Wednesday, November 28, 2012
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.
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 (firstname.lastname@example.org).ECB
Monday, November 12, 2012
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.
Saturday, October 20, 2012
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).
Friday, October 19, 2012
HB Litigation Conferences has put together a Judicial & Lawyers’ Forum on Cost-Driven Litigation Strategies — The New Paradigm: When is a Case Too Big to Litigate?, on November 9, 2012, at the University of Chicago. Here's the brochure.
Wednesday, October 10, 2012
Tuesday, August 14, 2012
Below is an announcement for the Branstetter Civil Justice Workshop. This is a wonderful experience if you are lucky enough to be selected! ADL
2013 NEW VOICES IN CIVIL JUSTICE SCHOLARSHIP WORKSHOP
CALL FOR PAPERS
Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its annual New Voices in Civil Justice Scholarship Workshop, to be held May 6-7, 2013 at Vanderbilt Law
This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. The format maximizes collegial interaction and feedback: in lieu of author “presentations,” 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.
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.
Submissions must be received at Branstetter.Program@vanderbilt.edu
no later than January 1, 2013. Selected participants will have reasonable travel and accommodations covered. Other requirements and more details about the workshop can be found at www.law.vanderbilt.edu/newvoices.
Wednesday, May 2, 2012
In June, the Association of American Law Schools will host a major conference in Berkeley, CA, on environmental disasters. The sessions include such cheery topics as "History of Disaster," "Psychology of Disaster," "Disaster Federalism," and "Disaster Justice." Along the way, there will be sessions on tort law, environmental law, and regulatory perspectives on environmental disasters. The disputes arising out of 9/11, Katrina, and the Gulf oil spill leave no doubt that environmental catastrophes present some of the most challenging problems of mass tort litigation in the 21st century.
The speakers include many of the leading scholars in torts, environmental law, complex litigation, and related fields, including Tom Baker, David Dana, Daniel Farber, Sheila Foster, Myriam Gilles, Michael Green, Laura Hines, Keith Hylton, Gregory Keating, Douglas Kysar, Jonathan Masur, John Nagle, Adam Scales, Peter Schuck, Anthony Sebok, Catherine Sharkey, Jed Shugerman, Stephen Sugarman, and many others (and me!). I will speak on a panel about principles for compensation programs and mass settlements.
Tuesday, February 28, 2012
You don't need the Mass Tort Litigation Blog to tell you that the imminent BP trial has been stayed pending settlement talks. In the meantime, here are some thoughts from the ever relevant George Conk. Special shout out for his poetic references: Diving Into the Wreck: BP and Kenneth Feinberg's Gulf.
I was just at a wonderful conference at the Charleston School of Law on Mass Torts and the Federal Courts where Feinberg spoke. One of the key questions at the conference is the extent to which claims facilities (BP, 9/11, etc.) are unique and unlikely to be repeated or the wave of the future. The interesting thing about BP is that it shows the interaction between claims facilities and litigation - its not one or the other. Speakers mentioned how companies trying to get ahead of a litigation may well look to the BP model. Others questioned whether BP was really special because the company was prepared to admit liability (although not gross negligence).
I was especially interested by the remarks of Sheila Birnbaum, currently running the 9/11 Fund for first responders and who mediated settlements for the 94 families who chose not to participate in the 9/11 Victim Compensation Fund. Even the families who wanted a public trial to find out what happened ultimately settled because of the uncertainty of trial. This raises important questions about the purpose of litigation for individuals: is it ultimately to get compensation? How important is it to get to the "truth"? How important is vindication? Punishment? When people settle (or waive their right to litigate prior to filing suit), what kind of consent do we want and does money ultimately satisfy? Lynn Baker, who was at the conference, referred me to the following article that addresses some of these questions: Gillian Hadfield, Framing the Choice Between Cash and the Courthouse: Experiences with the 9/11 Victims Compensation Fund. This continues to be relevant, especially if Funds become a model rather than a one-off.
Monday, January 16, 2012
Below is the announcement from Southwestern Law School, and here is the brochure.
Southwestern Journal of International Law presents
Friday, February 3, 2012, 9:00 a.m. – 5:15 p.m.
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
· 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.
Sunday, November 27, 2011
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.
Monday, November 7, 2011
On this Friday, November 11, 2011, Southwestern Law School in Los Angeles will host a symposium on CERCLA and the Future of Liability-Based Environmental Regulation. Here's a description of the symposium:
Enacted in 1980, CERCLA takes a unique approach to federal environmental regulation. Unlike other major federal environmental statutes, CERCLA addresses soil and groundwater contamination through a tort-like liability scheme imposing joint and several, retroactive liability on broad classes of covered persons to clean up contaminated property. With billions of dollars in aggregate cleanup costs at stake, CERCLA has generated substantial and unrelenting litigation over the past three decades that will likely continue for years to come.
CERCLA presents challenging issues about the relationship between federal and state pollution laws on topics ranging from regulatory oversight to toxic torts. Some accuse CERCLA's broad liability scheme and remediation process requirements (the "national contingency plan") of fostering sprawl by discouraging in-fill property development. Others object to federal and state "brownfield" laws promoting more streamlined in-fill remediation on environmental justice grounds. The U.S. Supreme Court's recent decisions in Aviall, Atlantic Research and Burlington Northern raised new questions about the scope of CERCLA liability, the extent of public and private cost recovery rights, and incentives for polluters to settle CERCLA liabilities with regulatory authorities.
These timely issues address important concerns affecting industries, communities and regulators across the country; they also present bigger picture questions. Has CERCLA worked? Can it be improved? Should CERCLA's tort-like liability-based approach to environmental regulation be employed to address other environmental problems? This symposium will explore the impact of CERCLA on the current state of contaminated property law over the past 30 years and the future of liability-based environmental regulation.
UPDATE -- Here's a desciption of the symposium panels:
Panel #1: CERCLA and Federalism. This panel will discuss the relationship between state and federal contaminated property and land use law, including issues relating to the evolution of state Superfund statutes and tort law, preemption, and concurrent federal, state and local regulatory authority. Speakers: Prof. Robin Kundis Craig (Florida State); Prof. Alexandra Klass (Minnesota); Prof. William Rodgers (Washington); Moderator: Prof. Ann Carlson (UCLA)
Panel #2: CERCLA, Brownfields and Distributive Equity. This panel will focus on the economic, public health and social welfare impacts of CERCLA liability and remediation process requirements on land use and redevelopment, including the economic benefits and environmental justice implications of state and federal brownfield programs. Speakers: Prof. Joel Eisen (Richmond); Prof. Eileen Gauna (New Mexico); Jay Pendergrass, Esq. (Environmental Law Institute); Nicholas Targ, Esq. (Holland & Knight);Moderator: Romel Pascual (Deputy Mayor for Environment, City of Los Angeles)
Panel #3: CERCLA – Public Enforcement. This panel will focus on the effectiveness and normative value of CERCLA’s liability-based regulatory scheme, including an evaluation of the public health and welfare efficacy of the CERCLA cleanup process under the national contingency plan, and the effect of the U.S. Supreme Court’s Atlantic Research and Burlington Northern decisions on public enforcement and regulatory agency settlement options. Speakers: Prof. Martha Judy (Vermont); Prof. Joel Mintz (Nova Southeastern); Prof. Robert Percival (Maryland); Moderator: Professor Daniel Selmi (Loyola)
Panel #4: CERCLA – Private Enforcement. This panel will explore the impact of the Aviall, Atlantic Research and Burlington Northern decisions on CERCLA private cost recovery litigation, as well as waste disposal and litigation behavioral incentives on the regulated community created by CERCLA and the dispute resolution challenges presented by CERCLA’s liability scheme. Speakers: Prof. Steven Ferrey (Suffolk); Prof. Craig Johnston (Lewis & Clark); Prof. Alfred Light (St. Thomas); Moderator: Prof. Ronald Aronovsky (Southwestern)
Thursday, September 1, 2011
Sheila Scheuerman (Charleston School of Law and Torts Prof Blog) is putting together what sounds like an exciting conference on mass torts:
The Federal Courts Law Review at the Charleston School of Law is sponsoring a symposium on "Mass Torts in the Federal Courts" on February 24, 2012, in Charleston. Ken Feinberg will be giving the keynote address. Panels will address the lessons of Wal-Mart v. Dukes for mass torts, the current issues surrounding preemption in mass tort cases, and a look at the ethical issues in mass tort litigation. Registration is not yet open, but if you would like additional information about either conference, contact Associate Professor Sheila B. Scheuerman at sscheuerman (at) charlestonlaw.edu.
Wednesday, August 31, 2011
Announcement from Professor Jason Neyers (Univ. of Western Ontario):
Hosted by The Faculty of Law at the University of Western Ontario
London, Ontario, Canada
July 17-20, 2012
The Faculty of Law at the University of Western Ontario is pleased to be hosting the Sixth Biennial Conference on the Law of Obligations. The conference will bring together leading scholars in tort, contract, equity and unjust enrichment from throughout the common law world.
The theme of the conference is "Challenging Orthodoxy." We have prepared an academic program of over 60 speakers in which professors, graduate students and eminent practitioners will challenge established common law rules and suggest new approaches to both old and emerging problems. The plenary speakers are Chief Justice Beverley McLachlin and Justice Thomas Cromwell (Supreme Court of Canada), Melvin Eisenberg (Berkeley), John Goldberg (Harvard), Andrew Robertson (Melbourne), Ernest Weinrib (Toronto), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).
The Obligations Conference originated at the University of Melbourne in 2002, and has since become one of the leading private law conferences in the common law world. The biennial conferences have been held at the University of Melbourne, the University of Queensland, the National University of Singapore and the University of Oxford.
For more information on the Conference and to register please visit: http://www.law.uwo.ca/Conferences/Obligations6/index.html.
Tuesday, August 30, 2011
SCOTUSblog is hosting an online symposium about the future of class action lawsuits in the wake of Concepcion and Dukes that will include the following contributors:
- Sergio Campos, University of Miami School of Law
- Sarah Crawford, National Partnership for Women and Families
- Scott Dodson, William & Mary Law School
- Allen Erbsen, University of Minnesota Law School
- Ted Frank, Center for Class Action Fairness, LLC
- J. Russell Jackson, Skadden, Arps, Slate, Meagher & Flom LLP
- Paul Karlsgodt, Baker Hostetler
- Charles Silver, University of Texas Law School
- Andrew J. Trask, McGuire Woods
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.
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
Tuesday, March 29, 2011
This coming Friday, the University of Cincinnati College of Law is holding its 2011 Corporate Law Symposium, which is about The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond. The symposium is this Friday, April 1 (no joke), 2011. Here's a description and the schedule of events:
The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond
6 hours of CLE credit have been applied for in Ohio. Approval is expected.
Date: April 1, 2011
Time: 8:45 a.m. – 4:45 p.m.
Location: Room 114
Webcast: View the webcast here: https://www.uc.edu/ucvision/event.aspx?eventid=267
The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond
Aggregate litigation and its impact on business are hot-button issues for courts, policy makers, practitioners and academics. Calls for reform come from both critics and defenders of class actions, as courts work out implementation of Congress’s recent efforts to rein in perceived abuses -- the Private Securities Litigation Reform Act and the Class Action Fairness Act. Recently, the ALI Aggregate Litigation Project focused on the serious problems of management, costs, and risks of underrepresentation presented by large cases and sought to identify good procedures for handling aggregate litigation. Our panelists will present theory, empirical data and practical insights to explore various aspects of aggregate litigation from a variety of perspectives.
Schedule of Events
8:45-9:00 a.m. Welcome: Louis Bilionis, Dean and Nippert Professor of Law, University of Cincinnati College of Law
9:00-10:30 a.m. PANEL I: Class Actions
Moderator: Darrell Miller, Associate Professor of Law, University of Cincinnati College of Law
Robert H. Klonoff, Dean, Lewis & Clark Law School
Reflections on the ALI Aggregate Litigation Project
The recently completed ALI Aggregate Litigation Project focused on the serious problems of management, costs and the risks of underrepresentation presented by large cases and sought to identify good procedures for handling aggregate litigation. Dean Klonoff, Associate Reporter, reflects on the work of the Project and the paramount role of the late Professor Richard A. Nagareda, also Associate Reporter.
Emery G. Lee III, Senior Researcher, Federal Judicial Center and Thomas E. Willging, Senior Researcher (Retired), Federal Judicial Center
Disappearing (Class Action Fairness) Act: Class Certification and Settlement in the Federal Courts
This study reports on empirical findings on class certification and settlement in a representative sample of class actions filed between 2003 and 2007.
Laura Hines, Professor of Law, University of Kansas School of Law
Reconsidering the Issue Class Action
Although the Supreme Court recently declined an opportunity to weigh in on the propriety of the issue class action, the majority of federal courts of appeals and the ALI Aggregate Litigation Project have embraced such class actions. This paper will explore the evolving certification criteria, effect on settlement dynamics, and other unresolved questions regarding the issue class action.
10:30-10:45 a.m. Break
10:45 a.m. -12:15 p.m. PANEL II: Securities Class Actions
Moderator: Lynn Bai, Associate Professor of Law, University of Cincinnati College of Law
Michael A. Perino, Dean George W. Matheson Professor, St. John's University School of Law
Institutional Activism through Litigation: An Empirical Analysis of Public Pension Fund Participation in Securities Class Actions
The PSLRA’s lead plaintiff provision enlisted institutional investors to monitor class counsel in order to curb the agency costs endemic in securities class actions. This paper uses a sample of 731 settlements to examine the efficacy of this provision. It finds that, even when controlling for institutional self-selection of potentially easier or higher quality cases, cases with public pension lead plaintiffs have larger recoveries and lower fee requests and fee awards than cases with other lead plaintiff types. The paper also finds evidence consistent with the existence of a significant positive externality associated with public pension participation. Over time, fee requests and fee awards have on average declined significantly even in cases without such lead plaintiffs. These findings suggest that public pensions act as more effective monitors of class counsel than traditional plaintiffs and that the lead plaintiff provision has substantially reduced the transactions costs associated with securities class actions.
Elizabeth Chamblee Burch, Assistant Professor, Florida State University College of Law
Optimal Lead Plaintiffs
In securities class actions, Rule 23’s adequate-representation requirement is often subsumed by the PSLRA’s lead-plaintiff appointment process. Although Rule 23 aims to prevent conflicts of interest between the representatives and the class, courts define “interests” in terms of a widely shared desire to recover one’s losses. This broad definition allows judges to certify securities class actions and thus promotes corporate accountability, but it also means that plaintiffs’ attorneys can pursue an institutional lead plaintiff’s interests at the other class members’ expense. The “other class members” are principally small investors who need the class-action vehicle the most. Accordingly, Elizabeth Burch will discuss one answer to this conundrum: appointing a diverse lead-plaintiff group and linking diversity to class members’ heterogeneous interests.
Jennifer J. Johnson, Jeffrey Bain Faculty Scholar, Lewis & Clark Law School
Securities Class Actions in State Court: Down but Not Out
This paper explores the remnants of securities class actions in state court in light of congressional efforts to preempt this field embodied in the Securities Litigation Uniform Standards Act of 1998 (SLUSA) and the Class Action Fairness Act of 2005 (CAFA). SLUSA precludes both state and federal courts from adjudicating class actions based upon state statutory or common law, that allege a misrepresentation in connection with the purchase or sale of nationally traded securities. In combination, SLUSA and CAFA direct most remaining securities class actions to federal court. The paper will analyze data on state securities class action filings in the aftermath of SLUSA and CAFA to evaluate the impact of federal preemption and its wisdom as a policy choice.
12:15-1:30 p.m. LUNCH SPEAKER:
Theodore H. Frank, Center for Class Action Fairness
Beyond Coupons: Structuring CAFA Settlements to Maximize Attorneys' Fees
One of CAFA's stated goals was to eliminate settlements where "counsel are awarded large fees, while leaving class members with coupons or other awards of little or no value." As such, statutory language was enacted requiring additional scrutiny of coupon settlements. But the incentive for class attorneys to negotiate high fees for themselves at the expense of class benefits has not disappeared. What other mechanisms are settling parties using to exaggerate the value of class settlements to rationalize disproportionate attorneys' fees? Mr. Frank, using examples from the Center's docket, will discuss the mechanisms class attorneys use, even after CAFA, to maximize attorneys' fee requests.
1:30-3:00 p.m. PANEL III: Aggregate Litigation
Moderator: Lydie Nadia Cabrera Pierre-Louise, Visiting Assistant Professor of law, University of Cincinnati College of Law
G. Robert Blakey, William J. & Dorothy K. O’Neill Chair in Law, Notre Dame Law School
Some Thoughts about the 1995 Securities Fraud Exclusion from Civil RICO
This paper reviews the legislative history, text, and misguided judicial interpretation of the 1995 exclusion of securities fraud from civil RICO, particularly in light of the events of 2007-08. It is one matter not to let civil RICO remedies displace securities fraud remedies; it is another matter entirely to learn that because of the exclusion, you cannot recover under either statute.
Francis E. Mc Govern, Professor of Law, Duke University School of Law
When Aggregate Litigations Conflict: Problems Involving Overlapping Compensation Systems
This paper examines several instances when there are multiple aggregations of claimants implicating multiple, discrete, and overlapping compensation systems. Examples include the asbestos cases: workers' compensation, health and other insurance, governmental compensation, common law relief, bankruptcy trust funds; 9/11: workers' compensation, health and other insurance, other collateral sources, statutory or other governmental compensation, common law remedies; oil spill: workers' compensation, health and other insurance, other collateral sources, Oil Pollution Act of 1990, other state statutory relief, and common law remedies.
Linda S. Mullenix, Morris & Rita Atlas Chair in Law, The University of Texas School of Law
Of Dubious Doctrines: The Quasi Class Action
This paper examines the concept of the quasi class action, articulated by Judge Jack Weinstein in theZyprexa litigation, and the spread of this doctrine to other mass tort and MDL proceedings. Although the doctrine’s critics have focused almost exclusively on the doctrine’s impact on attorney fees, the judicial embrace of the quasi class action expands a new type of lawlessness in resolving law-scale aggregate litigation.
3:00-3:15 p.m. Break
3:15-4:30 p.m. PRACTITIONERS’ ROUNDTABLE
A distinguished panel discusses cutting-edge issues that concern the bench and bar.
Moderator:Michael Solimine,Donald P. Klekamp Professor of Law,University of Cincinnati College of Law
Paul M. De Marco, Waite, Schneider, Bayless & Chesley
Judge Patrick Fischer, Ohio First District Court of Appeals
Caroline H. Gentry, Porter Wright
Richard S. Wayne, Strauss & Troy
4:30-4:45 Concluding Remarks: Barbara Black, Charles Hartsock professor of law and Director, Corporate Law Center, University of Cincinnati College of Law
Sunday, March 27, 2011
The Mississippi College Law Review has posted the video for its symposium, Beyond the Horizon: The Gulf Oil Spill Crisis -- Analyzing the Economic, Environmental, and Legal Implications of the Oil Spill.
Panel One included Ms. Trudy Fisher, Executive Director, Mississippi Department of Environmental Quality; Professor Kenneth Murchison, James E. & Betty M. Phillips Professor, Paul M. Herbert Law Center Louisiana State University; and Professor David Robertson, W. Page Keeton Chair in Tort Law University Distinguished Teaching Professor, University of Texas at Austin. The moderator for Panel One was Ms. Betty Ruth Fox, Of Counsel, Watkins & Eager.
Panel Two included Professor Jamison Colburn, Professor of Law, Penn State University; Professor Edward Sherman, W.R. Irby Chair & Moise S. Steef, Jr. Professor of Law, Tulane University; and myself. The moderator for Panel Two was Professor Jeffrey Jackson, Owen Cooper Professor of Law, Mississippi College School of Law.
Kenneth Feinberg, claims administrator for the Gulf Coast Claims Facility, delivered the symposium Keynote Presentation.
Papers from the symposium will published in the Mississippi College Law Review. Here's the abstract for my symposium talk and forthcoming article:
The Gulf Coast Claims Facility set up following the BP Gulf Oil Spill might be seen as creating a new category of claims fund that might be termed a quasi-public mass tort claims fund. Unlike purely public funds such as the 9/11 Victim Compensation Fund, or purely private funds such as are increasingly created for mass settlements as in Vioxx, the Gulf Coast Claims Facility is funded privately by BP, but bears the public imprimatur of having been initially negotiated by President Obama. Indeed, in an Oval Office Address, President Obama promised that claims would be "fairly" paid and that the fund would "not be controlled by BP," but would instead be administered by an "independent third party." While a quasi-public fund has the advantage of delivering swift compensation in response to an ongoing crisis, the quasi-public fund risks claimant confusion about claim-administrator independence and whether claimants should retain their own counsel to assist in evaluating fund settlement offers. In turn, that claimant confusion can jeopardize the fund's societal savings in attorney-fee transaction costs, and lower claimant participation in the fund. Accordingly, to minimize claimant confusion, a quasi-public fund should provide transparency in its fee structure for claims administrators, and seek a claims-administrator fee structure that minimizes bias, such as utilizing a fixed fee not subject to reevaluation or having defendant agree to a third-party panel's assessment of fees for claims administrators. With regard to the Gulf Coast Claim Facility, claimant participation would likely be enhanced by greater transparency and use of a third-party panel to determine claim-administrator fees.
Wednesday, February 16, 2011
On this Friday, February 18, Mississippi College School of Law will be hosting a law review symposium, Beyond the Horizon: The Gulf Oil Spill Crisis -- Analyzing Economic, Environmental, and Legal Implications of the Oil Spill. Here's the short-form brochure: Download MC Law Review Symposium Brochure.
Speakers include Professors Jamison Colburn (Penn State), Kenneth Murchison (LSU), David Robertson (Texas), Edward Sherman (Tulane), and Trudy Fisher (Miss. Dep't Envt'l Quality). Moderators include Jeffrey Jackson (Mississippi College) and Betty Ruth Fox (Watkins & Eager). Papers will subsequently be published in the Mississippi College Law Review.
I will also be speaking at the symposium, discussing issues of claim-administrator compensation, transparency, and independence in connection with the Gulf Coast Claims Facility. My talk will expand upon my prior blog posts raising concerns (see here and here), which last summer triggered two articles in Forbes (see here and here), as well as a post from Legal Ethics Forum. Two weeks ago, the federal MDL court overseeing the BP litigation granted in part plaintiffs' motion to have the court oversee communications by the Gulf Coast Claims Facility, and the MDL court ordered that the Gulf Coast Claims Facility may not state that it is "neutral" or completely "independent" of BP. Here's the MDL opinion: Download Order - Mot to Supervise GCCF Doc 1098 2-2-2011. On the recent MDL opinion, see also this Reuters article from Moira Herbst, quoting David Logan (Roger WIlliams), Monroe Freedman (Hofstra), and me.
UPDATE -- Here's the full-length brochure for the symposium: Download MC Law BP Symposium Handout.