Wednesday, August 16, 2017
There is a persistent question in multidistrict proceedings: what duties do lead lawyers owe to individual plaintiffs who have no direct attorney-client relationship with them?
That's the question at the heart of a recent opinion by Judge David Herndon in the Yazmin/Yaz litigation, although the opinion itself is about whether remand to state court is appropriate. (Spoiler: Judge Herndon thinks it's isn't.)
After the negotiating parties in the underlying MDL reached a global settlement for the ATE (arterial thromboembolism) cases, Judge Herndon issued a series of orders designed to usher plaintiffs into the deal. One of those was a Lone Pine order that required every non settling plaintiff to produce fact sheets, over three years worth of pharmacy and medical records, and a case-specific expert on general and specific causation--all within three months. Those who didn't comply faced dismissal.
As you might guess, the plaintiffs currently suing missed that deadline and their various attorneys failed to respond to Bayer's motion to dismiss. As such, with new counsel, they are now suing lead counsel (Micheal S. Burg, Roger Denton, Michael A. London, and Mark R. Niemeyer) for legal malpractice under Illinois common law.
What question lies at the heart of the case? You guessed it: what duties do lead lawyers owe to non-client plaintiffs in a multidistrict proceeding?
Returning for a moment to the question of federal jurisdiction, given the way that the complaint is framed, jurisdiction appears to lie under CAFA, 28 USC 1332(d)(2) (it's pled on behalf of a class). But the parties take different routes. Disgruntled plaintiffs argue that it's a mass action that contains fewer than 100 people (despite it being pled as a class action), and defendants argue that it presents federal question jurisdiction under 1331. Relying on Grable and Gunn, the court agrees.
I confess, I'm not yet convinced that these state-law malpractice claims implicate a federal issue under Grable.
Either way, as Judge Herndon (and lead lawyers) framed it, even if the dissatisfied plaintiffs sued individually, federal question jurisdiction would lie over their claims, thereby allowing defendants to remove and send it to Judge Herndon. Judge Herndon, you may recall, presided over the original claims and appointed the leaders in the first place.
There hasn't been a ton written on the fiduciary question, but Professor Charlie Silver's work comes readily to mind. In his article, The Responsibilities of Lead Lawyers and Judges in Multidistrict Litigation, he writes:
Given that both lawyers who represent individual claimants and lawyers who handle class actions are fiduciaries, it would be surprising to discover that lead lawyers in MDLs were not. . . . Given the dearth of authority directly on point, judges may take guidance from other bodies of law. If they do, they will quickly conclude that lead attorneys are fiduciaries. Mass tort lawyers are fiduciaries, and so are lawyers who represent plaintiff classes. These examples are the most analogous to lead counsel.
My own view is similar. Without imposing fiduciary duties on lead lawyers, all sorts of mischief could result. Of course, whether lead lawyers in Yasmin/Yaz breached those duties in a way that amounts to malpractice is a separate question. But, given the lengths they've taken to have the malpractice claims heard before Judge Herndon, leaders clearly think they have a much better chance there than in IL state court.
Casey et. al. v. Roger Denton, et. al. is worth following. Here are a few of the relevant documents:
Sunday, August 6, 2017
Sunday, July 23, 2017
Skadden Arps has posted its Class Action Chronicle for Summer 2017, which includes updates on Third-Party Litigation Funding, Class Certification Decisions, and Class Action Fairness Act Decisions.
Saturday, July 15, 2017
Judge Jack Weinstein of the Eastern District of New York, who is noted for his opinions in many mass torts including Agent Orange, has surpassed 50 years on the bench. Shibani Gokhale, At 95, Weinstein Keeps Going After 50 Years on Bench, Law.com (July 13, 2017).
Friday, June 2, 2017
HR 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, has now passed the House and is pending in the Senate's Committee on the Judiciary. How might that bill affect plaintiffs involved in mass torts like mesh, Essure, Yaz, Mirena, NuvaRing, Ortho Evra, Power Morcellator, or the many hip implant suits?
Simply reading the bill, I'm afraid, won't help too much. It's shrouded in legalese. As such, I've marked up the bill to explain in non-legalese which provisions help and hurt mass-tort victims and consumers.
Many of the class action provisions in HR 985 don't affect mass-tort plaintiffs at all since those lawsuits rarely proceed as class actions (albeit, there are some notable exceptions, like the NFL concussion cases and the injuries incurred during the clean-up of the BP oil spill; both litigations were certified as settlement class actions).
There is, however, a possibility for judges to use class actions as a means to step in and ensure that plaintiffs are being adequately represented (and that resulting settlements are fair, reasonable, and adequate). How? Through the issue class action. Unfortunately, as HR 985 is currently written, it would completely eliminate that possibility.
I've studied MDLs for many years now and have written articles that are critical of both repeat player plaintiffs' attorneys and the manner in which judges sometimes handle these cases. Over the past four years, I've collected data on and analyzed 73 multidistrict proceedings. Although I'm still in the process of writing a book about my findings, one thing has become glaringly clear to me: the systematic lack of checks and balances in our courts seem to profit everyone but the plaintiffs.
Analyzing the deals repeat players make, the “common-benefit” attorneys’ fees that the lead plaintiffs’ attorneys receive to run the proceedings, and the judicial rulings in mass-tort cases consolidated over 22 years and settled over 12 years reveals a disturbing pattern: repeat plaintiff and defense attorneys persistently profit from the current system.
Corporate defendants end sprawling lawsuits and lead plaintiffs’ lawyers broker deals that reward them handsomely and sometimes pay litigants very little. For example, in litigation over the acid-reflux medicine, Propulsid, only 37 of 6,012 plaintiffs (0.6 percent) recovered anything through the strict settlement program. Their collective recoveries totaled no more than $6.5 million. Yet, the lead plaintiffs’ attorneys received over $27 million in common-benefit attorneys’ fees, vividly illustrating the worry that a corporate defendant might trade higher fees for less relief to plaintiffs.
So, is reform needed? Absolutely. Is HR 985 the right ticket? No, not as it's currently written.
As such, I've marked up the bill in a way that begins to instill the necessary reforms and eliminates (or changes) provisions that set up further (and unnecessary) roadblocks for plaintiffs. It also explains what the proposed provisions do in plain English: Download HR985 Burch Mark-up
If you want some version of HR 985 to pass, please consider forwarding this revised version to your Senator and do not support the bill as it reads now.
For those who care more about the legalese, I was contacted by a House subcommittee to provide nonpartisan, academic commentary on the bill, which I did. That write up is included here (note, however, that this is a commentary on the original House bill and some changes have been made to the current bill that address a few of the concerns I raised): Download Burch Final Comments on Fairness in Class Action Litigation Act
There's no need to take just my word for it, though. Every other academic that I know of opposes this bill, as has the Federal Rules Committee. This committee, formally known as the Committee on Rules of Practice and Procedure, just happens to include Neil Gorsuch, now Justice Gorsuch (of the U.S. Supreme Court), whose views are reflected in the letter below as well.
And here are links to other academic commentary -
Professor John C. Coffee, Jr. (Columbia Law School): Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Professor Howard Erichson (Fordham Law School): Download Erichson-hr985-letter
Professor Myriam Gilles (Cardozo Law School): Download Gilles Letter to James Park on HR 985
Friday, May 12, 2017
An Iowa class action (subject to CAFA's local class exception) has been approved by the Iowa Supreme Court. Here is the report from Iowa radio. You can find the opinion here: Freeman v. Grain Processing Corporation.
The court considers arguments that individual defenses ought to defeat class certification, as well as arguments based in the Supreme Court's opinions in Wal-Mart and Tyson Foods and rejects them. It explained:
GPC argues that class certification will deny it the fair opportunity to contest whether individual homeowners have suffered injury or damage. We disagree. The plaintiffs have proposed a formula for damages. GPC can contest the appropriateness of that formula before the jury. If a special jury verdict is entered approving this formula and that verdict is supported by substantial evidence, then potentially this formula can be used in subsequent claims administration by the court while preserving GPC’s due process and jury trial rights. If no damage formula is approved, then there would have to be subsequent individual trials on damages. Either way, GPC’s rights would be protected. (33)
One additional aspect of the case is worth noting. The Court specifically differentiates this nuisance class action, which alleges injury in the form of property damage, from a personal injury action and distinguishes some federal precedent on that basis. As I show in a forthcoming article in NYU Law Review called Mass Tort Class Actions: Past, Present and Future, that is a common pattern for mass tort classes that have been certified for litigation. For example, the first asbestos class actions certified were property damages classes. In that article, I review all the mass tort class actions considered by the federal court from the promulgation of the class action rule through Amchem, and explain how they relate to developments in tort law during the same period. I will be posting this article to SSRN in July.
Friday, March 3, 2017
Bruce Kaufman, the senior legal editor at Bloomberg BNA, has written a very informative series of articles examining the prospects that the House, Senate, and President will enact wide-ranging tort and civil justice "reform" legislation. This legislation includes:
- HR 985, the "Fairness in Class Action Litigation Act"
- HR 725, the "Innocent Party Protection Act"
- HR 469, the "Sunshine for Regulatory Decrees and Settlements Act"
- HR 720, the "Stop Settlement Slush Funds Act" or "Lawsuit Abuse Reduction Act"
- and HR 906, the "Furthering Asbestos Claims Transparency Act"
All three articles are worth a careful read. Links and downloads included below, courtesy of Bruce and Bloomberg BNA.
- Part 1: Trump to Weigh Litigation Changes, Download BNA - Trump to Weigh Litigation Changes Long Coveted by Business
- Part 2: Push to Enact Civil Justice Bills Follows Industry Playbook, Download BNA - Push to Enact Civil Justice Bills Follows Industry Playbook
- Part 3: Trump Seen as Supportive of Business-Backed Litigation Bills, Download BNA - Trump Seen as Supportive of Business-Backed Litigation Bills
For those of you who missed the academic roundup on HR 985, you can find it here.
Floor debate on at least four of the bills (including the now merged HR 985 and HR 906, class actions and asbestos) is scheduled to begin as soon as the week of March 6. A seventh bill on medical malpractice reform, HR 1215, may be voted on the week after March 6.
Tuesday, February 21, 2017
Academics have been busy this week providing commentary on HR 985, the "Fairness in Class Action Litigation Act of 2017." Here's a round-up of the commentary thus far (and please do let me know if I've missed someone).
John Coffee (Columbia): Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Howard Erichson (Fordham): Download Erichson-hr985-letter
Myriam Gilles (Cardozo): Download Gilles Letter to James Park on HR 985
And mine, Elizabeth Chamblee Burch (Georgia): Download Burch Final Comments on Fairness in Class Action Litigation Act
For those of you who like up to the minute commentary, several academics and reporters keep very active twitter accounts that track the bill: @adam_zimmerman, @elizabethcburch, @HowardErichson, @PerryECooper
Saturday, February 18, 2017
Class actions and MDL have real problems that need fixing. I have written about these problems at length, most recently in Aggregation as Disempowerment. But the new bill that just passed the House Judiciary Committee does not fix any of the real problems. Instead, it is a crass attempt to undermine any effort by plaintiffs to seek justice in mass disputes.
The bill, H.R. 985, the "Fairness in Class Action Litigation Act of 2017," seeks to reduce defendants' exposure to liability for mass harms by tightening the standard for class certification, imposing an ascertainability requirement, delaying the payment of class counsel fees, limiting the use of issue class actions, expanding diversity jurisdiction, mandating Lone Pine orders in MDL, banning trials in MDL, and capping MDL personal injury attorneys' fees at 20%, among other things. As Beth Burch noted, the bill does not make things fairer for those who have been wronged.
I would like to see thoughtful reforms to help courts distinguish meritorious from non-meritorious claims. I would like to see thoughtful reforms to protect claimants from unfair settlements in both class actions and MDL. And I would like to see thoughtful reforms to ensure that fees reflect what lawyers actually accomplish, not inflated settlement valuations. The abuses in class actions and non-class mass litigation happen mostly in settlement, not litigation and adjudication. But that is not what this bill would address. Instead, its provisions are aimed mostly at protecting defendants from the kinds of class actions and mass litigation that actually empower consumers, employees, citizens, and others to fight corporate and government wrongdoing.
Even where the bill aims at real problems (such as its provision to expand diversity jurisdiction to reach plaintiffs suing diverse defendants but who join with a non-diverse plaintiff), it goes too far, failing to match its solution to the problem of magnet jurisdiction in nationwide mass disputes.
In my letter to Congressional leaders, I attempt to explain which of the provisions of H.R. 985 are especially problematic, and why. If you're interested, you can find the letter here:
Monday, February 13, 2017
The U.S. House of Representatives is considering a bill that would substantially curtail the usefulness of class actions and multidistrict litigation, but would not make things "fairer" for class members.
Alison Frankel has a great write-up on the proposal that includes my preliminary comments along with Professor Myriam Gilles's comments. I'm heartened that representatives are reaching out to academics, because I have a number of concerns with the bill's proposals. If you are likewise concerned, then you should weigh-in, too. The House is marking up the bill on Wednesday.
My comments are available here: Download Final Comments on Fairness in Class Action Litigation Act
Sunday, September 18, 2016
Professors Andrew Bradt (UC Berkeley Law) and D. Theodore Rave (U. Houston Law) have posted to SSRN their article, The Information-Forcing Role of the Judge in Multidistrict Litigation, Cal. L. Rev. (forthcoming). Here is the abstract:
In this article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL? Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, nearly half of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates — and in many ways complicates — the principal-agent problems that plagued the class action. Like a class action, nearly all MDL cases are resolved by a comprehensive global settlement agreement, but, unlike a class action, in MDL the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary,” who reserves the right to offer a non-binding opinion about the fairness of the settlement to send an easy-to-understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.
Tuesday, August 16, 2016
As our readers surely know, despite its bulky name, multidistrict litigation (“MDL”) is in the news constantly: litigation over Volkswagen's defeat device, GM’s ignition defect, Toyota’s sudden acceleration, asbestos, and medical drugs and devices (pelvic mesh, Yasmin/Yaz, NuvaRing, Vioxx) are just a few of the higher profile MDLs.
MDL now comprises over 36% of the entire federal civil caseload (that number leaps to 45.6% if you exclude social security and prisoner cases), yet courts and Congress have made it more difficult for these cases to proceed as certified class actions. This litigation doesn’t go away without class certification as many tort reformers believe, it simply persists with far less judicial oversight.
Few rules and little appellate oversight on the one hand, plus multi-million dollar “common-benefit fees” for the lead lawyers who shepherd these cases toward settlement on the other may tempt a cadre of repeat attorneys to fill in the gaps in ways that further their own self interest. (Because there are so many cases involved, judges appoint "lead lawyers" to litigate and negotiate on behalf of the entire group of plaintiffs; if their individual attorney isn’t a lead lawyer, then that attorney has little say in how the litigation is conducted.)
To shed light on some of these issues, my co-author, Margaret Williams, and I have posted a revised version of our paper, Repeat Players in Multidistrict Litigation: The Social Network (forthcoming, Cornell Law Review) on SSRN.
We collected data on who the lead attorneys are (plaintiff and defense side) in all product-liability and sales practice cases that were pending on the MDL docket as of May 2013 (those cases covered a 22-year span), built an adjacency matrix, and employed a two-mode (actors and events) projection of a bipartite network (also known as an affiliation network) to graph the ties between lawyers judicially appointed to leadership positions (the actors) in multidistrict proceedings (the events). (For the non-statistically inclined, this social network analysis is somewhat akin to the kind that Facebook has popularized.)
The point was to reveal what the naked eye cannot see: how those attorneys and MDLs connect to one another. (Detailed, searchable PDFs of the social network with the players and litigations are available here). We also collected data on the publicly available nonclass settlements that repeat players brokered, reviewed news and media accounts of those litigations, and analyzed the common-benefit fees awarded to the lead plaintiffs' lawyers.
Here’s a summary of our key findings:
- Repeat players are prevalent on both the plaintiff and the defense side.
- No matter what measure of centrality we used, a key group of 5 attorneys maintained their elite position within the network.These 5 attorneys may act as gatekeepers or toll takers, for example. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way.
- By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome.
- Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the plaintiffs’ expense.
A highly concentrated plaintiff and defense bar is nothing new, nor is the disquiet about where that concentration may lead. As scholars have long recognized, repeat play tends to regress our adversarial system from its confrontational roots toward a state of cooperation.
In the criminal context, prosecutors and public defenders routinely work together through plea bargaining, leading them toward mutual accommodation; incumbents form a primary community of interest, whereas clients present secondary challenges and contingencies. As such, adversary features are often overshadowed by regulars’ quid pro quo needs. As Professor Jerome Skolnick has explained, those working group relationships become a social control problem only once they reach a “tipping point where cooperation may shade off into collusion, thereby subverting the ethical basis of the system.” (Social Control in the Adversary System, 11 J. Conflict Resol. 52, 53 (1969)).
As I’ve argued in a separate article, Monopolies in Multidistrict Litigation, we've reached that tipping point in MDL, and these circumstances warrant regulation. Even though MDL judges are the ones who entrench and enable repeat players, they also are integral to the solution.
By tinkering with lead-lawyer selection and compensation methods and instilling automatic remands to a plaintiff’s original court after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. Put simply, the antidote is to reinvigorate competition among plaintiffs’ attorneys and I’ve set forth several specific proposals for doing so in Part III of Monopolies in Multidistrict Litigation.
For interested judges, that article's appendix also contains a Pocket Guide for Leadership Appointment and Compensation, a Sample Leadership Application form, and sample orders for suggesting remand and replacing leaders who ignore adequate representation concerns.
August 16, 2016 in Aggregate Litigation Procedures, Current Affairs, Ethics, Lawyers, Mass Tort Scholarship, Pharmaceuticals - Misc., Prempro, Procedure, Products Liability, Settlement, Vioxx | Permalink | Comments (0)
Monday, July 25, 2016
Sergio Campos has a great new review on JOTWELL of an important report from Adam Zimmerman and Michael Sant'Ambrogio. The report concerns the use of aggregation techniques in administrative agencies and is both conceptually and practically interesting. Both the review and the report are worth reading!
Saturday, June 25, 2016
New Book on Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation
A new book, Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation, has been published by Edward Elgar Publishing (also available on Amazon). The editors of the book are Associate Dean Deborah Hensler (Stanford Law) and Professors Christopher Hodges (Oxford) and Ianika Tzankova (Tilburg Law). A global group of aggregate-litigation scholars contributed to the book, including Dean Camille Cameron (Dalhousie Law, Canada); Associate Dean Manuel Gomez (Florida International Law); Professors Agustin Barroilhet (U. Chile Law), Naomi Creutzfeldt (Research Fellow, Oxford), Axel Halfmeier (Leuphana U., Germany), Kuo-Chang Huang (Member, Taiwan national congress and formerly of National Cheng-Chi U., Taiwan), Jasminka Kalajdzic (Windsor Law, Canada), Alon Klement (Tel-Aviv U., Israel), Elizabeth Thornburg (SMU Law), and Stefaan Voet (U. Leuven & U. Hasselt, Belgium); and myself.
I authored a chapter, The promise and peril of media and culture: The Toyota unintended acceleration litigation and the Gulf Coast Claims Facility in the United States, and Professor Ianika Tzankova and I co-authored another chapter, The culture of collective litigation: A comparative analysis.
The book was a remarkable and fascinating undertaking, with many of us contributors gathering at several conferences across the globe over recent years to discuss and compare our ongoing research. Here is a brief description of the book:
In recent years collective litigation procedures have spread across the globe, accompanied by hot controversy and normative debate. Yet virtually nothing is known about how these procedures operate in practice. Based on extensive documentary and interview research, this volume presents the results of the first comparative investigation of class actions and group litigation ‘in action’.
Produced by a multinational team of legal scholars, this book spans research from ten different countries in the Americas, Europe, Asia and the Middle East, including common law and civil law jurisdictions. The contributors conclude that to understand how class actions work in practice, one needs to know the cultural factors that shape claiming, the financial arrangements that enable or impede litigation and how political actors react when mass claims erupt. Substantive law and procedural rules matter, but culture, economics and politics matter at least as much.
This book will be of interest to students and scholars of law, business and politics. It will also be of use to public policy makers looking to respond to mass claims; financial analysts looking to understand the potential impact of new legal instruments; and global lawyers who litigate transnationally.
We are honored that Professor Geoffrey Hazard (Emeritus, UC Hastings Law & Penn Law) offered the following comment on the book:
Class Actions in Context is a penetrating analysis of class and group actions worldwide. A group of international scholars brings to bear legal, economic, and political analyses of this evolving judicial remedy. It explores various substantive claims ranging from consumer protection to securities litigation. Drawing on case studies of practice as well as legal analysis, it demonstrates the importance of factors running from litigation finance to background cultural traditions. It is worth study in every legal system.
Thursday, June 16, 2016
On Bloomberg BNA Perry Cooper has an important article on MDL leadership fights entitled "MDLs Led By the Usual Suspects, and Not Everyone is Happy."
Our own Prof. Burch's work is featured. Cooper writes "Burch, a professor at the University of Georgia Law School in Athens, Ga., who specializes in complex litigation, said she's troubled by the number of “repeat players” she sees among attorneys that represent both plaintiffs and defendants in MDLs."
Elizabeth Cabraser, a frequent leader in MDLs, explains: "The problem for getting new players into the leadership is that there are economic barriers to entry,” she said. “To be part of the leadership you have to write a check. You have to put up the money and spend the time.” Cabraser also links the developments in MDLs to changes in the legal culture. As Cooper quotes her: “We all became plaintiffs’ attorneys because we didn't want to work for big firms—we wanted to do our own thing,” she said. “But in an MDL everything is by committee.”
The article also has some good tidbits on Bellwether trials. One plaintiffs lawyer explains: "Large verdicts in bellwether trials can be great from a plaintiff's perspective, Berezofsky said, but they can give clients an expectation that the resolution of their case will be in keeping with the verdict." This lawyer says that for claimants in the middle of the bell curve, an MDL saves money and time, but not for claimants who have more severe injuries because "global settlements generally don't take into account their individual, specialized injuries."
You can find the paper detailing Burch's findings, Monopolies in MDL Litigation, on SSRN.
Sunday, May 29, 2016
Professor Christopher Mueller (Colorado Law) has posted to SSRN his forthcoming article, Taking a Second Look at MDL Product Liability Settlements: Somebody Needs to Do It, 65 U. Kan. L. Rev. (forthcoming 2017). Here is the abstract:
This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, and does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. The best way to do so is to allow collateral review of such settlements in suits brought by dissatisfied claimants.
Friday, April 29, 2016
Our own Howie Erichson has posted his latest piece, Aggregation in Disempowerment: Red Flags in Class Action Settlements, on SSRN. It's a great read for judges and attorneys alike and points out--as the title suggests--provisions in class action settlements that should give judges pause before approving a class settlement.
Here's the abstract:
Class action critics and proponents cling to the conventional wisdom that class actions empower claimants. Critics complain that class actions over-empower claimants and put defendants at a disadvantage, while proponents defend class actions as essential to consumer protection and rights enforcement. This article explores how class action settlements sometimes do the opposite. Aggregation empowers claimants’ lawyers by consolidating power in the lawyers’ hands. Consolidation of power allows defendants to strike deals that benefit themselves and claimants’ lawyers while disadvantaging claimants. This article considers the phenomenon of aggregation as disempowerment by looking at specific settlement features that benefit plaintiffs’ counsel and defendants without benefiting class members. Recognizing that protection of disempowered class members lies with judges who review settlement agreements, the article identifies red flags to alert judges to problematic settlements and fee requests. By showing how certain settlement features reflect defendants’ cooption of the power of aggregation, the article offers a framework for thinking about class action power dynamics in the age of settlement.
Thursday, April 28, 2016
In my first post on Monopolies in Multidistrict Litigation, I noted that lead lawyers and defendants seem to benefit in tandem from the settlements they negotiate. This second post, Part II, explains how repeat players on both plaintiff and defense sides have perfected a fundamental shift in settlement design.
As I elaborate on pages 19-21, the demise of the mass tort class action makes it more difficult for defendants to achieve holistic closure, for MDL settlements technically bind only those litigants before the court. But defendants have been able to regain a greater degree of finality through a foundational shift in settlement construction: unlike traditional settlements between plaintiffs and defendants, all twelve deals in the dataset were agreements between lead lawyers and defendants.
As such, these deals position lead plaintiffs’ lawyers as settlement gatekeepers, for defendants will not make better offers to others without the threat of trial; doing so would work against their closure goal. These new deals then serve as a mandatory gateway for anyone wanting to settle, and typically require non-lead attorneys to become signatories alongside their clients. Accordingly, all master settlement agreements in the dataset aimed some provisions at plaintiffs’ attorneys and some at their clients. As a later post will explore, it's the provisions targeting plaintiffs' attorneys that raise the most ethical problems.
Making deals with plaintiffs’ attorneys masterfully furthers defendants’ end game in two ways.
First, the agreements impose uniform endorsement requirements on participating attorneys to discourage them from “cherry picking,” a practice in which lawyers settle most cases, but continue litigating those with the strongest claims or most sympathetic facts. By requiring a high percentage of plaintiffs to accept the settlement offer for it to take effect and insisting that individual attorneys recommend that all their clients settle (including clients who had not yet sued or who were pursuing relief elsewhere), defense attorneys essentially conditioned plaintiffs’ attorneys fees on achieving their closure aims.
A plaintiff’s attorney is either “all in” and would collect significant contingent fees from all her settling clients, or “all out” and would have to spend significant resources litigating individual cases. As such, recommendation provisions alter the typical contingent fee model where an attorney’s recovery increases alongside her clients’ recovery and instead ties plaintiffs’ attorneys’ financial self-interest to each other and to the entire claimant base.
This shift also allows defendants to reach some plaintiffs who are outside of the federal court’s jurisdiction, and others who haven’t yet filed suit (through case census provisions - see pp. 27-29). It thereby recaptures some of the finality that class actions once offered through binding absent class members.
Second, when combined with the defendant's ability to walkaway from the deal if too few claimants consent to settle, provisions aimed at plaintiffs' attorneys (attorney-recommendation provisions, attorney' withdrawal provisions - see pp. 19-26) collectively reduce the demand for legal representation. The settlement effectively becomes the only “game” in town.
Like oligopolists, leaders are able to thwart competition and reduce demand by using attorney withdrawal and recommendation provisions to restrict the legal services market (at least for those with similar allegations against the same defendant). When defendants threaten to abandon the deal if too few plaintiffs participate, and participating attorneys must recommend the deal to all of their clients and withdraw from representing those who refuse, leaders can regulate the legal service being offered and control a sufficiently large share of that market
In this sense, master settlements can recreate bottleneck problems where dominant firms raise competitors’ costs by obtaining exclusionary rights; once defendants negotiate master settlements with plaintiffs’ leadership, that agreement typically becomes the only settlement option.
Why should we be concerned? Apart from inherent economic concerns that arise under these conditions, the next post will explore why provisions targeting attorneys are ethically troubling.
Thursday, April 21, 2016
I've spent the better part of the past year and a half analyzing the publicly available nonclass aggregate settlements that have taken place in multidistrict litigation alongside leadership appointments, common-benefit fees, and, where available, recovery to the plaintiffs. This has given me an in-depth look at what's happening (or has happened) in Propulsid, Vioxx, Yasmin/Yaz, DePuy ASR Hip Implant, Fosamax (2243), American Medical Systems pelvic mesh litigation, Biomet, NuvaRing, and Actos. I've also analyzed fee practices in Baycol, Ortho Evra, Avandia, Mentor Corp. ObTape, Prempro, Chantix, Pradaxa, and Ethicon Pelvic Repair.
This endeavor has been deeply unsettling for a variety of ethical, doctrinal, and systemic reasons. Professors Erichson and Zipursky's prior work on Vioxx opened our eyes to troubling provisions in that deal, but I had no idea how widespread the problems were or how they had evolved over time from deal to deal until now.
Propulsid appears to be the primogenitor, for all subsequent deals in the data replicated some aspect of its closure provisions. But Propulsid is extraordinarily troubling: 6,012 plaintiffs abandoned their right to sue in court in favor of settling. Only 37 of them (0.6 percent) recovered any settlement money through the physician-controlled claims review process, receiving little more than $6.5 million in total. Lead lawyers, on the other hand, received over $27 million in common-benefit fees through a deal they negotiated directly with the defendant (and had the court approve). Sadly, that's just the tip of the iceberg.
I posted the fruits of my labor on SSRN today in a piece titled, Monopolies in Multidistrict Litigation. It's a 70+ page tomb, so I'll be covering specific aspects of it over the next few weeks in a series of blog posts. It's not only an indictment of current practices and procedures, but it offers myriad ways for judges to improve MDL practice. It even comes complete with handy pocket guides for judges, leadership application forms, and leadership applicant scoring sheets in the appendix.
For those of you who love data, there are several tables that may be of interest: Table 1: Provisions Benefitting Defendants Occurring within the Analyzed Settlements on p. 20; Table 2: Common-Benefit Fee Practices on p. 33; and Table 3: Common-Benefit Awards and Nonclass Claimant Recovery within the Data on p. 48.
Today's post simply introduces the paper, so here is the summary:
When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again. When asked, repeat players chalk it up to their experience and skill—no one can manage and negotiate as well as they can. Off the record, however, any plaintiff’s lawyer who’s been involved in multidistrict litigation will explain repeat players’ dominance with stories of backroom deals, infighting, and payoffs. Yet, when judges focus on cooperation and consensus in selecting leaders and then defer to those leaders in awarding common-benefit fees, they dampen open rivalry and enable repeat actors to mete out social and financial sanctions on challengers.
Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety should peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that permits lead lawyers to act, at times, like a cartel.
Basic economic principles demonstrate that noncompetitive markets can result in higher prices and lower outputs, and agency costs chronicle ways in which unmonitored agents’ self-interest can lead them astray. By analyzing the nonclass deals that repeat players design, this Article introduces new empirical evidence that multidistrict litigation is not immune to market or agency principles. It demonstrates that repeat players on both sides continually achieve their goals in tandem—defendants end massive suits and lead plaintiffs’ lawyers increase their common-benefit fees. But this exchange may result in lower payouts to plaintiffs, stricter evidentiary burdens in claims processing, or higher plaintiff-participation requirements in master settlements.
These circumstances warrant regulation, for both multidistrict litigation and class actions are critical to redressing corporate wrongdoing. Even though judges entrench and enable repeat players, they are integral to the solution. By tinkering with selection and compensation methods and instilling automatic remands after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. By tapping into the vibrant rivalries within the plaintiffs’ bar, judges can use dynamic market solutions to remap the existing regulatory landscape by invigorating competition and playing to attorneys’ strengths.
As always, your comments are welcome (the draft is still just that, a draft) - please email any comments or corrections to me eburch at uga.edu. More soon...
Thursday, March 31, 2016
This case involved a crash on an icy bridge in New Orleans during a rare ice storm in that part of the country. The plaintiffs suffered minor injuries.
The jury found the accident was caused by the ice storm, not the defect. It did, however, also find that the car was "unreasonably dangerous." With respect to that determination, Prof. Carl Tobias (Richmond) is quoted in the Bloomberg article saying: “The plaintiffs can claim a victory at least insofar as the jury made that finding, which is a critical finding. Every case will be on its own merits, but I think they can claim that as an important development.”