Mass Tort Litigation Blog

Sixth Biennial Conference on the Law of Obligations at University of Western Ontario

Announcement from Professor Jason Neyers (Univ. of Western Ontario):

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Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy

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.

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BGS

Class Action Symposium at SCOTUSblog

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

ECB

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:

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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

The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond

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

Registration

Please contact Lori Strait at lori.strait@uc.edu/513.556.0117. 

ECB

Video for Mississippi College Law Review Symposium on BP Oil Spill

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.

BGS 

Mississippi College Law Symposium on BP Gulf Oil Spill

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.

BGS

UPDATE -- Here's the full-length brochure for the symposium:  Download MC Law BP Symposium Handout.

The Future of Arbitration: George Washington Conference

Alan Morrison and Roger Trangsrud of George Washington are hosting a conference on the future of arbitration on March 17-18. 

Here's a description of the program and list of the panels and times:

Over the past several decades, the Federal Arbitration Act (FAA) has been increasingly used by businesses to divert claims from the courts into the arbitral forum that they consider more favorable to them, which in many cases means that, as a practical matter, the claims will never be brought.  In almost every case, the Supreme Court has upheld the position of the person arguing that unwilling parties who signed agreements containing a mandatory pre-dispute arbitration provision can be required to pursue their claims in arbitration. 

Since the enforceability of such agreements is governed by the FAA, Congress can amend the FAA if it believes that those decisions produce undesirable results. The purpose of this conference is to debate the key policy questions surrounding various aspects of arbitration. The program will not be about what the FAA now permits and requires, but what it should permit and require.

Panel discussions will be held in the Jacob Burns Moot Court Room.

March 17

2-3:30 pm
Panel: Channeling Class Actions into Single Claims Arbitrations

Andrew Pincus, Partner, Mayer Brown
Alan Kaplinsky, Partner, Ballard Spahr
Deepak Gupta, Staff Attorney, Public Citizen Litigation Group
Joshua Civin, Assistant Counsel of the Economic Justice and Education Practices, NAACP Legal Defense Fund

3:30-3:45 pm: Break

3:45-5:15 pm
Panel: Proper Forum for Class Actions - Court or Arbitration?

Eric Tuchmann, General Counsel and Corporate Secretary, American Arbitration Association
Brian Wolfman, Visiting Professor of Law and Co-Director, Institute for Public Representation, Georgetown Law
Jay Tidmarsh, Professor of Law, Notre Dame Law School

March 18

8-8:30 am: Breakfast

8:30-10 am
Panel: Procedural Rules or Limits & Federal vs. State Law

Paul Bland, Senior Attorney, Public Justice
Nina Pillard, Professor of Law, Georgetown Law
Thomas Stipanowich, Academic Director, Institute for Dispute Resolution, William H. Webster Chair in Dispute Resolution, and Professor of Law, Pepperdine University 
Christopher Drahozal, John M. Rounds Professor of Law and Associate Dean for Research & Faculty Development, University of Kansas

10:15-11:45 am
Panel: The Role of Courts in Supervising Arbitrations

George Bermann, Jean Monnet Professor in EU Law, Walter Gellhorn Professor of Law, and Director of European Legal Studies, Columbia Law School
Nancy Welsh, Professor of Law, Penn State Law
Jean Stemlight, Director of the Saltman Center for Conflict Resolution and Michael and Sonja Saltman Professor of Law, the University of Nevada, Las Vegas

Noon-1 pm: Lunch

1:15-2:45 pm
Panel: What Should Congress Do Beyond Procedural Reforms?

Kevin Carroll, Securities Industry Association
Elisabeth Stein, American Association for Justice
John Roddy, Partner, Roddy Klein & Ryan
Stephen Burbank, David Berger Professor for the Administration of Justice, University of Pennsylvania Law School

If you're interested in attending here's the registration link.

ECB

Actuarial Litigation: How Statistics Can Help Resolve Big Cases

I'm organizing a conference with the University of Connecticut Insurance Law Center called "Actuarial Litigation: How Statistics Can Help Resolve Big Cases" to be held on Friday, April 15, 2011 at UConn.

The participants are an amazing group and there should be a lot of chances for synergy between experts in statistics, experts in law and everyone in between.  Here is the list:

Kenneth R. Feinberg, Feinberg Rozen LLP - who needs no introduction

Robert G. Bone, University of TexasLaw School

Edward K. Cheng, Vanderbilt Law School

Howard Erichson, Fordham Law School

James Grenier, Harvard Law School

Deborah Hensler, Stanford Law School

Samuel Issacharoff, New York University Law School

Joseph B. Kadane, Carnegie Mellon University, Department of Statistics

Francis McGovern, Duke Law School

Adam Scales, Washington & Lee School of  Law

Alex Stein, Benjamin N. Cardozo School of Law

 

ADL

 

 

Southwestern Law School Symposium on International Law Ten Years From Now

On Saturday, February, 26, 2011, the Southwestern Journal of International Law is hosting a symposium entitled, 2021: International Law Ten Years From Now, at Southwestern Law School in Los Angeles.  The symposium is being presented in conjunction with International Law Weekend-West of the International Law Association (American Branch).  Panels will address topics including international litigation, international human rights, international environmental law/climate change, international dispute resolution law, and international legal profession.  The keynote speaker will be Michael Traynor, President Emeritus and Council Chair of the American Law Institute, and Co-Chair of the ABA Commission on Ethics 20/20.  Here's the brochure.

BGS

Supreme Court Grants Cert in Dukes v. Wal-Mart Stores, Inc.

In a long awaited decision to Wal-Mart's petition, the United States Supreme Court granted review in Dukes v. Wal-Mart Stores, Inc.  There's already been a good bit of academic commentary on the case.  Vanderbilt Law Review En Banc hosted a Roundtable discussion on the case, which is available here.  It includes my introduction to the issues in the Dukes case along with Bob Bone's essay, Sorting Through the Certification Muddle; Greg Mitchell's essay, Good Causes and Bad Science; Alexi Lahav's essay, The Curse of Bigness and the Optimal Size of Class Actions; and, of course, the late Richard Nagareda's essay, Common Answers for Class Certification.

Suzette Malveaux, Bob Bone, Melissa Hart, and I will be hosting a "hot topics" panel on the Dukes case at this year's AALS meeting.  The panel is currently scheduled for Friday, January 7, 2011, from 8:30-10:15 a.m. at the San Francisco Hilton.  We have, however, requested that the location be changed due to the on-going labor disputes, so an update may follow.  

Update: Interestingly, the Court granted cert only on Wal-Mart's first question, "Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under what circumstances."  (Wal-Mart Petition for Cert. at i).  The Court also directed the parties to "brief and argue the following question: 'Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).'"  For those who are interested, I address the issues underlying this question in pages 93-98 of the Introduction.

ECB

4th International Conference on the Globalization of Collective Litigation at Florida International University College of Law

The 4th International Conference on the Globalization of Collective Litigation
 will take place on Friday, December 10, 2010 at Florida International University College of Law
 in Miami.

This conference, co-organized by professors Manuel A. Gomez (Florida International University College of Law ) and Deborah R. Hensler (Stanford Law School) is the fourth in the series of international conferences on the global spread of collective litigation begun in 2007 at Oxford University. It will bring together academicians, policy analysts and legal practitioners to systematically review the status of collective litigation around the world with special focus on Latin America, a region signaled by a growing interest in protecting collective rights, the passage of legislation that provides for class actions and similar mechanisms, and the increased participation of domestic courts in deciding cases that involve large-scale accidents, environmental harms, exposure to toxic materials, defective products and financial injuries. 
The conference will address issues of critical importance including financing, coordination and enforcement. It will also serve as a vehicle to exchange information about how the collective litigation rules work in practice, who is availing themselves of these procedures and for what ends, and what the economic and social consequences are for individuals, business, and the public interest.

The full agenda and registration information are available here.

Although I won't be speaking at the conference, I'm planning on attending the conference, as I'm currently researching the Toyota Unintended Acceleration MDL in connection with a Law and Society Association international research collaborative (IRC) on the Globalization of Class Actions and Other Forms of Collective Litigation.  Several of the conference moderators and speakers are also active in the IRC, including IRC participants Deborah Hensler (Stanford), Christopher Hodges (Oxford), Ianika Tzankova (Tilburg U., Netherlands), and Manuel Gomez (Florida International).

BGS

Upcoming conferences?

Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars.  One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2011 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc.  Even conferences with tentative plans and dates can be listed.  Please send the details by December 5 to Thom Main at tmain@pacific.edu.

ECB

David Wilkins on Globalization, Technology, and the Legal Profession

At the ABA annual meeting on Monday, Professor David Wilkins (Harvard) delivered a fascinating, far-reaching lecture on legal-profession trends, including globalization and technology.  While he only briefly mentioned "tort," the changes he discussed are already appearing in the increase in cross-national mass tort litigation.  In the United States, the growth of mass tort litigation stemmed from increasingly national products, national advertising, and nationally dispersed injured victims.  As markets go global, so too do the problems that lead to mass torts.  The rise of Western-style legal cultures and lawsuits in Asia will likely increasingly turn those mass torts into mass tort litigations -- which will in turn mean that plaintiffs' lawyers will coordinate not just nationally, but internationally; and companies will increasingly turn to defense lawyers as lead counsel not just nationally, but internationally.  (For background, see my 2005 article on litigation networks in the U.S.)  Here's Professor Wilkins' address:

BGS

Dukes v. Wal-Mart - Ninth Circuit En Banc Decision Issued Today

In a long awaited decision, the Ninth Circuit finally issued its en banc opinion in Dukes v. Wal-Mart Stores, Inc.  Although I haven't yet had a chance to read the 137 page opinion (though it does provide a nice diversion from exam grading), the Ninth Circuit affirmed class certification of the largest class action to date.  For a smattering of commentary, see here, here, and here.  For those interested in the decision, I've put together a panel at this year's Law and Society Annual meeting in Chicago, IL.  The panel will be on Sunday, May 30, and the topics range from procedural class certification aspects to substantive employment-discrimination aspects.

Update: After an admittedly quick skim, here are a few things about the class-certification standard in the opinion worth noting:

After giving what it sees as a spectrum of circuit court opinions (p. 6156-62) on the inquiry into and resolution of mixed questions of law and fact, the Ninth Circuit observes that "A district court must sometimes resolve factual issues related to the merits to properly satisfy itself that Rule 23's requirements are met, but the purpose of the district court's inquiry at this stage remains focused on, for example, common questions of law or fact under Rule 23(a)(2), or predominance under Rule 23(b)(3), not the proof of answers to those questions or the likelihood of success on the merits." (Op. at 6169).  The Ninth Circuit then notes that the greater willingness to inquire into the facts during certification has evolved largely through securities class actions, in particular, in fraud-on-the-market cases.  Based, in part, on that observation, the court then clarified its standard as follows:

1. "[W]hen considering a class certification under Rule 23, district courts are not only at liberty to, but must, perform a rigorous analysis to ensure that the prerequisites of Rule 23 have been satisfied, and this analysis will often, though not always, require looking behind the pleadings to issues overlapping with the merits and underlying claims." (Op. at 6176-77).

2. "[D]istrict courts may not analyze any portion of the merits of a claim that do not overlap with the Rule 23 requirements.  Relatedly, a district court performs this analysis for the purpose of determining that each of the Rule 23 requirements has been satisfied."  (Op. at 6177).

3. "[C]ourts must keep in mind that different parts of Rule 23 require different inquiries.  For example, what must be satisfied for the commonality inquiry under Rule 23(a)(2) is that plaintiffs establish common questions of law and fact, and answering those questions is the purpose of the merits inquiry, which can be addressed at trial and summary judgment." (Op. at 6177).

4. "[D]istrict courts retain wide discretion in class certification decisions, including the ability to cut off discovery to avoid a mini-trial on the merits at the certification stage." (Op. at 6177).

5. "[D]ifferent types of cases will result in diverging frequencies with which the district court will properly invoke its discretion to abrogate discovery." (Op. at 6177).

As to the Daubert issue, i.e., whether courts should subject experts to a Daubert examination when their testimony speaks to class-certification issues, the Ninth Circuit seems to apply a full Daubert standard to Dr. Bielby, one of the plaintiffs' experts.  It notes that Wal-Mart challenged only whether inferences could be drawn from the expert's data.  "But because Daubert does not require a court to admit or exclude evidence based on its persuasiveness, but rather requires a court to admit or exclude evidence based on its scientific reliability and relevance . . . testing Dr. Bielby's testimony for 'Daubert reliability' would not have addressed Wal-Mart's objections." (Op. at 6191).  Consequently, it concludes that Wal-Mart's argument for excluding that testimony during class certification wasn't warranted because the argument was misplaced.  Thus, "[a]t the class certification stage, it is enough that Dr. Bielby presented scientifically reliable evidence tending to show that a common question of fact . . . exists."  (Op. at 6193).

If you're principally interested in the Rule 23(b)(2) issues, you might start at page 6214.  I'll try to provide a better overview once I've had a chance to read the opinion in more detail.

ECB

ACI Conference on Chemical Products Liability and Environmental Litigation

American Conference Institute will be hosting a conference on Chemical Products Liability and Environmental Litigation on April 28-29, 2010 in Chicago, IL.  I will be speaking on mass torts and ethics, with particular attention to the ethics of mass settlements.  Here's the brochure (Download ACI Brochure).  

BGS

Mass Torts & Bankruptcy Teleconference

HB Litigation Conferences will be hosting a teleconference on Mass Torts & Bankruptcy on Wednesday, April 7, from 2:00 p.m. to 3:40 p.m. EST.  I'll be speaking along with Steven C. Bennett (Jones Day), Sander Esserman (Stutzman Bromberg), and Mark Plevin (Crowell & Moring).

BGS

Panel on Pluralism in Tort Law and Litigation at Annual Conference of the Association for the Study of Law, Culture and the Humanities

As previously mentioned, I was part of a panel on Pluralism in Tort Law and Litigation at the annual conference of the Association for the Study of Law, Culture and the Humanities, which took place on Saturday, March 20 at Brown University.  Professor Alan Calnan (Southwestern) moderated the panel, and other participants included Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston).  Below are the abstracts and links to audio from the presentations and Q&A.  Thanks to Alan Calnan for moderating and to all for participating.

***

I.  Prof. Alan Calnan -- Introduction (audio)

II.  Prof. Christopher Robinette -- "The Instrumentalism in Tort Reforms" (audio)

The traditional view among legal historians is that tort was largely deontic private law until the late nineteenth century.  Due to factors such as the Industrial Revolution and the advent of liability insurance, tort became (more) instrumentalist.  A survey of major tort reforms over the course of the last century provides evidence to support this view.  Each of the reforms--workers' compensation, no-fault automobile insurance, products liability, and "modern" tort reforms (such as damage caps)--is based in instrumentalism.  Furthermore, the reforms become increasingly integrated into tort law as time passed.  The earliest reform, workers' compensation, was a substitute for tort law.  By the time of the modern reforms, instrumentalism is operating within tort itself, and covers a multitude of tort cases.

III.  Prof. Byron Stier -- ""Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand" (audio)

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

IV.  Prof. Sheila Scheuerman (audio)

In my presentation, I examine whether and when tort law should permit
"no injury" claims -- claims where the plaintiff's harm has not yet
materialized.  Examples of these suits include medical monitoring
actions, products liability claims where a known defect exists, but the
product has not yet malfunctioned, as well as consumer fraud claims
where the consumer's decision was not affected by the defendant's
alleged misrepresentation.  Recent years have seen an influx of these
suits under an array of tort and contract theories.  Traditionally,
however, tort doctrine has premised liability on an injury to an
identified party.  But is "injury" a necessary pre-requisite?  I address
whether tort values support these "no injury" causes of action.  In
other words, should "no injury" claims be actionable under the varied
rationales for the tort system and, if so, under what circumstances?

V.  Questions and Answers (audio)

***

BGS

ASLCH Annual Conference and Presentation on "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"

On Saturday, March 20, I'll be speaking as part of a panel on "Pluralism in Tort Law and Litigation" at the annual meeting of the Association for the Study of Law, Culture, and Humanities, at Brown University in Rhode Island.  The panel will be moderated by Professor Alan Calnan (Southwestern), and other presenting panelists are Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston). A podcast of the panel may later be posted on this blog.  Given the conference's focus on culture and humanities, my talk draws upon literature and political theory.  Here's the abstract for my talk:

Byron Stier -- "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

BGS

Tort law conference at Pepperdine

Here's an announcement from Prof. Richard Cupp about an upcoming conference at Pepperdine:

The Pepperdine Law Review is hosting a symposium on April 16, 2010 entitled Does the World Still Need United States Tort Law? Or Did it Ever?  The symposium will examine the present and future influence of United States tort law on other nations in light of globalization’s rise and United States tort law’s concurrent retrenchment on many fronts.

Some of the symposium speakers include Michael Bidart (Shernoff,  Bidart  & Echeverria), Ellen Bublick (University of Arizona), Richard L. Cupp (Pepperdine), John C.P. Goldberg (Harvard), Michael D. Green (Wake Forest), Ellen S. Pryor (SMU), Robert L. Rabin (Stanford), Michael L. Rustad (Suffolk), Victor E. Schwartz (Shook, Hardy & Bacon), Marshall S. Shapo (Northwestern), Stephen D. Sugarman (Boalt Hall), and Roger P. Alford (Pepperdine) . International scholars speaking at the symposium include Peter Cane (Australian National University), Bruce Feldthusen (University of Ottawa), Lewis N. Klar (University of Alberta), the Honorable Allen M. Linden (Pepperdine; former judge of the Federal Court of Appeal of Canada), and Jane Stapleton (University of Texas). The Honorable Allen M. Linden will be honored at the symposium for his enormous contributions as a tort law scholar and teacher both in Canada and in the United States.

A limited number of stipends are available for law professors who wish to attend the symposium. Please contact Professor Richard Cupp at richard.cupp@pepperdine.edu regarding stipend applications.

HME

 

Carrie Menkel-Meadow & Bryant Garth on Empirical Studies of Civil Procedure and Courts

Professor Carrie Menkel-Meadow (Georgetown & UC Irvine) and Dean Bryant Garth (Southwestern) have posted to SSRN their essay, Process, People, Power and Policy: Empirical Studies of Civil Procedure and Courts, which is forthcoming in the forthcoming Oxford Handbook of Empirical Studies.  Here's the abstract:

This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, access to courts, discovery practices, evaluations of the effects of particular rules, such as Rule 11 verification requirements, class actions, and practices such as court use of ADR, case management, and pre-trial conferences. The authors argue that empirical research on procedures and policies in courts have mostly been conducted in service of particular reform agendas, with a few exceptions of more "pure academic" study. The essay concludes with some suggestions for research questions that explore questions of who does the research for what purposes. Do researchers use research to develop their own "human capital" or legal reform influence? How do we know what optimal rates of court usage are? Can empirical studies shed light on more normative questions about what are optimal levels of process, access to courts, and when justice is delivered in formal court institutions?

BGS