Monday, January 30, 2012

More on the Second Circuit's Refusal to Block Enforcement of Ecuadoran Judgment

Sunday, January 29, 2012

PIP Breast Implants and Mass Torts in Europe

According to this article from CNN, French authorities have arrested Jean-Claude Mas, the founder of Poly Implant Protheses (PIP), in connection with alleged manslaughter and involuntary harm to a woman who died from cancer and had PIP breast implants.  The article notes that 300,000 women in 65 countries received PIP breast implants, and that questions have been raised about the use of non-medical-grade silicon and PIP went bankrupt in late 2010.  

The PIP breast-implants controversy may present an opportunity to observe non-U.S.-style mechanisms for what here would likely have been a mass tort litigation.  Since the PIP breast implants were not permitted to be sold in the U.S., litigation may be concentrated abroad.  In general, my sense is that the European approach is more reliant on criminal law than tort for deterrence, compensatory damages are limited because of the comparatively extensive governmental social insurance, punitive damages are unavailable, and class actions are traditionally not embraced (though class actions appear to be on the rise globally -- see, e.g., the Stanford Global Class Actions Exchange).

Interestingly, according to the article, one French woman who received PIP breast implants said, "Too bad we do not have a justice system like they do in the United States which allows the accumulation of penalties...because the small punishment he will receive for what he did to 300,000 to 400,000 women, is not much compared to what we have suffered because of him."

(H/t to my Mass Tort Litigation student Abigail Anderson for sending me the CNN story.)

BGS

January 29, 2012 in Aggregate Litigation Procedures, FDA, Foreign, Procedure, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 24, 2012

Engle's Progeny Go to the Supreme Court

The litigation that arose of out the Engle class action ruling (Engle v. Ligett Group, 945 So.2d 1245 (Fla. 2006) might be coming to the Supreme Court.  As mentioned in my previous post, petitions for cert have been filed by Philip Morris and others.  In Engle the Florida Supreme Court held that the factual findings reached in an issue class class action can preclude the tobacco company from raising certain issues in subsequent litigation against class members.  Now the individual cases that were part of that class action are being litigated and Philip Morris claims that the use of issue preclusion here violates their due process rights.

So far there is a petition for cert (2011 WL 6330473), Brief of the Product Liability Advisory Council, Inc. as Amicus Curiae in Support of Petitioners (2012 WL 135308), Brief of The Chamber of Commerce of The United States of America as Amicus Curiae in Support of Petitioners (2012 WL 167004) and Brief of Professors Aaron Twerski and James A. Henderson Jr. as Amici Curiae in Support of Petitioners (2012 WL 167005). 

ADL

     

January 24, 2012 in Aggregate Litigation Procedures, Class Actions | Permalink | Comments (0) | TrackBack (0)

Friday, January 20, 2012

California Lawsuit Reform and the Need for Court Funding

Tom Scott, the Executive Director of California Citizens Against Lawsuit Abuse, has posted on Fox&Hounds a 2012 wishlist for legal reform.  While there are many proposed reforms helpful to business, I was struck by one not usually associated with business desires or law reform:

6. Stop cutting the funding of the California courts. Our court system is still reeling from cuts last year, and more cuts would only reduce access to the courts even more.

I am heartened to see that even those who are "fighting against lawsuit abuse" understand that adequate court funding is essential if suits are to be promptly adjudicated -- and found either meritorious and tried, or found unmeritorious and dismissed.  Both pro-plaintiff and pro-business groups should be able to come together to advocate for court funding in a time of shrinking governmental budgets.  And those who practice in mass tort litigation should be especially vocal, in light of the heavy demands such litigation places on state and federal courts.  Moreover, as the election season approaches and disagreements multiply across the political spectrum, liberals and conservatives might remind themselves that they agree on government's core responsibility in providing a functioning court system for dispute resolution.

BGS 

January 20, 2012 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Procedure, Regulation | Permalink | Comments (0) | TrackBack (0)

Monday, January 16, 2012

Southwestern Law School Symposium on Transnational Litigation and Civil Procedure

Below is the announcement from Southwestern Law School, and here is the brochure.

BGS

***

SW_Law_Our Courts and The World Symposium

Our Courts and the World: Transnational Litigation and Civil Procedure
Southwestern Law School
February, 3, 2012
 
On Friday, February 3, 2012, Southwestern Law School in Los Angeles, California and the Southwestern Journal of International Law are hosting a symposium entitled, Our Courts and the World: Transnational Litigation and Civil Procedure.   The symposium is co-sponsored by the American Society of International Law, the Junior International Law Scholars Association (JILSA), the Los Angeles County Bar Association -  International Law Section, and the State Bar of California - International Law Section.
 
This one-day symposium will bring together leading scholars from Canada and the United States to discuss the procedural issues that arise in transnational civil litigation cases. It will also assess how receptive courts are to transnational litigation and explore issues related to transnational class actions. The proceedings and papers from this symposium will be published in the Southwestern Journal of International Law.
 
What:
Southwestern Journal of International Law presents
When:
Friday, February 3, 2012, 9:00 a.m. – 5:15 p.m.
Where:
Southwestern Law School, Los Angeles, California
 
Panelists include (in alphabetical order):
·          Samuel P. Baumgartner, Professor of Law, University of Akron School of Law
·           Vaughan Black, Professor of Law, Dalhousie University Schulich School of Law
·           Gary B. Born, Partner, WilmerHale, Lecturer on Law, Harvard Law School
·           Stephen B. Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School
·           Montré D. Carodine, Associate Professor of Law, University of Alabama School of Law
·           Donald Earl Childress III, Associate Professor of Law, Pepperdine University School of Law
·           Paul R. Dubinsky, Associate Professor of Law, Wayne State University Law School
·           Allan Ides, Christopher N. May Professor of Law, Loyola Law School, Los Angeles
·           Thomas Orin Main, Professor of Law, University of the Pacific, McGeorge School of Law
·           Erin O’Hara O’Connor, Professor of Law and Director of Graduate Studies, Law & Economics PhD Program, Vanderbilt Law School
·           Cassandra Burke Robertson, Associate Professor, Case Western Reserve University School of Law
·           Linda J. Silberman, Martin Lipton Professor of Law, New York University School of Law
·           Linda Sandstrom Simard, Professor of Law, Suffolk University Law School
·           Adam N. Steinman, Professor of Law and Michael J. Zimmer Fellow, Seton Hall University School of Law
·           Janet Walker, Professor of Law, Osgoode Hall Law School      
·           Rhonda Wasserman, Professor of Law, University of Pittsburgh School of Law
                                                                                               
Moderators include:
·           William E. Thomson, Partners, Gibson, Dunn & Crutcher LLP
·           James H. Broderick, Jr., Partner, Squire, Sanders & Dempsey LLP
·           Marcus S. Quintanilla, Counsel, O’Melveny & Myers LLP
·           Ray D. Weston Jr., Vice President and General Counsel, Taco Bell Corp.
 
Symposium Co-Chairs:
  • Austen Parrish, Professor of Law and Vice Dean, Southwestern Law School
  • Christopher A. Whytock, Acting Professor of Law and Political Science, University of California, Irvine

 

January 16, 2012 in Aggregate Litigation Procedures, Class Actions, Conferences, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Saturday, January 14, 2012

BP, the Gulf Coast Claims Fund, and MDL Plaintiffs' Lawyers

All that in the recent interesting op-ed from New York Times business columnist Joe Nocera -- BP Makes Amends.

BGS

January 14, 2012 in Aggregate Litigation Procedures, Environmental Torts, Informal Aggregation, Lawyers, Mass Disasters, Procedure, Punitive Damages, Settlement | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 30, 2011

Vanderbilt Law Review Symposium on the BP Oil Spill

You can access the article from their website: www.vanderbiltlawreview.org

Or read a summary of the pieces on Concurring Opinions.

ADL

November 30, 2011 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, November 27, 2011

Fifth Annual Conference on the Globalization of Class Actions and Mass Litigation at The Hague

The Fifth Annual Conference on the Globalization of Class Actions and Mass Litigation is being hosted by Tilburg University and will be held on December 8-9, 2011 in The Hague, Netherlands.  The conference is being organized by Professors Deborah Hensler (Stanford Law School), Christopher Hodges (Oxford Centre for Socio-Legal Studies and Erasmus University), and Ianika Tzankova (Tilburg University).  Master claim administrator Kenneth Feinberg is delivering the keynote speech.

BGS  

November 27, 2011 in Aggregate Litigation Procedures, Class Actions, Conferences, Ethics, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, October 20, 2011

Levaquin Bellwether Trials Update

BNA reports that a set of cases (one trial, two plaintiffs) reached a defense verdict in the Levaquin pharma litigation.  Beare v. Johnson & Johnson, N.J. Super. Ct. Law Div., No. ATL-L-196-10, verdict 10/14/11; Gaffney v. Johnson & Johnson, N.J. Super. Ct. Law Div., No. ATL-L-4551-09, verdict 10/14/11).  The cases are consolidated before Judge Carol Higbee of New Jersey, who also oversaw the New Jersey Vioxx litigation.

The allegations are the the manufacturer of the antibiotic did not provide adequate warnings of its potential to cause tendon injuries. There are six more bellwether cases to go. According to BNA there are approximately 1,900 Levaquin cases before Judge Higbee.

I don't have information about how the bellwether cases were picked or why eight is the number.  For an analysis of how judges can do a more rigorous job of using bellwether trials to promote case resolution and equality among litigants, see my latest paper: The Case for "Trial by Formula." 

ADL

October 20, 2011 in Aggregate Litigation Procedures, Informal Aggregation, Pharmaceuticals - Misc., Products Liability, Vioxx | Permalink | Comments (1) | TrackBack (0)

Monday, October 10, 2011

Update on Bellwether Trials in Toyota Acceleration Cases

Today's Wall Street Journal Law Blog has an update on the state and federal Toyota acceleration cases.  California Superior Court Judge Anthony Mohr has penciled in bellwether trials to begin in April of 2012, but Judge Selna, who is presiding over the federal MDL, estimates that bellwether trials will not begin there until February 2013. Likewise, plaintiffs' attorneys litigating before Judge Robert Schaffer in Texas suspect that they too will not try a case until 2013.

ECB

October 10, 2011 in Aggregate Litigation Procedures, Products Liability, Trial | Permalink | Comments (0) | TrackBack (0)

Sunday, October 2, 2011

All or Nothing Aggregate Settlements in Trouble

(With apologies to HME for stealing his title)

The Second Circuit last week (just in time for the Jewish New Year) decided Johnsons v. Nextel Communications, Inc., -- F.3d -- , 2011 WL 4436263 (2d Cir. Sept. 26, 2011) .  You can find the opinion here.  That case involved an aggregate settlement with all kinds of schenanigans that our own Howard Erichson described in his article "The Trouble With All or Nothing Settlements." (download it while its hot! ...as they say....)

The Second Circuit allowed the clients to sue the lawyers on a broad breach of fiduciary duty theory.  The clients may also sue the defendants on an "aiding and abetting" theory.

I learned from this opinion from Adam Zimmerman (St. John's) who has also blogged about it on the ADR Prof Blog

ADL

October 2, 2011 in Aggregate Litigation Procedures, Ethics | Permalink | Comments (0) | TrackBack (0)

Thursday, September 22, 2011

Sending Mass Torts to State Court

I just read a very interesting student note from 1987 suggesting that in mass tort cases the JPMDL should be permitted to send mass tort cases to state court.  George T. Conway III,* The Consolidation of Multistate Litigation in State Courts, 96 Yale L. J. 1099, 1101 (1987).  The rule of thumb could be that the state with the applicable law would be the target jurisdiction.  Of course this would take new Congressional action to implement, but what an idea! 

*The author is now a litigation partner at Wachtell - I wonder what he would say of his student note with many years of experience under his belt?  If you're reading this, leave a comment or drop me an email. 

ADL

September 22, 2011 in Aggregate Litigation Procedures, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, September 19, 2011

Oil Spill Trial To Begin

District Court Judge Carl Barbier (EDLa) has issued a case managment order for the upcoming trial arising out of the BP Horizon Deep Water Oil Spill.  You can find the order here: Pretrial Order #41.  According to BNA, the MDL has more than 500 lawsuits arising out of the spill.

ADL

September 19, 2011 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Monday, August 29, 2011

Grabill on Judicial Review of Private Mass Tort Settlements

Jeremy Grabill (Weill, Gotshall) has posted to SSRN his article, Judicial Review of Private Mass Tort Settlements, which is forthcoming in the Seton Hall Law Review.  Here's the abstract:

In the mass tort context, class action settlements have largely given way to a unique form of non-class aggregate settlements that this Article refers to as “private mass tort settlements.” Although it has been argued that aggregation in tort law is “inevitable,” the legal profession has struggled for many years to find an effective aggregate settlement mechanism for mass tort litigation that does not run afoul of the “historic tradition” that everyone should have their own day in court, assuming they want it. Over the last decade, however, as a result of the evolution of non-class aggregate settlements, a new opt-in paradigm for mass tort settlements has emerged that is true to that historic tradition. This Article discusses the new opt-in paradigm and the appropriate contours of judicial authority vis-à-vis private mass tort settlements.

Private mass tort settlements present a difficult conundrum for presiding judges. On one hand, mass tort litigation requires active judicial involvement and oversight due to the sheer size and complexity of such matters. Thus, having been intimately involved in the litigation from its inception, it understandably seems natural for courts to want to exercise some degree of control over private mass tort settlements. But, on the other hand, like traditional one-on-one settlements and unlike class action settlements and other specific settlements, private mass tort settlements do not impact the rights of absent or unrepresented parties. Perhaps not surprisingly then, courts have struggled in applying established principles concerning the scope of judicial authority to evaluate and oversee the implementation of traditional settlements in the unfamiliar context of private mass tort settlements. 

This Article seeks to provide a clear path forward by first examining the limited contexts in which courts have the authority to evaluate and oversee the implementation of traditional settlements, highlighting the nature of the absent or unrepresented interests that judicial review is designed to protect in those traditional contexts. The Article then discusses the emerging opt-in paradigm for mass tort settlements and traces the paradigm’s lineage to three recent cases: In re Baycol Products Liability Litigation, In re Vioxx Products Liability Litigation, and In re World Trade Center Disaster Site Litigation. The Article argues that the well-established maxim that courts lack authority over private one-on-one settlements should apply with equal force to private mass tort settlements because these non-class aggregate settlements allow each individual plaintiff to decide whether or not to settle on the terms offered and do not impact the rights of absent or unrepresented parties. In short, courts do not have - and do not need - the authority to review private mass tort settlements. The Article concludes by addressing the arguments that have been advanced to support judicial review of non-class aggregate settlements, debunking the “quasi-class action” theory that some courts have relied upon to regulate attorneys’ fees in connection with mass tort settlements, and discussing the various ways in which courts may nevertheless be able to influence private mass tort settlements.

BGS

August 29, 2011 in Aggregate Litigation Procedures, Informal Aggregation, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, August 25, 2011

RAND Reports on Asbestos Bankruptcy Trusts and Tort Compensation

RAND's Institute for Civil Justice last week released its report, Asbestos Bankruptcy Trusts and Tort Compensation, by Lloyd Dixon and Geoffrey McGovern.  Here's the summary:

Payments by asbestos bankruptcy trusts have played an increasingly important role in compensating asbestos injuries and have become a matter of contention between plaintiff and defense attorneys. At issue is how tort cases take into consideration compensation paid by trusts and the evidence submitted in trust claim forms. This monograph examines how such evidence and compensation are addressed by state laws and considered during court proceedings. It also examines how the establishment of the trusts potentially affects plaintiff compensation from trusts and the tort system combined, payments by defendants that remain solvent, and the compensation available to future, as compared to current, plaintiffs. The authors find that the potential effects of trusts' replacement of once-solvent defendants are very different in states with joint-and-several liability than in states with several liability. In states with joint-and-several liability, total plaintiff compensation should not change. In several-liability states, the replacement of once-solvent defendants by trusts can cause total plaintiff compensation to increase, decrease, or remain unchanged. The findings underscore the importance of information on plaintiff exposure to the products and practices of the bankrupt firms in determining the trusts' effects on plaintiff compensation and on payments by defendants that remain solvent. 

RAND also published the shorter Research Brief, Bankruptcy Trusts, Asbestos Compensation, and the Courts, by the same authors.  

BGS

August 25, 2011 in Aggregate Litigation Procedures, Asbestos, Ethics, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 24, 2011

Call for Papers for "New Voices" Workshop at Vanderbilt's Branstetter Litigation & Dispute Resolution Program

Announcement from Professor Tracey George, who is the new Director of Vanderbilt's Branstetter Litigation & Dispute Resolution Program:

***

VANDERBILT LAW SCHOOL • BRANSTETTER LITIGATION & DISPUTE RESOLUTION PROGRAM

CALL FOR PAPERS

Vanderbilt Law School and the Cecil D. Branstetter Litigation & Dispute Resolution Program announce the 2012 New Voices in Civil Justice Scholarship Workshop to be held at Vanderbilt on April 20, 2012, and invite submissions for the workshop.

The Branstetter Litigation & Dispute Resolution Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution.  The idea for the Branstetter “New Voices” workshop is to draw together scholars on civil justice issues who are in the first seven years of their academic careers. Four to six scholars will be chosen by anonymous review of the submitted papers.  The audience will include invited junior scholars, Vanderbilt faculty, and invited guests.  Previous participants include Nora Freeman Engstrom (Stanford), Maria Glover (Harvard), Margaret Lemos (Cardozo), Jonathan Mitchell (George Mason), Myriam Gilles (Cardozo), Donna Shestowsky (UC Davis), Benjamin Spencer (Washington & Lee), Amanda Tyler (George Washington), and Tobias Wolff (Pennsylvania).

The format for the workshop is designed to maximize collegial interaction and feedback.  All participants will have read the selected papers.  A senior faculty member will provide a brief overview and commentary on the paper, and then we are off and running with interactive discussion.  Paper authors thus do not deliver prepared “presentations” as such.  Rather, the overwhelming majority of each session is devoted to collective discussion of the paper involved. 

Submission requirements.  

1. Subject matter.  Submitted papers should address an aspect of civil justice.  Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decisionmaking, alternative dispute resolution, remedies, and conflict of laws.  In keeping with the intellectual breadth of the Branstetter Program faculty, we are very receptive to the full range of scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.  

2. Author qualifications.  To be eligible to submit a paper, scholars must currently hold a permanent faculty position.  In addition, scholars may not have held a position at assistant professor or higher (including visiting assistant professor) prior to 2004.

3. Format.  Papers may be sent in either Microsoft Word or Adobe Acrobat format.  To maintain the anonymity of the process, please remove any self-identifying information from the submission.

4. Deadline.  Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 13, 2011.  Please include your name, current position, and contact  information in the e-mail accompanying the submission.  We will contact you with our decision by February 15.

The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants.  If you have any questions, please email Professor Tracey George, Branstetter Program Director, at Branstetter.Program@vanderbilt.edu

***

BGS

August 24, 2011 in Aggregate Litigation Procedures, Class Actions, Conferences, Mass Tort Scholarship, Procedure, Settlement | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

Potential Solutions for the Frivolous Lawsuit -- Of Rule 11 Proposals and Loser Pays

The U.S. Chamber of Commerce is arguing in favor of the Lawsuit Abuse Reduction Act, which is pending in the House and would change Rule 11 back to its pre-1993 mandatory sanctions approach and remove the current 21-day "safe harbor" for a litigant to withdraw challenged filings.  In the 1980s, I believe the mandatory-sanctions/no-safe-harbor regime was blamed for increasing costly satellite Rule 11 litigations brought by both plaintiffs and defendants who perhaps in an excess of zeal repeatedly argued that the other side's positions were utterly meritless and frivolous.

The U.S. Chamber of Commerce also suggests that the Lawsuit Abuse Reduction Act would make it easier for parties challenging to recover their attorneys' fees.  That modification raises the larger question of "loser pays" as a broad and perhaps more effective way to deter frivolous lawsuits.  Under loser pays, the party that loses in a litigation must pay the attorneys' fees of the prevailing party. Followed in much of the world outside the U.S., loser pays deters frivolous litigation by removing much of the litigation costs that are used as a weapon to extract a nuisance-value settlement.  For example, if it costs a defendant $50,000 in legal fees to obtain a ruling that a lawsuit is meritless, a plaintiff lawyer might offer to settle with the defendant for $25,000 -- less than it costs to litigate to a judge ruling.  Unless the defendant thinks the plaintiff lawyer will turn around and sue the defendant again, the defendant may well choose the $25,000 settlement, even if the lawsuit seems clearly meritless or frivolous.  But the $25,000 settlement may sufficiently compensate (via contingency fee) the plaintiff lawyer to incentivize the plaintiff lawyer to file another meritless claim against another defendant, and indeed, the plaintiff lawyer might even develop a successful business in frivolous claims.  In contrast, if a loser-pays rule applies, defendant might well reject the $25,000 settlement and elect to spend $50,000 to obtain a court ruling exposing and dismissing the frivolous claim, also confident that the defendant can seek to recover the $50,000 in attorneys' fees from the plaintiff under the loser-pays rule.  Moreover, ex ante, the plaintiff lawyer in a loser-pays jurisdiction should decline to even file a meritless claim, because the plaintiff lawyer would expect that the defendant would refuse a nuisance settlement and instead litigate to a ruling that will impose defendant's attorneys' fees on the plaintiff.  The presence of loser pays is often cited as one reason that countries outside the United States have less litigation -- see, e.g., John Stossel, When Lawyers Become Bullies, Real Clear Politics (April 8, 2008).

One significant objection to loser pays is that impecunious plaintiffs will elect never to file their claims not because their claims are frivolous, but because they are risk averse about the possibility of defendants' attorneys fees being imposed on them.  This concern is even greater in tort litigation, where injured plaintiffs are regular folks whose finances may already be strained by an injury.  So the argument goes, loser pays should be rejected because these impecunious plaintiffs will not file what are meritorious suits -- and access to justice is denied.

But what if the cost of loser pays were permitted to be shifted from a plaintiff to his or her attorney?  Plaintiff attorneys already make entrepreneurial decisions about the likelihood of success in a case when plaintiff attorneys decide whether to take a case on contingency fee and risk no reimbursement if they lose at trial or by judicial ruling.  Adding fee-shifting via loser pays would only increase the size of the bet on each case, and plaintiff firms could adjust to that larger bet by becoming somewhat larger and greater diversifying that risk, or even by gaining greater access to outside capital and loans (the latter of which is itself controversial).  Ultimately, injured plaintiffs would conceivably still have access to attorneys for meritorious cases, but having lost the threat of nuisance-value settlements and now fearing fee-shifting via loser pays, plaintiff lawyers would screen out frivolous claims and never file them.

I think there is much to recommend this market-finance-oriented version of loser pays, but of course plaintiff lawyers might resist it because it would remove the stream of income from nuisance-value settlements.  And even though they might not admit it, defense lawyers also benefit from being hired to defend frivolous cases, so they might not vigorously push such a proposal, unless their defendant clients vigorously pushed them to do so.  Ultimately, a reduction in frivolous litigation reduces the wealth of the entire bar, but the bar has no valid entitlement to enrichment by waste.  Notwithstanding lawyers' interests, Alaska has had a version of loser pays, and Texas over a month ago enacted a version of loser pays.  If Texas Governor Rick Perry enters the Republican primary as a candidate for President in 2012, loser pays as litigation reform (and tort reform) may well receive substantial national attention. That would be a good thing.

BGS

July 8, 2011 in Aggregate Litigation Procedures, Ethics, Lawyers, Procedure, Settlement | Permalink | Comments (0) | TrackBack (0)

Thursday, July 7, 2011

GMO Rice Lawsuits Settle for $750M

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BNA Class Action Litigation Reporter reports that the lawsuits against Bayer Cropscience for the contamination of rice crops with genetically modified rice have settled. The case was In Re: Genetically Modified Rice Litigation, E.D. Mo., No. 4:06-md-1811. 

The plaintiffs were denied class certification for predictable reasons. The settlement is equally predictably organized on the Vioxx model: it goes into effect if 85% of the farmers sign on.

For more information on the MDL GMO Rice Litigation see the E.D.Mo. website: http://www.moed.uscourts.gov/node/115. (As for this writing, not updated to reflect the BNA report of settlement).   As the website notes, the GMO rice has since been de regulated by the FDA.

ADL

Image by scottchan.

July 7, 2011 in Aggregate Litigation Procedures, Environmental Torts, FDA, Settlement, Vioxx | Permalink | Comments (0) | TrackBack (0)

Thursday, June 16, 2011

Supreme Court decides Smith v. Bayer

Today, the Supreme Court decided Smith v. Bayer (opinion here), applying the Anti-Injunction Act to reject a federal court's attempt to control state court class certification.

The federal MDL judge in the Baycol litigation had rejected class certification for a class of West Virginia plaintiffs, finding that common questions did not predominate because each plaintiff would have to prove actual injury.  One of the members of the putative class filed a lawsuit in West Virginia state court (it was non-removable because it included several West Virginia defendants in addition to Bayer), and sought class certification.  Bayer asked the MDL judge for an order enjoining the state court from hearing Smith's motion to certify the class, arguing that Smith's class action was identical to the one the federal court had rejected.  The judge granted the injunction and the Eighth Circuit affirmed.

The Supreme Court unanimously reversed in an opinion by Justice Kagan.  The Anti-Injunction Act, 28 U.S.C. 2283, generally prohibits federal courts from enjoining state court proceedings.  Bayer argued that this case fits within the Act's relitigation exception; according to Bayer, issue preclusion prevents Smith from relitigating the issue of class certification.  The Court rejected this argument for two reasons: (1) it's not the same issue, and (2) it's not the same party. 

It's not the same issue because states are entitled to interpret their own procedural rules differently from federal courts' interpretation of the Federal Rules of Civil Procedure.  Last year's ruling in Shady Grove Orthopedic Associates v. Allstate (2010) emphasized that Rule 23 applies in federal courts and state courts apply their own class action rules.  The text of West Virginia's Rule 23 is nearly identical to the federal rule, but as Justice Kagan explained, federal and state courts "can and do apply identically worded procedural provisions in widely varying ways."  In the Rezulin litigation, the West Virginia Supreme Court announced that it did not necessarily follow the federal approach to class certification, particularly on the question of predominance.  Given that the state does not follow the federal interpretation of Rule 23, issue preclusion cannot prevent relitigation of class certification and the injunction was improper.

It's not the same party because Smith was not a named plaintiff in the federal court case.  You can't bind a non-party, as the Supreme Court emphasized in Taylor v. Sturgell (2008), where it rejected nonparty preclusion on a theory of virtual representation.  Bayer argued that Smith was bound as a member of the class, but the Supreme Court pointed out that there was no class because class certification was rejected: "The definition of the term 'party' can on no account be stretched so far as to cover a person like Smith, whom the plaintiff in a lawsuit was denied leave to represent."

The Court got it right.  It's a complicated case but it was an easy decision.  State courts have their own rules and are entitled to decide what procedures to follow.  Even though a federal judge concluded (correctly, in my view) that the mass tort litigation involving Baycol was not suitable for a class action under Federal Rule 23, the West Virginia state court is entitled to decide that issue under the West Virginia class action rule.  But the decision shows how messy things get when mass disputes are litigated in both federal and state courts.  Justice Kagan's opinion acknowledges the "special problems of relitigation" that can be presented by class actions, but suggests that the solution lies in removal under CAFA and transfer under the MDL statute, rather than departing from fundamental principles of preclusion.

HME

June 16, 2011 in Aggregate Litigation Procedures, Class Actions, Pharmaceuticals - Misc., Rezulin | Permalink | Comments (0) | TrackBack (0)

Thursday, June 9, 2011

BP Oil Spill Appeals Judges Appointed

The Gulf Coast Claims Facility has appointed twenty-five people to serve as appeals judges for BP's private compensation system.  Alabama's Press Register describes the process as follows:

Anyone who files a claim valued at more than $250,000 can protest the claims operation’s initial ruling to the appeals panel. BP can protest the decision on any claim above $500,000.

The judges will serve in panels of three. The panels will have 14 days to rule on each case before them.

If claimants are not happy with the appeals ruling, they can file their claim with the U.S. Coast Guard, or sue BP and other companies involved in the spill.

Jack Weiss, LSU's law school dean selected the following people to serve on the panel:

  • Judge Delores R. Boyd (ret.) of Montgomery, Alabama. Boyd is a former Magistrate Judge of the United States District Court for the Middle District of Alabama.
  • Dean John L. Carroll of Birmingham, Alabama. Carroll is the Dean and Ethel P. Malugen Professor of Law at the Cumberland School of Law of Samford University and a former Magistrate Judge of the United States District Court for the Middle District of Alabama.
  • Judge William R. Gordon (ret.) of Montgomery, Alabama. Gordon is a former Circuit Judge of the 15th Judicial Circuit Court of Alabama.
  • Justice Champ Lyons, Jr. (ret.) of Point Clear, Alabama. Lyons is a former Associate Justice of the Supreme Court of Alabama.
  • Judge Edward B. McDermott (ret.) of Dauphin Island, Alabama. McDermott is a former Circuit Judge of the 13th Judicial Circuit Court of Alabama.
  • Judge Kenneth O. Simon (ret.) of Birmingham, Alabama. Simon is a former Circuit Judge of the 10th Judicial Circuit Court of Alabama.
  • Professor Charles W. Ehrhardt of Tallahassee, Florida. Ehrhardt is the Ladd Professor Emeritus at Florida State University College of Law.
  • J. Joaquin Fraxedas of Altamonte Springs, Florida. Fraxedas is an attorney mediator/arbitrator and a Distinguished Fellow of the American College of Civil Trial Mediators.
  • Judge Melvia B. Green (ret.) of Tampa, Florida. Green is a former Judge of the 3rd District Court of Appeal of Florida.
  • Justice Major B. Harding (ret.) of Tallahassee, Florida. Harding is a former Chief Justice of the Supreme Court of Florida.
  • Judge John J. Upchurch (ret.) of Ormond Beach, Florida. Upchurch is a former Chief Judge of the 7th Judicial Circuit Court of Florida and was appointed by the Supreme Court of Florida as a charter member of the Supreme Court Committee on Mediation and Arbitration.
  • Dean Donald J. Weidner of Tallahassee, Florida. Weidner is the Dean and Alumni Centennial Professor at Florida State University College of Law.
  • Judge Gerald T. Wetherington (ret.) of Coral Gables, Florida. Wetherington is a former Chief Judge of the 11th Judicial Circuit Court of Florida and has served as a Judge Pro Tempore of the 2nd and 4th District Courts of Appeal of Florida.
  • Judge Robert J. Burns, Sr. (ret.) of Metairie, Louisiana. Burns is a former Chief Judge of the 24th Judicial District Court of Louisiana and served as a Judge Pro Tempore of the 5th Circuit Court of Appeal.
  • Judge Philip C. Ciaccio (ret.) of New Orleans, Louisiana. Ciaccio is a former Judge of the Louisiana 4th Circuit Court of Appeal and has served as a Justice Ad Hoc of the Supreme Court of Louisiana.
  • Judge David S. Gorbaty (ret.) of Chalmette, Louisiana. Gorbaty is a former Judge of the Louisiana 4th Circuit Court of Appeal.
  • Chancellor Freddie Pitcher, Jr. of Baton Rouge, Louisiana. Pitcher is the Chancellor and Professor of Law at the Southern University Law Center and a former Judge of the Louisiana 1st Circuit Court of Appeal.
  • Professor Ronald J. Scalise, Jr. of New Orleans, Louisiana. Scalise is the A.D. Freeman Associate Professor of Civil Law at Tulane Law School.
  • Lynne R. Stern of New Orleans, Louisiana. Stern is an attorney mediator/arbitrator and past Chairman of the Alternative Dispute Resolution Section of the Louisiana State Bar Association.
  • Professor Guthrie T. Abbott of Oxford, Mississippi. Abbott is a Professor Emeritus of Law at the University of Mississippi School of Law.
  • Professor Patricia W. Bennett of Madison, Mississippi. Bennett is a Professor of Law at Mississippi College School of Law.
  • Richard T. Bennett of Clinton, Mississippi. Bennett is an attorney mediator/arbitrator, former President of the Mississippi State Bar and serves on the Board of Directors of the American Arbitration Association.
  • Judge W. Raymond Hunter (ret.) of Gulfport, Mississippi. Hunter is an attorney mediator/arbitrator, a former Municipal Court Judge for the City of Long Beach and serves as President of the Mississippi Chapter of Attorney-Mediators.
  • Harold D. Miller, Jr. of Madison, Mississippi. Miller is an attorney mediator/arbitrator and served as the first Chairman of the Alternative Dispute Resolution Section of the Mississippi State Bar.
  • Anne P. Veazey of Ridgeland, Mississippi. Veazey is an attorney mediator/arbitrator and serves on the Executive Committee of the Mississippi State Bar Alternative Dispute Resolution Section

ECB

June 9, 2011 in Aggregate Litigation Procedures, Current Affairs, Environmental Torts, Mass Disasters, Procedure | Permalink | Comments (0) | TrackBack (0)