under the methodology developed to allocate the settlement proceeds and to help ensure that every claimant is allocated a fair and equitable share of the settlement proceeds (taking into account the terms/conditions of the Settlement Agreement, the severity of the injury and the proof available).
The question of course is whether the terms of the settlement agreement - i.e. the matrix developed by the lawyers - fairly allocates funds and what data is used to make those determinations.
h/t Fred Mogul, WNYC.
Friday, October 29, 2010
In an article by Jim Snyder on Bloomberg news, Kenneth Feinberg defends the legal system especially for ordinary cases:
“I happen to believe, in the run-of-the- mill, everyday life in America, the legal system works pretty well.”
Monday, August 23, 2010
Michael Cooper has an article in the NYTimes about the two entitled "Spill Fund May Prove as Challenging as 9/11 Payments."
Richard Nagareda (Vanderbilt) is quoted as saying: "Although he had a very difficult time placing a dollar value on human life, in some way that was a more straightforward job than estimating the long-term harm to a shrimper’s business."
In both cases, I think, you have a situation where Feinberg is asked to monetize things that are very hard to monetize and about which people have strong and conflicting opinions - but that is what our tort system asks juries to do all the time. I've recently written on this issue in a piece called "Rough Justice" - an earlier draft is available on SSRN and I plan to post a revision soon.
The NYT article also raises the prospect of fraudulent claims. The 9/11 Fund was manageable in this regard because, as the paper quotes Feinberg “You’ve got verification of death."
Monday, August 9, 2010
The NY Times' Mireya Navarro has a long article today entitled "9/11 Settlements Bring Moment of Reckoning" about the disappointment of many plaintiffs in the WTC Disaster Site Litigation with the settlements they are being offered. The settlements take account both of the severity of the injury and the possibility that causation can be proven in court, leaving many with cancer or who have died of cancer getting less than they expected or hoped for.
A very important twist to the 95% agreement requirement in the settlement is the effect that is having on some plaintiff's decision to settle or not to settle. One is quoted as saying: "“It weighs heavy on one’s mind that your decision would impact the compensation of those who are sick, because if you don’t get 95 percent you’re not going to settle.”
Another interesting theme that comes out of the article is the expressive uses of the lawsuit for plaintiffs. One plaintiff who is taking a settlement of approximately $11,000, the article explained "To him, the legal battle was never about the money but about calling attention to the health consequences suffered by those “who stepped up to the plate” after the terrorist attacks."ADL
Thursday, June 24, 2010
Yesterday Judge Hellerstein held what the media is calling a "fairness" (in scare quotes) hearing on Wednesday and approved the settlement proposed for resolving the cases in the WTC Disaster Site litigation. Everyone was supportive, including Ken Feinberg.
Here's an interesting twist:
Tom Hayes of the A/P reports that the judge appointed Roy Simon of Hofstra to monitor attorney-client communications on the plaintiffs' side: "The monitoring would, ostensibly, reduce the possibility that some clients could be bullied or frightened into accepting the deal, or misled about how much money they might stand to receive." See the article here on MSNBC.com
Tuesday, June 15, 2010
Both the ABA Journal and the Wall Street Journal have articles in today's news about the use of social networking as a legal tool. The ABA Journal notes that law firms' websites are "set up to resemble community forums or news boards." But a closer look at the forums shows that they're principally meant for client recruitment and information dissemination. For example, Sokolove Law's website Yaztalk.com has created a Facebook group (with an empty "discussion" board) where it poses questions as posts, such as "Do you know your clot risk." Its main website has a chat function and a form for requesting a free legal consultation. Thus, both the website and the Facebook page seem focused on client recruitment, not building communities. The Wall Street Journal's report confirms as much in this short excerpt: "'Young ladies spend a lot of their time online, socializing through social media,' said Michael Skoler, [Sokolove's] chief marketing officer. The YazTalk.com site, which includes a sign-up form for legal consultation, has netted hundreds of clients, he said. 'The folks who reach us through social media are twice as likely to become clients as those who would reach us through television or print."
As someone who has written extensively about the power of social media to connect claimants in nonclass aggregation, allow them to discuss the litigation's progress and their particular ends with one another, and, ultimately, to make decisions and exercise client control, I have mixed reactions to websites like Yaztalk.com.
On one hand, the sites do a nice job of educating the public on alleged drug risks. Similar sites such as bigspills.com keep the public abreast of news developments in the growing BP oil spill. Sites like these provide a notice function (albeit one that is largely one-sided), which is an admirable public service. Other sites like Napoli Bern's site for the First Responders' 9/11 litigation (www.877wtchero.com) provide litigation documents, legal news, transcripts of judicial hearings, frequently asked questions, and all of the pertinent settlement documents.
On the other hand, despite the Wall Street Journal's quote that "[w]ith sites like Facebook and Twitter, it has become easier for firms to 'build targeted communities and to network within those communities,'" I see little evidence of genuine community. But I also see tremendous potential. As I wrote recently in Litigating Together: Social, Moral, and Legal Obligations, "Technology has changed the way we interact with one another socially, but it has also provided a means for facilitating traditional face-to-face interaction. Plaintiffs might use these new communication media to set up regional face-to-face meetings, discuss key decisions, receive attorney updates and recent court documents, pose questions, tell their stories, and generally keep in touch with one another. In short, this kind of technology makes it easier for geographically dispersed plaintiffs to coordinate initial meetings and, subsequently, to communicate, deliberate, and bargain with each other." (at 32) Giving litigants a voice in the decision-making process (through communicating with one another and voting on major litigation decisions) furthers litigants' faith in the judicial system and makes it less likely that they'll collaterally attack the result.
So, while I applaud the use of technology, I do hope that it can be deployed in more meaningful ways that extend beyond client recruitment to allow claimants to communicate with each other. (Of course, to the extent that it includes privileged information, it would need to be password protected and include appropriate security measures.)
If you're interested in the use of technology in class actions, you might also take a look at an article by Bob Klonoff, Mark Herrman, and Brad Harrison titled "Making Class Actions Work: The Untapped Potential of the Internet."
(h/t Jason Solomon)
Monday, June 14, 2010
When the 9/11 Victim Compensation Fund was created it was widely considered a one time, unique institution responsive to the particular national tragedy (and the risk to the airline industry of catastrophic liability). It looks like the Obama administration is trying to negotiate the creation of a similar fund with BP to pay the victims of the oil spill.
It is still not clear whether the fund will happen, how much money will be available, and whether participants will have to give up their legal claims as the participants in the 9/11 Fund did. But some choice quotes from an AP report published today indicate that this is in the offing.
The NY Times also reports on the proposed fund. The Times reports that "Administration officials said that since last week, White House lawyers have been researching Mr. Obama’s legal authority to compel BP to set aside money for claims, based on the 1990 Oil Pollution Act." However, the President's authority is not clear. The desire for such a fund is driven by the concern about BP's 10+ billion dollar dividend. Joseph Grundfest (Stanford) is quoted in the Times: "“I’m not aware of any legal precedent that would give the government any authority that would preclude British Petroleum from paying dividends" especially because there isn't any evidence that BP lacks the funds to pay for the damages caused by the spill. The Times also quotes John Coffee (Columbia) stating that the courts may have the power to issue an injunction to prevent BP from paying the dividend under some circumstances.
Wednesday, June 2, 2010
The lawyers have offered to cap their fees at 20% instead of 30%. But this does not solve all the issues identified by Judge Hellerstein, particularly the "pig in a poke" problem - claimants can't figure out what they will get before signing on.
This offer to reduce fees reminds me of the governmental attempt to reduce the bonuses AIG had contracted to give certain employees after its implosion. Not that the situation is the same, but it shares a theme. The theme: even when you have a signed contract there is the possibility to renegotiate (perhaps something more than a mere possibility in the case where a federal judge says your fees are too high) .