Monday, July 14, 2014

Linda Mullenix on Rethinking the American Class Action

Professor Linda Mullenix (U. Texas) has posted to SSRN her article, Ending Class Actions as We Know Them: Rethinking the American Class Action, Emory. L.J. (forthcoming 2014).  Here is the abstract:

Class actions have been a feature of the American litigation landscape for over 75 years. For most of this period, American-style class litigation was either unknown or resisted around the world. Notwithstanding this chilly reception abroad, American class litigation has always been a central feature of American procedural exceptionalism, nurtured on an idealized historical narrative of the class action device. Although this romantic narrative endures, the experience of the past twenty-five years illuminates a very different chronicle about class litigation. Thus, in the twenty-first century American class action litigation has evolved in ways that are significantly removed from its golden age. The transformation of class action litigation raises legitimate questions concerning the fairness and utility of this procedural mechanism, and whether class litigation actually accomplishes its stated goals and rationales. With the embrace of aggregative non-class settlements as a primary – if not preferred – modality for large scale dispute resolution, the time has come to question whether the American class action in its twenty-first century incarnation has become a disutilitarian artifact of an earlier time. This article explores the evolving dysfunction of the American class action and proposes a return to a more limited, cabined role for class litigation. In so doing, the article eschews alternative non-class aggregate settlement mechanisms that have come to dominate the litigation landscape. The article ultimately asks readers to envision a world without the twenty-first century American damage class action, limiting class procedure to injunctive remedies. In lieu of the damage class action, the article encourages more robust public regulatory enforcement for alleged violation of the laws.

July 14, 2014 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Coverage of GM's New Fund

Joe Nocera has a short opinion piece on Ken Feinberg and his work in progress - the GM claims fund. You can find the piece here.  The question for Feinberg is always - is this replicable?  The answer depends on the company's tolerance for risk and desire for atonement.  

The New York Times' Danielle Ivory also covered the new fund here, explaining how the fund works.

I also recommend the Valukas report on GM. My favorite part is his description of the "GM nod."  Everyone at a meeting nods their head to a plan, nobody actually does anything to move it forward.   

July 1, 2014 in Aggregate Litigation Procedures, Informal Aggregation, Lawyers, Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

Lawyers Seek MDL Status for Ignition-Switch Liability Suits Against GM

Plaintiffs' attorneys huddled in Chicago on Wednesday to strategize about where to ask the MDL Panel to send the GM ignition switch cases.   As usual, there are several things that will influence plaintffs' attorneys' pick.  

According to this morning's article in the WSJ, Elizabeth Cabraser called the litigation "a perfect storm for a class action."  Maybe.  But that will largely depend on which circuit and which judge hears the case, how GM's bankruptcy affects the pending claims, and whether attorneys forgo personal injury claims (they will likely be excluded in the class definition) to pursue product liability and economic injuries.  

Choice of procedural law, like how to apply Rule 23, can vary.  Under Chan v. Korean Airlines, Ltd. (D.C. Cir. 1989), the Van Dusen doctrine, which holds that transferee courts must apply the choice of law interpretation of the transferor circuit, may not apply to 1407 transfers.  Rather, when it comes to procedural and other federal law matters, Korean Airlines suggests that transferee courts are obligated to follow their own interpretation of the relevant law.  Several circuits follow this rationale including the Second, Eighth, Ninth, and Eleventh.  Other circuits, including most notably, the Seventh, have held that a transferee court should use transferor court's interpretation of federal law.

 According to Bloomberg, several plaintiffs' attorneys are pushing for a California venue before Judge James Selna, who is currently handling the Toyota acceleration MDL.  This strategy makes sense on several fronts.  The Ninth Circuit, which originally upheld (in part) the certification in Dukes v. Wal-Mart Stores, Inc., has shown a willingness to resolve aggregate cases through class actions.  And given that courts in the Ninth Circuit apply their own procedural law where circuit splits are concerned, this could further help plaintiffs.  Finally, Judge Selna, who certified an economic loss settlement class action in the Toyota litigation, is a logical choice.

But other plaintiffs' attorneys (and of couse GM) have other ideas about where the MDL should land.  Bloomberg reports:

Other plaintiffs want the cases to be heard in Chicago, Miami or Corpus Christi,Texas, where they have sued. GM wants the cases consolidated in the federal court in Manhattan, about a mile from where a prior incarnation of the company filed for bankruptcy in 2009. Company lawyers say proximity to the bankruptcy court trumps Selna’s experience.

While the Panel considers the forum requests by the parties, it is in no way limited to those venues.  There are several factors that it typically cites in favor of forum selection such as the location of discovery materials, convenience of the witnesses, location of grand jury proceedings, possibility of coordination with related state-court proceedings, where the majority of cases are located, knowledge of the transferee judge, and the willingness and motivation of a particular judge to handle an MDL docket.  Of these factors, the transferee judge is by far the most important.  The Panel tends to look for judges who have handled MDLs successfully in the past.  And, for better or worse, "successful" means quick settlement (see here, p. 11-12 for more).

The Judicial Panel on Multidistrict Litigaiton is comprised of seven judges from around the country. Judge David Proctor is the Panel's newest edition and was added just this year to replace Judge Paul Barbadoro.

For more on the process that will--and should--unfold once a transferee judge is appointed and how those judges should go about appointing lead lawyers, see here.

 

 

May 29, 2014 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Procedure, Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 28, 2014

Tidmarsh on Trial by Statistics and Auctioning Class Settlements

As I've slowly emerged from my grading slump, I've caught up on a number of interesting articles dealing with class actions, two of which are authored by Professor Jay Tidmarsh at Notre Dame.  In case you missed them, too, I thought I'd mention them here.  

The first is a new take on auctions.  Auctions have been proposed and used to pick class counsel, but Tidmarsh proposes using them to increase settlement prices.  Once the parties reach a settlement, the court puts the class's claims up for auction.  If an entity--presumably a corporation, though perhaps a third-party financier?--outbids the settlement price, that entity purchases the class's rights to sue and can continue to litigate against the defendant.  Here's the idea in Tidmarsh's own words in his SSRN abstract

Although they promise better deterrence at a lower cost, class actions are infected with problems that can keep them from delivering on this promise. One of these problems occurs when the agents for the class (the class representative and class counsel) advance their own interests at the expense of the class. Controlling agency cost, which often manifests itself at the time of settlement, has been the impetus behind a number of class-action reform proposals.

This Article develops a proposal that, in conjunction with reforms in fee structure and opt-out rights, controls agency costs at the time of settlement. The idea is to allow the court, once a settlement has been achieved, to put the class’s claims up for auction, with the settlement acting as reserve price. An entity that outbids the settlement becomes owner of the class’s claims, and may continue to pursue the case against the defendant. A successful auction results in more compensation for the class. On the other hand, if no bids are received, the court has evidence that the settlement was fair. The prospect of a settlement auction also deters class counsel and the defendant from negotiating a sweetheart deal that sells out the class.

The Article works through a series of theoretical and practical issues of settlement auction, including the standards that a court should use to evaluate bids, the limitations on who may bid, and the ways to encourage the emergence of an auction market.

Tidmarsh's second article returns to a long-espoused notion: trial by statistics (or, as Justice Scalia used in the pejorative sense in Wal-Mart Stores, Inc. v. Dukes, "Trial by Statistics.").  Here's the abstract, which explains the idea concisely:

“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible.

After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a court conducts trials in a random sample of cases and averages the results, as in trial by statistics. It then presumptively applies the average award to all other cases, but, unlike trial by statistics, any party can reject the presumptive award in favor of individual trial. The Article describes the circumstances in which parties have an incentive to contest the presumption, and explores a series of real-world issues raised by this approach, including problems of outlier verdicts, strategic behavior by parties, and the parties’ risk preferences. It proposes ways to minimize these issues, including a requirement that the party who reject a presumptive judgment must pay both sides’ costs and attorneys’ fees at trial.

The Article concludes by showing that this approach is consonant with important procedural values such as efficiency, the accurate enforcement of individual rights, dignity, and autonomy.
Although, as Professor Tidmarsh notes, Justice Scalia frowned upon using statistics to resolve aggregated claims in federal court, the opinion didn't say that using statistics would violate federal constitutional due process.  That seems to leave the door open for the legislature to act and authorize statistics were it so inclined.  
 
Happy reading!

May 28, 2014 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Friday, May 16, 2014

Judging Multidistrict Litigation

I posted a new article to SSRN this morning that's been a labor of love for well over a year now.  I'm excited about this new piece for a few reasons.  

First, it debuts an original data set of all lead lawyers appointed in 72 product liability and sales practices MDLs that were pending as of May 14, 2013.  As such, it's the only paper (that I know of) that includes empirical evidence on plaintiffs-side repeat players appointed to leadership positions.  (Yes, it includes a list of some of the most entrenched repeat lawyers and law firms as an appendix.)  (If this is of interest, have a look at Margaret Williams, Emery Lee, and Catherine Borden's recently published paper in the Journal of Tort Law titled Repeat Players in Federal Multidistrict Litigation, which looks at all plaintiffs' attorneys in MDLs using social network analysis.) 

I also explain why appointing a leadership group comprised of predominately repeat players can cause inadequate representation problems.  For example, repeat players playing the long game have rational, economic incentives to curry favor with one another, protect their reputations, and develop reciprocal relationships to form funding coalitions and receive client referrals.  As such, extra-legal, interpersonal, and business concerns may govern their interactions and trump their agency obligations to uniquely situated clients who could threaten to bust a multi-million dollar deal.  Non-conforming lawyers may be ostracized and informally sanctioned, which promotes cooperation, but deters dissent and vigorous representation.  Over time, expressing contrary opinions could brand the dissenting lawyer a defector, which could decrease lucrative leadership opportunities.  (Other reasons abound, which I explain on pages 25-27 of the paper.) 

Second, it provides some much needed guidance for transferee judges.  Although the Manual for Complex Litigation remains the go-to guide for transferee judges, it hasn't been updated in 10 years.  So much has changed since the fourth edition was published in 2004.  Accordingly, in "Judging Multidistrict Litigation," I suggest best practices for appointing and compensating lead lawyers.  Judges can compensate lead lawyers on a coherent and more predictable basis by distilling current theories down to their common denominator: quantum meruit.  Quantum-meruit awards would align fees with other attorney-fee decisions and compensate leaders based on the value they actually add.  

Third, as anyone familiar with the area knows, settlement review in nonclass litigation is controversial at best.  After judges expressly deny class certification they then harken back to Rule 23 and their "inherent equitable authority" to comment on settlements.  So, employing a quantum-meruit theory for awarding lead lawyers' attorneys' fees would give judges a legitimate private-law basis for scrutinizing settlements.  Because courts must evaluate the case's success to determine how much compensation is merited, it could likewise help stymie a trend toward self-dealing where repeat players insert fee provisions into master settlements and require plaintiffs and their attorneys to "consent" to fee increases to obtain settlement awards.

The article is forthcoming in N.Y.U. Law Review in April of 2015, so I still have a bit of time to tinker with it and welcome comments in the interim (eburch at uga.edu).  In the meantime, here's the formal SSRN abstract.

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle. 

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation. Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients. Systemic pathologies can result: dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players trading in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.

Current judicial practices feed these pathologies. First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players. But most conflicts do not arise until discovery and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate. Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers. The erratic fee awards that result lack coherent limits. So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with the defendant to embed fee provisions in global settlements—a well recognized form of self-dealing. Yet, when those settlements ignite concern, judges lack the formal tools to review them. 

These pathologies need not persist. Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation. Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits. Finally, because quantum meruit demands that judges assess the benefit lead lawyers’ conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful carrot: attorneys’ fees.

May 16, 2014 in Aggregate Litigation Procedures, Class Actions, Ethics, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement, Vioxx, Zyprexa | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Stanford Symposium on the BP Oil Spill Litigation

The Stanford Journal of Complex Litigation is hosting a symposium, "A Complicated Cleanup: The BP Oil Spill Litigation," on Thursday, May 8, 2014 and Friday, May 9, 2014, at Stanford Law School.  The keynote address speaker is Kenneth Feinberg, the Gulf Coast Claims Administrator.  Other symposium speakers will include Elizabeth Cabraser of Lieff Cabraser, Professor Francis McGovern (Duke), Professor Linda Mullenix (Texas), Professor Maya Stenitz (Iowa), and myself.  Panel moderators will include Stanford Law Professors Nora Engstrom, Deborah Hensler, and Janet Alexander. 

BGS

April 17, 2014 in Aggregate Litigation Procedures, Conferences, Environmental Torts, Lawyers, Mass Disasters, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Sunday, March 23, 2014

2014 Vancouver Summer Law Program and Global Tort Litigation Course

I'm serving as Co-Director of Southwestern Law School's 2014 Vancouver Summer Law Program, which is offered in collaboration with the University of British Columbia Faculty of Law and the International Centre for Criminal Law Reform and Criminal Justice Policy.  All classes will take place at the University of British Columbia's new Allard Hall, which was completed in 2011 at a cost of $56 million.  On-campus housing at St. Andrew's Hall next to the law school may also be arranged through the summer law program.  The program will run from May 25 to June 25, 2014.  Here is the brochure.  

One of the courses offered will be a course on Global Tort Litigation, which I'll be co-teaching with Professor Jasminka Kalajdzic of the University of Windsor.   Other courses include comparative criminal procedure, international environmental law, and comparative sexual orientation law; students may elect to take two courses for four units, or three courses for six units.  

We welcome applications from students in good standing at an ABA-approved or state-accredited American law school or accredited Canadian law school.  Special reduced tuition rates are available for Canadian law students.  Come join us in beautiful Vancouver, Canada!

BGS

March 23, 2014 in Aggregate Litigation Procedures, Environmental Torts, Foreign, Procedure, Products Liability, Punitive Damages, Travel | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 14, 2014

What Happened to the BP Settlement?

The Fifth Circuit issued a decision on January 10th affirming the class action settlement in the In re Deepwater Horizon litigation.  You can find the opinion here

This opinion is the result of objections to the settlement, but BP intervened to argue that there was an Article III standing problem with the way the settlement agreement had been interpreted.  That interpretation was very generous to claimants in its interpretation of how they must prove economic loss to collect.  The problem BP faces now is that it didn't cap the settlement amount in the agreement (yes, you read that right, and furthermore this was a selling point of the settlement).  As a result, BP has a classic "if you build it, they will come" problem and is trying to upend the settlement as a result. At the moment, the Fifth Circuit in a separate opinion by a separate panel has stayed the settlement adminsitration as it considers the interpretation of the agreement.  In that separate opinion, the panel (which couln't quite agree) indicated that the agreement interpretation may be too generous and remanded for reconsideration. You can find that opinion here

In the opinion issued on Friday, this panel indicated the interpretation may be just fine, and sent a strong hint to the District Judge about what he should do. 

So here's the question, why did BP agree to these terms?  It was an open ended settlement with a broad geographic reach and a flexible standard for compensation - that was clear from the start.   I'm sure BP's excellent counsel knew this was a risk.   So what happened?  Were the economists predictions dead wrong?  Is this just a case of buyer's remorse? 

The WSJ has some coverage, here.

ADL 

January 14, 2014 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 27, 2013

Jasminka Kalajdzic on Class Actions and Settlement Culture in Canada

Professor Jasminka Kalajdzic (Univ. of Windsor Faculty of Law) has posted to SSRN her book chapter, Class Actions and Settlement Culture in Canada.  Here is the abstract:

Mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system from mass claims comes at a price; how much rough justice are we prepared to accept?

The difficulty of balancing these competing interests is ubiquitous. Canadian class action settlement practice is no exception. In this book chapter, I first explore the realities of this form of litigation, and to some extent debunk the myth that class actions inevitably result in large monetary settlements. I then turn to a brief discussion of the incentives and disincentives to settle large claims, for both plaintiffs’ lawyers and defendants. In Part III, I describe and critique the judicial framework for the approval of proposed settlements. I finish by pointing out the lack of alternatives to class proceedings and conclude that, though not perfect, the Canadian class action settlement system stands as a model for consideration by other jurisdictions wrestling with the problem of mass disputes.

The chapter is part of the forthcoming book, Resolving Mass Disputes: ADR and Settlement of Mass Claims (Edward Elgar 2013), edited by Christopher Hodges and Astrid Stadler.

BGS

November 27, 2013 in Aggregate Litigation Procedures, Class Actions, Foreign, Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, November 7, 2013

Supreme Court Hears Oral Argument on Whether CAFA Permits Removal of AG Actions

Yesterday, the Supreme Court heard oral arguments on whether parens patriae actions brought by state attorneys general are removable as mass actions under the Class Action Fairness Act.  (Mississippi ex rel. Hood v. AU Optronics Corp., U.S., No. 12-1036)  The lower courts have split on the issue, with the Fifth Circuit holding that such actions are removable when the citizens are the "real parties in interest," and the Fourth, Seventh, and Ninth Circuits reaching the opposite conclusion.  The Fifth Circuit, in Louisiana ex rel. Caldwell v. Allstate Insurance Co., held that because the attorney general sought damages on behalf of insurance policy holders, the policy holders were the real parties in interest to that relief.  But other courts, even within the Fifth Circuit, have distinguished that reasoning.  Judge Fallon, for example, in some of the Vioxx cases, held that the Kentucky attorney general's action against Merck was not removable as a class action.  He distinguished Caldwell, reasoning that it was decided under CAFA's mass action provision and the citizens of Kentucky were not the real parties in interest.  Instead, the Kentucky attorney general was requesting injunctive relief and civil penalties, not damages as was the case in Caldwell.

The issue is an important one as the standard for certifying a class action has become more rigorous.  Many commentators have argued that state attorneys general should step into the breach to provide relief and deterrence when actions aren't certifiable as class actions.  Yet, questions remain about this approach.  Specifically, most parens patriae statutes do not contain the same protections as Rule 23 does with regard to adequate representation.  Plus, courts are often unsure how to evaluate issue or claim preclusion when a private citizen sues in the wake of a parens patriae action.

For the interested reader, yesterday's BNA Class Action Litigation Report had an article by Jessie Kokrda Kamens about the oral argument.  Her take was that even though some justices questioned state attorneys generals' motives in bringing parens patriae actions, they weren't ready to declare them removable under CAFA.

ECB

November 7, 2013 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, September 5, 2013

Greg Reilly on Aggregating Defendants

Professor Greg Reilly (Lecturer in Law & Bigelow Fellow, Chicago) has posted to SSRN his article, Aggregating Defendants.  Here is the abstract:

No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and BitTorrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly-situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation — avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party’s inherent ability to spread costs. If so, why is there such resistance to defendant aggregation? 

Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants’ self-interest. This may be true in certain types of cases, particularly where the plaintiff’s claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants’ defenses would not be viable individually. These latter cases are explained, if at all, based on cognitive limitations. In any event, defendant self-interest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: inter-district related case coordination.

BGS

September 5, 2013 in Aggregate Litigation Procedures, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Supreme Court Petition in Engle Progeny Case

Am Law Litigation Daily has an article on the tobacco companies' filing another certiorari petition in an Engle progeny case: Tobacco Companies Seek Supreme Court Cert in Engle Case, by Ross Todd.  Here's their petition for a writ of certiorari.  The appellate team includes Greg Katsas (Jones Day), Paul Clement (Bancroft), and Miguel Estrada (Gibson Dunn).

I've previously addressed issue preclusion, verdict variability, and problems with the Engle case in my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013 (2007).

BGS

August 19, 2013 in Aggregate Litigation Procedures, Class Actions, Procedure, Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Richard Zitrin on Regulating the Behavior of Lawyers in Mass Individual Representations

Professor Richard Zitrin (UC Hastings) has posted to SSRN his article, Regulating the Behavior of Lawyers in Mass Individual Representations: A Call for Reform, 3 St. Mary’s J. on Legal Malpractice & Ethics 86 (2013).  Here's the abstract:

Cases in which lawyers represent large numbers of individual plaintiffs are increasingly common. While these cases have some of the indicia of class actions, they are not class actions, usually because there are no common damages, but rather individual representations on a mass scale. Current ethics rules do not provide adequate guidance for even the most ethical lawyers. The absence of sufficiently flexible, practical ethical rules has become an open invitation for less-ethical attorneys to abuse, often severely, the mass-representation framework by abrogating individual clients’ rights. These problems can be abated if the ethics rules offered better practical solutions to the mass-representation problem. It is necessary to reform the current rules, but only with a solution that is both practical and attainable, and with changes that maintain the core ethical and fiduciary duties owed by lawyers to their individual clients, including loyalty, candor, and independent professional advice.

BGS

August 19, 2013 in Aggregate Litigation Procedures, Ethics, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 22, 2013

IAPL Moscow Conference Papers

The presentatons from the 2012 Moscow meeting of the International Association of Procedural Law have been posted to SSRN as a combined UC Irvine Law research paper entitled, Civil Procedure in Cross-Cultural Dialogue: Eurasia Context.  Among the many professors whose papers are gathered are Carrie Menkel-Meadow (UC Irvine), Richard Marcus (UC Hastings), Stefaan Voet (Univ. of Ghent), and Jasminka Kalajdzic (Univ. of WIndsor).  Here's the abstract:

The Idea of the book is to discuss the evolution of civil procedure in different societies, not only in the well-known civil or common law systems, but also in different countries of Eurasia, Asia, etc. Civil procedure in Europe and North America is a subject of enormous scientific and practical importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main principles? Culture is one of the main factors that makes civil procedure of these countries different. Therefore it is necessary to discuss the main links between different systems of civil procedure. The discussion was held on the basis of National reports from 24 countries.

BGS

July 22, 2013 in Aggregate Litigation Procedures, Class Actions, Foreign, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Sunday, July 21, 2013

Khoury, Menard & Redko on the Role of Canadian Private Law in the Control of Risks Associated with Tobacco Smoking

Professors Lara Khoury and Marie-Eve Couture-Ménard (McGill), and Olga Redko (LL.B./B.C.L. Candidate, McGill) have posted to SSRN their article, The Role of Private Law in the Control of Risks Associated with Tobacco Smoking: The Canadian Experience, 39 Am. J. L., Med. & Ethics 442 (2013).  Here's the abstract:

Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, this text tackles Canada’s recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada’s provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. The authors address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.

BGS

July 21, 2013 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship, Procedure, Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Distributive Justice in Action

There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."

The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface.  How should people with similar injuries be compensated when they have different life circumstances?  Should weathier people receive less (or more) compensation than poorer people with similar injuries?  Should emotional harm be compensated?  What about fraud, the flip side of desert?  These questions arise in ordinary tort litigation and in mass tort litigation as well.  What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law.  But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries. 

Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss.  There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be.  These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life.  Should these funds track the tort system?  The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities.  The tort system presently often reinforces existing social inequalities in compensation, should it?  Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well? 

Also notable, the article points out that the number of funds has accelerated in the 21st century.  According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.  

ADL

May 15, 2013 in Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Distributive Justice in Action

There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."

The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface.  How should people with similar injuries be compensated when they have different life circumstances?  Should weathier people receive less (or more) compensation than poorer people with similar injuries?  Should emotional harm be compensated?  What about fraud, the flip side of desert?  These questions arise in ordinary tort litigation and in mass tort litigation as well.  What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law.  But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries. 

Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss.  There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be.  These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life.  Should these funds track the tort system?  The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities.  The tort system presently often reinforces existing social inequalities in compensation, should it?  Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well? 

Also notable, the article points out that the number of funds has accelerated in the 21st century.  According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.  

ADL

May 15, 2013 in Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 17, 2013

Adequately Representing Groups

As we as scholars and practictioners begin to explore class action alternatives, one problem continues to arise: when to preclude subsesequent litigation.  Of course, this problem arose early on in the class action's history, most notably with (b)(2) civil rights cases where some class members disagreed fundamentally over the remedy requested.  But the problem has persisted in multidistrict litigation and, perhaps most notably, in parens patriae actions. I explore this problem and propose a solution in my latest piece, titled Adequately Representing Groups.  Here's the SSRN abstract, which gives a brief summary of the proposed solution:

Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? The answer to this question matters immensely since adequate representation is critical to precluding relitigation and achieving finality.

This Article suggests that courts should differentiate between inadequate representation claims based on the underlying right at stake. When the underlying right arises from an aggregate harm — a harm that affects a group of people equally and collectively — and demands an indivisible remedy, courts should tolerate greater conflicts among group members when evaluating a subsequent claim of inadequate representation. Because the harm is aggregate and the remedy is indivisible (typically declaratory or injunctive relief), if one group member receives the remedy, then they all receive the remedy. The litigation operates to group members’ benefit or detriment equally, so if one group member is inadequately represented, they are all inadequately represented. Consequently, a subsequent litigant can successfully avoid preclusion only where the lawyers or the named representatives acted contrary to the group’s best interests or attempted to represent an overinclusive, noncohesive group where some members required unique relief that the representative had no selfish reason to pursue.

Conversely, when plaintiffs suffer individual injuries at the same defendant’s hands and unite their claims for economic or efficiency reasons, that aggregation does not convert their individual injuries into an aggregate harm. When counsel fails to fairly represent her client in vindicating that harm, inadequate representation is an individual injury. In multidistrict litigation and Rule 23(b)(3) class actions, which typically include individuals litigating their individual harms together for systematic and litigant efficiency, courts should look for “structural conflicts” between the claimants themselves as well as between the representatives and the claimants. This means that both initially and on a collateral attack, courts should accept fewer conflicts than in cases involving aggregate rights. Accordingly, judges should assess whether there are reasons the lawyers “might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-à-vis the lawyers themselves.”

ECB

April 17, 2013 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 29, 2013

Zachary Savage on Implementing Issue Preclusion in Mass Tort Litigation Through Bellwether Trials

Zachary Savage (J.D. Candidate, NYU), has posted to SSRN his student note, Scaling Up: Implementing Issue Preclusion in Mass Tort Litigation Through Bellwether Trials, N.Y.U. L. Rev. (forthcoming 2013).  Here's the abstract:

The civil litigation system aims to resolve disputes in an efficient, centralized, and final manner. In the context of mass tort litigation, one technique courts often use to achieve these goals is what I call “scaling up”: holding individual trials, and then applying results from these trials to similarly situated individuals. Scaling up, however, presents two difficulties. First, the technique risks compromising defendants’ Due Process rights by creating impermissible settlement pressure. Second, scaling up requires the initial court to structure the litigation so that it may serve as a template for follow-on proceedings; where this is not done, attempting to graft the results of one proceeding onto the remaining group of similarly situated individuals may simply lead to more protracted litigation.

Yet these difficulties are not inherent to the technique; in fact, courts can scale up in a way that avoids these problems. In order to mitigate the Due Process problem, courts should not apply the results of individual trials to subsequent trials involving similar claims until a substantial number of trials have been completed, and until it has become clear that any verdicts unfavorable to defendants are not flukes or outliers. And to ensure that scaling up does not simply lead to more protracted litigation, the initial trials should be structured so as to maximize the likelihood that individuals in follow-on litigation can invoke the findings under the issue preclusion doctrine of Parklane Hosiery v. Shore. The American Law Institute has made a proposal with these considerations in mind with respect to issue classes. This Note argues that a similar approach should be taken in the Multidistrict Litigation (MDL) process, where most mass tort litigation occurs today. This approach would be particularly useful if applied to one device that is being used with increasing frequency in the MDL process: the bellwether trial.

BGS

March 29, 2013 in Aggregate Litigation Procedures, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 20, 2013

Widener Law Symposium: Perspectives on Mass Tort Litigation

Widener University School of Law and the Widener Law Journal are presenting a day-long symposium, Perspectives on Mass Tort Litigation, on Tuesday, April 16, 2013 in Harrisburg, Pennsylvania.  The Honorable Eduardo Robreno of the Eastern District of Pennsylvania will present a luncheon address, Federal Asbestos Litigation: Black Hole or New Paradigm?  Other participants include Hon. Thurbert Baker (McKenna Long); Mark Behrens (Shook Hardy); John Beisner (Skadden); S. Todd Brown (SUNY Buffalo); Scott Cooper (Schmidt Kramer); Amaris Elliot-Engel (Legal Intelligencer); Michael Green (Wake Forest); Deborah Hensler (Stanford); Mary Kate Kearney (Widener); Randy Lee (Widener); Bruce Mattock (Goldberg Persky); Tobias Millrood (Pogust Braslow); Linda Mullenix (Texas); Christopher Robinette (Widener); Susan Raeker-Jordan (Widener); Sheila Scheuerman (Charleston); Victor Schwartz (Shook Hardy); William Shelley (Gordon & Rees); Aaron Twerski (Brooklyn); Nicholas Vari (K&L Gates); and Nancy Winkler (Eisenberg Rothweiler).  I will also participate via Skype videoconference.  Here's the brochure:  Download Widener 2013 MTL Symposiu Brochure

BGS

March 20, 2013 in Aggregate Litigation Procedures, Asbestos, Conferences, Ethics, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)