Tuesday, October 14, 2014

The Future of Class Action Litigation: A View from the Consumer Class

NYU's new Center on Civil Justice is hosting a conference on November 7 titled "The Future of Class Action Litigation: A View from the Consumer Class."  Here's a bit more information for those in the area who might be interested (I understand there will be up to 6 CLE hours available):

Co-hosted with the NYU Journal of Law & Business

Keynote Address by Chief Judge Alex Kozinski, US Court of Appeals for the Ninth Circuit

Friday, November 7, 2014

REGISTER HERE.  Up to 6  hours of New York State CLE credit will be available to both experienced and newly admitted attorneys under the Areas of Professional Practice Category.

NYU School of Law
Vanderbilt Hall, Greenberg Lounge
40 Washington Square South

Have consumer class actions run their course? Once, they were praised for increasing access to justice by compensating "small claims held by small people." They were also seen as a form of regulation, because they allowed private enforcement of the law by overcoming the economics of small-stakes individual litigation. This view was so widely accepted that the Supreme Court described these "negative value" suits as "the very core of the class action mechanism."  

Now, consumer class actions face serious criticism for failing to provide compensation for class members or to achieve effective market regulation.  Courts and commentators have questioned whether class members or society benefit from these cases. Perhaps as a result, it is harder to certify a consumer class action today than at any time since the adoption of modern Rule 23 in 1966.

This conference will explore whether consumer class actions deserve the criticism—or the praise—that they have received. Participants will discuss a broad range of issues about the recent development of the law of consumer class actions. The conference will also consider what the criticism of consumer class actions means for the future of class actions more generally. If "the very core" of class actions goes away, what will be left? 

 

Conference Schedule

8:30 - 9:00 am - Registration

(Registration will take place just outside of Greenberg Lounge)

9:00 - 9:15 am  - Welcoming Remarks

Introduction – Peter L. Zimroth, Director of the Center on Civil Justice

Remarks - Dean Trevor W. Morrison, NYU School of Law

9:15 - 10:30 am: Panel 1 -  The Current State of the Consumer Class Action

Moderator:  Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law and Faculty Co-Director, Center on Civil Justice, NYU School of Law

When Peace is Not the Goal of a Class Action Settlement
D. Theodore Rave, Assistant Professor of Law, University of Houston Law Center

The Identifiable Consumer: The Ascertainability Doctrine and Rule 68 Offers as Impediments to the Class
Myriam Gilles, Professor of Law, Benjamin N. Cardozo School of Law

Comments: Andrew Pincus, Mayer Brown LLP

10:30 - 10:45 am - Coffee Break

10:45 am - 12:00 pm: Panel 2 - Reforming the Consumer Class Action

Moderator:  Troy A. McKenzie, Professor of Law and Faculty Co-Director, Center on Civil Justice, NYU School of Law

Constructing Issue Classes
Elizabeth Chamblee Burch, Associate Professor of Law, University of Georgia School of Law

Compensation in Consumer Class Actions:  Data and Reform
Brian T. Fitzpatrick, 2014-15 FedEx Research Professor of Law, Vanderbilt Law School (with Robert C. Gilbert, , Grossman Roth)

Comments:  Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP

12:00 - 1:00 pm - Lunch

1:00 - 2:15 pm: Panel 3 - Alternatives to the Consumer Class Action

Moderator:  Michael S. Barr, Professor of Law, University of Michigan Law School

Contract Procedure, Regulatory Breakdown
David L. Noll, Assistant Professor of Law, Rutgers University School of Law – Newark

Government Compensation and the Class Action
Adam Zimmerman, Associate Professor of Law, Loyola Law School

Comments: Mark P. Goodman, Debevoise & Plimpton LLP

2:15 - 2:30 PM: Break

2:30 - 3:45 PM: Panel 4 - Roundtable Discussion:  Consumer Class Actions and the Future of the Class Action

Moderator: Arthur R. Miller, University Professor and Faculty Co-Director, Center on Civil Justice, NYU School of Law

Participants:

  • Sheila A. Birnbaum, Quinn Emanuel Urquhart & Sullivan, LLP
  • Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP
  • Charles Delbaum, National Consumer Law Center
  • Andrew Pincus, Mayer Brown LLP
  • Hon. Lee H. Rosenthal, US District Court for the Southern District of Texas

4:00 - 4:45 pm: Keynote Address

Chief Judge Alex Kozinski, US Court of Appeals for the Ninth Circuit

Introduction by Arthur R. Miller

4:45 - 5:00 PM: Closing Remarks by Peter Zimroth

 

Register here

October 14, 2014 in Aggregate Litigation Procedures, Class Actions, Conferences, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

First Annual Civil Procedure Workshop

I received a notice about the First Annual Civil Procedure Workshop from Dave Marcus (Arizona) this morning and wanted to circulate it as broadly as possible.  Here's the information from the organizers:

We are pleased to announce the first annual Civil Procedure Workshop, to be co-hosted by Seattle University School of Law, the University of Washington School of Law, and the University of Arizona Rogers College of Law. The Workshop will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona.

The Workshop will give both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. We hope the Workshop will strengthen the study of procedure as an academic discipline. By assembling annually, colleagues will have regular opportunities to meet to exchange ideas, to collaborate, and to participate in a national conversation on civil procedure scholarship.

Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead the commentary. Confirmed participants for 2015 include Stephen Burbank, Scott Dodson, Myriam Gilles, Suzette Malveaux, Judith Resnik, Suja Thomas, and Tobias Barrington Wolff.

We welcome all civil procedure scholars to attend this Workshop. Those wishing to present a paper for discussion in the Workshop should submit a two-page abstract by December 15, 2014. While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for ten years or fewer. Workshop organizers will select papers to be presented by January 31, 2015. Please send all submissions or related questions to Brooke Coleman.

The Workshop will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches.

Feel free to contact us with questions. 

Brooke Coleman (Seattle), colemanb@seattleu.edu

Liz Porter (UW), egporter@uw.edu

Dave Marcus (Arizona), dmarcus@email.arizona.edu

October 7, 2014 in Conferences | Permalink | Comments (0) | TrackBack (0)

Saturday, October 4, 2014

Remanding Multidistrict Litigation

I've been a bit slow in posting this, but Louisiana Law Review hosted an excellent symposium last spring titled The Rest of the Story: Resolving the Cases Remanded by the MDL.  As part of that symposium, I wrote a piece titled Remanding Multidistrict Litigation.  Remands are something that have received scant attention in the scholarly literature, but are a constant hope for many plaintiffs' lawyers involved in multidistrict litigation (well, at least those who aren't on the steering committees). 

I just got around to posting the piece on SSRN today.  Here's the abstract:

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through jury trials in affected communities. Yet, if transferee judges remanded cases after overseeing discovery into common issues, they could alleviate those concerns while avoiding inconsistent rulings on common questions and streamlining discovery.

Despite the potential upside, remand rarely occurs because it disfavors those with litigation control—transferee judges, lead plaintiffs’ attorneys, and defendants. Transferee judges deem settlement a hallmark of their success. Lead plaintiffs’ lawyers try to increase their fees by inserting fee provisions into settlements. Likewise, plaintiffs’ attorneys can bypass doctrinal uncertainties over weak claims by packaging plaintiffs together in a global settlement. And aggregate settlements allow defendants to resolve as many claims as possible in one stroke, take their hit, and return to business, which their shareholders view as a net positive.  The remand process itself defers to these vested interests. Although the Panel could remand cases at a party’s request, in practice it appears never to have done so. Rather, it waits for the transferee judge to admit defeat and suggest remand—thereby conceding failure.

For transferee judges to begin remanding cases, the “pro-settlement” norm and “remand-as-a-failure” stigma must change.  Accordingly, transferee judges should routinely entertain a suggestion for remand by a party or initiate them sua sponte as soon as discovery on common issues concludes and only case-specific issues remain.  Likewise, the Panel should seriously consider parties’ remand requests even when the transferee judge does not support them.  This reopens a direct line for parties to request remand when common discovery ends, but the transferee judge prefers to hold cases hostage in hopes of coercing settlement.

October 4, 2014 in Aggregate Litigation Procedures, Conferences, Current Affairs, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

SUNY Buffalo Civil Justice Symposium 2014

If you happen to be in Buffalo this Monday, you might check out SUNY's Civil Justice Symposium on Recent Developments in Tort Law and Practice.  Ken Feinberg is the keynote speaker.  There's also a panel at 10:20 where I, along with our co-blogger Sergio Campos, Emery Lee (FJC), and Matt Steilen will discuss disaggregating (I think the official title is Aggregation and Disaggregation in Mass Torts).  Here's the rest of the agenda:

Civil Justice Symposium 2014: Recent Developments in Tort Law and Practice 

Featuring

Kenneth R. Feinberg as The Gerald S. Lippes Lecture Speaker

The Lippes Lecture is brought to you by SUNY Buffalo Law and UB's School of Managment

Mr. Feinberg is an attorney who has overseen the payouts of billions of dollars to the victims of the September 11 Victim Compensation Fund, the BP oil spill, and the Boston Marathon bomb victims, among other highly visible settlements. 

7:30 a.m.Conference and keynote registration begins 

8:00 a.m. Coffee and light food

8:45 a.m. to 10:00 a.m. Keynote Address and Q&A

The all-day CLE conference - Civil Justice Symposium 2014 - featuring renowned judges and attorneys on recent developments in tort law and practice to immediately follow the Lippes Lecture.

Earn 4.5 non-transitional NYS CLE credits in the area of professional practice. The Law School has a financial harship policy. For details contact: Lisa Mueller lmueller@buffalo.edu.

For a full panel listing, including descriptions and speakers visit our web page.

10:20 a.m. Aggregation and Disaggregation in Mass Torts

11:30 a.m. Luncheon

12:15 p.m. Luncheon panel with judges from across NYS speak on their experience with asbestos litigation.

1:40 p.m. Past, Present and Future of NYCAL

2:50 p.m. Update on the RAND ICJ Asbestos Project

4:00 p.m. The Past, Present and Future of the New York Scaffolding Law

5:00 p.m. Wine & Beer Reception with light fare
Sponsored in part by the SUNY Buffalo Law Alumni Association
* Not a member of the LAA? Join here.

October 4, 2014 in Aggregate Litigation Procedures, Conferences | 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)

Tuesday, March 4, 2014

LSU Symposium on Multidistrict Litigation

Louisiana Law Review is hosting a symposium on Multidistrict Litigation this Friday, March 7, 2014, that focuses on remand and may be of interest to our readers.  The title of the symposium is "The Rest of the Story: Resolving Cases Remanded by MDL Here's the link for registration and additional information.

Here's the list of Panels and Panelists:

8:25-8:30: Welcome Address & Opening Remarks

  • Chancellor Jack Weiss; LSU Law School

 8:30-9:30: Panel 1: Collaboration of Judges and Attorneys in MDL Case Management

The panel will discuss how attorneys and judges can successfully collaborate to use disaggregation as a tool of effective case management.

Moderator: Francis McGovern; Professor of Law, Duke Law School

  • Judge Eldon Fallon; U.S. District Court for the Eastern District of Louisiana
  • Richard Arsenault; Neblett, Beard, & Arsenault
  • James Irwin; Irwin Fritchie Urquhart & Moore, LLC

 9:40-10:40: Panel 2: Effectively Planning for Disaggregated Discovery

The panel will discuss when discovery issues should be disaggregated for separate resolution, and the costs, benefits, and challenges of reserving issues for separate discovery. 

Moderator: Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas

  • Mark Lanier; The Lanier Law Firm
  • James Irwin; Irwin Fritchie Urquhart & Moore, LLC
  • Dean Edward F. Sherman; Tulane University Law School

 10:50-11:50: Panel 3: Integrating Aggregated and Disaggregated Discovery Issues

The panel will discuss various kinds of discovery (e.g., E-Discovery, expert discovery, and specific discovery), and the strategic and case management challenges each method presents in the context of MDLs, including both aggregated and disaggregated discovery issues. 

Moderator: Mark Lanier, The Lanier Law Firm

  • Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas
  • Francis McGovern; Professor of Law, Duke Law School
  • Richard Arsenault; Neblett, Beard, & Arsenault
  • David Jones; Beck Redden, LLP

 11:50-12:10: Lunch Break

12:10-1:10: Panel 4: (Lunch Presentation) The Real Story: FJC Data on What the Empirical Data on MDL Remands Shows

Federal Judicial Center researchers will present findings from their research on multidistrict litigation. The analysis will focus on two sets of cases: (1) cases that are considered for transfer but not transferred, and (2) cases that are transferred and that are subsequently remanded back to the transferor court. Understanding these cases, and the cases that are resolved in the transferee court, may provide some insight into the effects of aggregation on various kinds of cases

Moderator: Judge Lee Rosenthal; U.S. District Court for the Southern District of Texas

  • Emery G. Lee, III, Federal Judicial Center
  • Margaret Williams, Federal Judicial Center
  • Catherine Borden, Federal Judicial Center

 1:20-2:20: Panel 5: When Remand is Appropriate

The panel will discuss at what stages plaintiffs, defendants, and judges perceive optimal windows to disaggregate various kinds of issues, and the factors that influence the decision and timing.

Moderator: Dean Edward F. Sherman, Tulane University Law School

  • Judge Fallon; U.S. District Court for the Eastern District of Louisiana
  • Professor Elizabeth Burch, University of Georgia School of Law
  • David Jones, Beck Redden, LLP

2:30-3:30: Panel 6: How Remand Should be Effectuated

The panel will discuss how judges and attorneys work together to effectuate remand of MDL cases, including methods for ensuring smooth transitioning of work product, case management, and expertise to state and federal judges upon remand. 

Moderator: Francis McGovern; Professor of Law, Duke Law School

  • Judge Fallon; U.S. District Court for the Eastern District of Louisiana
  • Professor Teddy Rave, University of Houston
  • Professor Elizabeth Burch, University of Georgia School of Law

 3:30-3:45: Closing Remarks

 

ECB

March 4, 2014 in Conferences, Current Affairs, Mass Tort Scholarship, Procedure, Settlement, Trial | Permalink | Comments (0) | TrackBack (0)

Saturday, September 21, 2013

Vanderbilt's 2014 New Voices in Civil Justice Scholarship Call For Papers

Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2014 New Voices in Civil Justice Scholarship Workshop, to be held May 12-13, 2014, at Vanderbilt Law School. 

The New Voices format maximizes collegial interaction and feedback. Paper authors do not deliver prepared “presentations.” Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows. 

Submission requirements: 

1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all 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 either a faculty position or a fellowship. 

3. Format / Anonymity. We will consider preliminary drafts, drafts under submission, or accepted papers that will not be published by the time of the workshop. Papers should be formatted either in Microsoft Word or Adobe Acrobat. 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 1, 2014. 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. Final drafts are due no later than April 15. 

The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. Additional information can be found at http://law.vanderbilt.edu/newvoices. If you have any questions, please email the chair of the selection committee, Brian Fitzpatrick, at brian.fitzpatrick@vanderbilt.edu. 

ECB

September 21, 2013 in Conferences, Current Affairs | Permalink | Comments (0) | TrackBack (0)

20th Annual Clifford Symposium

This spring's 20th Annual Clifford Symposium at DePaul University College of Law is featuring Judge Jack Weinstein's Impact on Civil Justice in America.  It looks like they have lined up an allstar cast, with Justice Stephen Breyer giving the special address.  Speakers include:

Susan Bandes, DePaul University College of Law

Anita Bernstein, Brooklyn Law School

Shari Seidman Diamond, Northwestern University

Howard M. Erichson, Fordham University School of Law

David L. Faigman, University of California Hastings College of the Law

Kenneth R. Feinberg, Feinberg Rozen LLP

Richard D. Friedman, University of Michigan Law School

Judge John Gleeson, U.S. District Court, Eastern District of New York

John C.P. Goldberg, Harvard Law School

James R. Hackney, Northeastern University School of Law

Judith S. Kaye, Chief Judge (ret.) New York Court of Appeals; Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates

Alexandra D. Lahav, University of Connecticut School of Law

David Marcus, University of Arizona College of Law

Judge Brian R. Martinotti, Bergen County, New Jersey

Jennifer L. Mnookin, UCLA School of Law

Jeffrey Morris, Touro Law Center

Linda S. Mullenix, University of Texas School of Law

Robert L. Rabin, Stanford Law School

Judge Shira A. Scheindlin, U.S. District Court, Southern District of New York

Elizabeth Schneider, Brooklyn Law School

Tom R. Tyler, Yale Law School

Judge Jack B. Weinstein, U.S. District Court, Eastern District of New York

Adam Zimmerman. Loyola Law School, Los Angeles

The symposium takes place on April 24, 2014.  Here's a link to the brocure.

ECB

September 21, 2013 in Conferences, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, April 6, 2013

Lessons from Chevron: Symposium Videos

For those who were unable to attend the "Lessons from Chevron" symposium at Stanford Law School in February, the conference website now has links to videotapes of the panels. Some of the panels focused directly on the Chevron-Ecuador environmental litigation itself, while others used that litigation as a springboard to consider such issues as litigation financing, transnational legal ethics, forum non conveniens, judgment enforcement, international discovery, and international arbitration. The participants included a mix of players in the litigation, journalists who have followed the litigation, and scholars interested in various aspects of transnational litigation: Deborah Hensler, Graham Erion, Theodore Boutros, Judith Kimerling, Burt Neuborne, Martin Redish, Maya Steinitz, Nora Freeman Engstrom, Morris Ratner, Catherine Rogers, Patrick Keefe, Jenny Martinez, Howard Erichson, Manuel Gomez, Christopher Whytock, Janet Martinez, Michael Goldhaber, Richard Marcus, and S.I. Strong.

HME

April 6, 2013 in Conferences, Environmental Torts, Foreign | Permalink | Comments (0) | TrackBack (0)

Friday, April 5, 2013

The Chevron-Ecuador Litigation and Forum Non Conveniens

I have posted a new paper on SSRN entitled The Chevron-Ecuador Dispute, Forum Non Conveniens, and the Problem of Ex Ante Inadequacy. Here is the abstract:

This essay, written for the 2013 Stanford Journal of Complex Litigation symposium on lessons from the Chevron-Ecuador environmental litigation, urges that we not take the wrong lesson concerning the doctrine of forum non conveniens. The paper highlights the irony of the forum battles in the litigation. The plaintiffs sued in the United States, the defendants won dismissal on grounds of forum non conveniens (arguing that the dispute should be adjudicated by the courts of Ecuador), the plaintiffs obtained a massive judgment in Ecuador, and the defendants challenged the judgment on grounds of fraud and corruption in the Ecuadorian proceedings. Despite the temptation to see the Chevron-Ecuador litigation as a cautionary tale about forum non conveniens, this essay argues that the “adequate alternative forum” standard for forum non conveniens should remain exceedingly low. Ex ante, deference to foreign legal systems should prevail, even as we permit ex post challenges to recognition of judgments on grounds of fraud and corruption.

The essay was prepared for the Stanford Lessons from Chevron symposium, which took place in February. On this blog, the long-running environmental dispute has come up a number of times, including a recent reference to Michael Goldhaber's work and earlier reports here, here and here

HME

April 5, 2013 in Conferences, Environmental Torts, Foreign, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 1, 2013

GW Class Action Symposium

For those who were unable to attend the excellent conference on class actions that was held last month at George Washington Law School, video recordings of the panels can now be found on the conference website.

HME

April 1, 2013 in Class Actions, Conferences, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 22, 2013

Goldhaber on the Chevron-Ecuador Litigation

At Corporate Counsel, there's an interesting piece by journalist Michael Goldhaber entitled Kindergarten Lessons from Chevron in Ecuador. Goldhaber, who has been following this massive and messy litigation for years, offers what he sees as some of the true and false lessons from the ongoing litigation concerning Texaco-Chevron's involvement in oil drilling in Ecuador.

In a nutshell, the litigation involves claims that a Texaco subsidiary caused environmental damage to the Oriente region of Ecuador. Plaintiffs originally sued in the Southern District of New York, but their suit was dismissed on grounds of forum non conveniens. Plaintiffs then filed a lawsuit in Ecuador and won an $18 billion judgment. Chevron contends that the Ecuadorian judgment was obtained by fraud and corruption, and has resisted enforcement of the judgment. Chevron sued plaintiffs' attorney Stephen Donziger and others, asserting RICO and fraud claims. An international arbitration tribunal weighed in pursuant to the Ecuador-US bilateral investment treaty. Plaintiffs are seeking to enforce the judgment in Canada, Argentina, Brazil and elsewhere. This mess of a litigation has been going on for nearly 20 years.

Goldhaber, in prior work, has articulated a strong view that the Ecuadorian judgment was the product of fraud and corruption. In the new article, Goldhaber takes as his starting point the Stanford Journal of Complex Litigation symposium that took place in February. He goes through the basic lessons offered by the participants -- plaintiffs' lawyer Graham Erion, defense lawyer Theodore Boutros, and a host of scholars including myself.

The strongest lesson (and here I am in complete agreement with Goldhaber): "Be careful what you wish for." The irony of this litigation is overwhelming. Texaco fought to have the case dismissed on grounds of forum non conveniens, arguing that Ecuador was a more appropriate forum. The plaintiffs argued that the Ecuadorian courts could not handle the case and that it should remain in the U.S. Ever since the massive judgment, however, the positions have been flipped -- with the plaintiffs insisting that the judgment deserves respect and the defendant contending that the Ecuadorian courts were corrupt. Goldhaber has referred to this as "forum shopper's remorse."

But I do not agree with Goldhaber's next step. Noting that "the abuse of transnational litigation would never have happened had the U.S. held on to the case," he suggests that the doctrine of forum non conveniens be altered to take into account the stakes and political significance of a case:

The great blunder in this dispute was to ship it to Ecuador in the name of forum non conveniens. The U.S. courts could have saved everyone a lot of grief had they recognized that a case is more prone to abuse when the issues are (a) high-stakes or (b) politicized. I learned from Russia's Yukos affair that, even if a weak judicial system has made significant progress, it does not deserve trust in a hot-button case of great magnitude. It was reckless to expect Ecuador (even if it had just adopted a new set of corruption reforms) to handle a huge case pitting gringo oil companies against indigenous rights. My modest suggestion is to incorporate these factors into the FNC analysis.

The adequate alternative forum prong of the forum non conveniens analysis is a low threshold, and deliberately so. A lawsuit alleging environmental harm to Ecuadorian land and medical harm to Ecuadorian citizens, and involving control over Ecuadorian natural resources, belongs in Ecuador. That is the very point of forum non conveniens. A U.S. court should be loath to say that it will hear the case in the U.S. because it thinks the Ecuadorian courts just cannot handle it. A judgment obtained by fraud should not be enforceable elsewhere, but this is better addressed ex post, which is exactly what the current litigation -- albeit in a rather ugly fashion -- is doing. But to have said, ex ante, that the case should be heard in the United States despite all of the public and private interest factors that pointed to Ecuador, would have been a mistake.

HME 

March 22, 2013 in Conferences, Environmental Torts, Foreign, Mass Tort Scholarship, Procedure | Permalink | Comments (1) | 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)

Monday, January 21, 2013

Lessons from Chevron: Stanford Journal of Complex Litigation Symposium

The Stanford Journal of Complex Litigation is hosting a symposium on the Chevron Litigation on February 8, 2013.   Our own Howard Erichson will be speaking on the ethics of transnational litigation. 

Here is a description:

The ongoing litigation between Chevron and the people of Lago Agrio, Ecuador regarding alleged environmental harms dating from Texaco’s oil exploration and extraction in Ecuador now spans three continents and nearly twenty years; and concerns the largest judgment ever awarded in an environmental lawsuit, eighteen billion dollars.  The litigation has been called both “a shakedown,” and “a landmark victory,” yet it continues to be litigated around the world and divide both the bar and the academy.  What are the consequences of this case?  With complex litigation becoming increasingly transnational, what general lessons can be drawn from this case?  These questions are at the heart of SJCL’s inaugural symposium. 

 

January 21, 2013 in Conferences, Environmental Torts | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 28, 2012

Lawyering for Groups symposium

On Friday, Nov. 30, Fordham Law School will host a symposium entitled Lawyering for Groups: Civil Rights, Mass Torts, and Everything in Between. Organized by Benjamin Zipursky and myself, the conference participants include Elise Boddie, Elizabeth Burch, Kristen Carpenter, Brian Fitzpatrick, Bruce Green, Samuel Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, Russell Pearce, Theodore Rave and Eli Wald. It is co-sponsored by the Stein Center for Law and Ethics and by the Fordham Law Review, which will publish the papers.

As I read the authors' drafts in preparation for the symposium, I am struck by how difficult the fundamental questions remain. What does it mean, really, for a lawyer to represent a group of similarly situated claimants? Is it a bundle of individual lawyer-client relationships, or is it better understood in practice as a relationship between a lawyer and a group, with the primary duty owed to the group as a whole?  Does class certification fundamentally change the nature of the representation, or in some cases is the class action better understood as an acknowledgement of the reality of mass representation and the imposition of a set of procedural protections? 

I am struck, as well, by how these questions transcend any particular area of practice. The symposium grew out of Ben Zipursky's and my shared interest in the ethics of group lawyering. He and I have lectured to mass tort lawyers on ethics in mass tort litigation, as well as to civil rights lawyers on the ethics of civil rights litigation. Each area brings its own challenges, but the core questions about collective representation apply to both. Convinced that these issues deserve attention, we pulled together a group of proceduralists and ethicists with widely varying views on aggregate litigation and different areas of expertise. I'm looking forward to learning a lot. The agenda is here.

HME

November 28, 2012 in Conferences, Ethics, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2012

Call for Papers: "The Public Life of the Private Law: The Logic and Experience of Mass Litigation" A Conference in Honor of Richard A. Nagareda

Here's the announcement from Vanderbilt Law School:

Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program.  “The Public Life of Private Law: The Logic and Experience  of Mass  Litigation”  Conference will be held  on  September 27  and  28,  2013,  at  Vanderbilt  and  is  jointly  sponsored  by  the  Branstetter  Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media.   Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas). We invite junior scholars to submit paper proposals for the conference by February 15. 

In  the  spirit  of  Oliver Wendell Holmes, Richard  Nagareda  devoted  himself  to studying the life of the law‐‐the law as it actually plays out in lawyer‐client relationships, the  maneuvering  of  adversary  litigation,  the  efforts  by  judges  to  manage  an  unruly litigation  process,  and  the  construction  of  elaborate  settlement  agreements  that  now dominate the modern landscape of civil litigation.  Yet despite his relentless focus on the “realities” of civil litigation, Richard never fell prey to skepticism about law.  Indeed, he insisted that lawyerly efforts to fashion new claims and new forms of dispute resolution are and  should  be  shaped  by  substantive  law, the  rules  of  professional  responsibility,  and ultimately principles of administrative law.   The hallmark of his work is its commitment to taking seriously both the logic and the experience of mass tort law and complex litigation.  

This conference pays homage to Richard’s scholarship by inviting a new generation of  scholars  to  address  topics  and  concerns  related  to  his  work.      Each  panel  will  be organized around a junior scholar’s paper with senior scholars commenting on papers. Senior scholars will include Lynn Baker, Bob Bone, Beth Burch, Brian Fitzpatrick, Tracey George, Myriam Gilles, John Goldberg, Sam Issacharoff, Bill Rubenstein, Suzanna Sherry, Charlie Silver, and Patrick Woolley.     All papers and comments will be published in the Journal of Tort Law.  

If  you  are  a  junior  scholar  interested  in  participating,  please  submit  a  five‐page paper proposal to Branstetter.Program@vanderbilt.edu no later than February 15.   If your proposal is accepted, we will inform you by March 15.   All travel expenses will be covered for invited  junior  scholars.   If  you  have  any questions,  please  email  Branstetter Director Tracey George (tracey.george@vanderbilt.edu). 

ECB

November 27, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

Vanderbilt's New Voices in Civil Justice Workshop

Vanderbilt is conducting its annual New Voices in Civil Justice Workshop on May 6-7 and has issued a call for papers.  Papers should be submitted by January 1, 2013.  Both Alexi and I participated last year and I can attest that it's a great program and a wonderful way for junior scholars to receive feedback from senior folks in the field in a relaxed environment.  (Plus, Nashville is lovely in the spring if you need an additional reason to submit a paper!)  Here's the information from Vanderbilt and a link to the program website:

Vanderbilt Law School’s Cecil D. Branstetter Litigation & Dispute Resolution Program holds an annual New Voices in Civil Justice Workshop in the spring. Junior scholars’ works are selected based on an anonymous review of an outstanding group of papers submitted for consideration. A senior scholar briefly introduces and comments on each paper before opening the session up to discussion about the work. The senior scholars typically include Branstetter faculty and several distinguished visitors.

The Branstetter Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution. The New Voices workshop brings together junior scholar authors, invited senior scholars, and Vanderbilt faculty in the areas of civil justice.

This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. The 2013 New Voices in Civil Justice Scholarship Workshop will be held at Vanderbilt Law School on May 6-7, and the Branstetter Program invites submissions for the workshop.

The New Voices format maximizes collegial interaction and feedback. Paper authors thus do not deliver prepared “presentations” as such. Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.

ECB

November 12, 2012 in Conferences, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, October 20, 2012

U.S. Chamber of Commerce 13th Annual Legal Reform Summit

The conference will take place on October 24, 2012 in Washington, D.C., and includes panels on third-party litigation financing and global litigation (including the Chevron Ecuadoran litigation and the adoption of class actions in other countries).

BGS

October 20, 2012 in Aggregate Litigation Procedures, Class Actions, Conferences, Environmental Torts, Foreign, Procedure | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2012

Conference on Cost-Driven Litigation Paradigms -- When is a Case Too Big to Litigate?

ABA Litigation Section Conference on Current Issues on Pharmaceutical and Medical Device Litigation

The conference will take place on November 16, 2012 in Boston, Massachusetts.  Here's the brochure.

BGS

October 19, 2012 in Conferences, Medical Devices - Misc., Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)