Monday, August 4, 2014

Mullenix on Compensation Funds

Professor Linda Mullenix has posted a new article titled "Designing Compensatory Funds: In Search of First Principles" on SSRN.  It takes on several high-profile compensation funds and may have something of interest to say about how GM is designing its own compensation fund.  Here's the abstract:

The World Trade Center Victims’ Compensation Fund of 2001 ushered in a new age of fund approaches to resolving claims for mass disasters in the United States. Since then, numerous funds have been created following several mass events injuring large numbers of claimants. The Gulf Coast Claims Facility, created in the immediate aftermath of the BP Deepwater Horizon oil platform explosion, represented a further expansion of fund design and operation. The funds that have been implemented since 2001, including the World Trade Center Fund, have been the object of both praise as well as criticism. Notably, all these funds have been designed and implemented after the events giving rise to a universe of mass claimants. This article suggests that the policy recommendations for future fund design largely fail to address antecedent threshold questions about the nature of the events giving rise to possible recourse to a fund for compensation of claims. Although such compensation funds have been intended to provide an alternative to the tort compensation system and to operate largely outside the purview of the judicial system, instead most fund designs have relied on tort notions of corrective justice that mimic the tort system. However, many funds have in practice entailed mixed theories of corrective and distributive justice, confusing the purpose, utility, and goals of such funds. This article asks fundamental questions about the goals of such funds and whether and to what extent disaster compensation funds comport with theories of justice. It suggests that certain types of mass disaster events ought not to be resolved through fund auspices at all, while only a limited universe of communitarian harms should give rise to such a response. Finally, a communitarian fund designed ex-ante might more fairly be based on theories of distributive justice based on an egalitarian social welfare norm.

August 4, 2014 in Aggregate Litigation Procedures, Current Affairs, Environmental Torts, Mass Tort Scholarship, Settlement | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

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

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

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

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

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

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

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

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

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

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

 

 

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

Thursday, April 24, 2014

FDA to Regulate E-Cigarettes

The FDA announced its plans to begin regulating E-Cigarettes today.  According to many consumers, the proposed regulations have taken too long already.  For example, a March 23, 2014, New York Times article titled "Selling a Poison by the Barrel: Liquid Nicotine for E-Cigarettes," explained that,

These “e-liquids,” the key ingredients in e-cigarettes, are powerful neurotoxins. Tiny amounts, whether ingested or absorbed through the skin, can cause vomiting and seizures and even be lethal. A teaspoon of even highly diluted e-liquid can kill a small child.

As a USAToday article explains, even "[t]he proposed rules won't ban advertising unless the products make health-related claims nor will they ban the use of flavors such as chocolate or bubble gum, which public health officials say might attract children."  Yet, the lawsuits so far have trended in the opposite direction of what one might expect.  The most widely advertised lawsuits to date are either brought on behalf of smokers challenging New York City's ban on "vaping" e-cigarettes in public places or over e-cigarette patents.

April 24, 2014 in Current Affairs, FDA | 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)

Thursday, November 7, 2013

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

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

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

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

ECB

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

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)

Wednesday, July 3, 2013

Justice Kagan Interview

You can find an interview with Justice Kagan here.  

 

At around 20:52 you can see her speaking about Italian Colors and then whether this is a pro-business Supreme Court.

Note the caveat then the description and what looks like a "yes".  She says:

"None of us decide cases based on who the parties are.  Its not like the Chamber of Commerce appears in court and you say I like the Chamber of Commerce...or a consumer appears in court and you say I like consumers or they need more protection or they don't.  I mean, I think people look at the individual cases before them.  But I do think in a number of cases with respect to a number of areas of law there is a majority of the court that has a set of legal views that, you know, provide some significant relief from both federal and state regulation to businesses.  So if you look at just even the last couple of weeks of the term there were a couple of cases in which the Court very restrictively read anti-discrimination laws, made it harder to bring anti-discrimination suits.  There was another case where the Court made it harder for local governments to put conditions on development permits or to do environmental mitigation of some kinds.  There was another case where people made it -- where the Court made  it -- much harder for injured plaintiffs who have had terrible reactions to various kinds of pharmaceutical drugs to sue for injury.  So I think there were a number of cases where the Court made it more difficult for injured persons to come to court and to use federal and state law to hold business to account for injuries that they've done."

At 31.09 Toobin asks her about public opinion's effect on the Court - do they read polls?  Her answer, not really any more enlightening than you'd think it would be:

"I don't think we read polls like that and I don't think polls influence what we do, but you know, on the other hand, we live in a world and I think...all of us are products of that world and understand things that are going on with it.  And I think it would just not be right to say that the trends in what people think and societal attitudes don't affect what the Court does."

ADL

July 3, 2013 in Current Affairs, Preemption | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Distributive Justice in Action

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

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

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

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

ADL

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

Distributive Justice in Action

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

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

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

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

ADL

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

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)

Monday, October 15, 2012

NY Times Article on Chinese Drywall

On October 12, 2012, the New York Times reported on several decisions holding that Taishan Gypsum, the Chinese manufacturer of questionable drywall, was subject to personal jurisdiction in the United States.  Specifically, Judge Fallon in the federal MDL (located in Louisiana) and Judge Farina in the Miami Dade Circuit Court both ruled that Taishan Gypsum targeted the Florida market by "courting Florida companies, mailing drywall samples to Florida, [and] selling large amounts of drywall to Florida-based companies."

Even Congress has gotten involved and some members have introduced the Contaminated Drywall Safety Act that would insist the Chinese government force manufacturers to acquiesce to American jurisdiction.  So far, however, the bill has been passed only in the House.

The NY Times article is available here.

ECB

October 15, 2012 in Current Affairs, Environmental Torts, Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, July 9, 2012

NPR Interview with Ken Feinberg About His New Book

Wednesday, April 11, 2012

Sherry on Concepcion and Dukes

Suzanna Sherry (Vanderbilt) has posted a copy of her forthcoming article, "Hogs Get Slaughtered at the Supreme Court," on SSRN.  Here's the abstract: 

Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The tragedy is that the impact of each of these cases might have been avoided had the plaintiffs’ lawyers, the lower courts, and the dissenting Justices not overreached. In this Article, I argue that those on the losing side insisted on broad and untenable positions and thereby set themselves up for an equally broad defeat; they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win” – with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.

ECB

April 11, 2012 in Class Actions, Current Affairs, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, March 4, 2012

More Information on the BP Settlement

As I've been sifting through news report on the BP class action settlement, I've noticed that it's hard to find information on the actual settlement terms.  From what reporters are describing, it sounds like the parties are requesting that Judge Barbier certify two Rule 23(b)(3) classes.  The most comprehensive information comes from the BP Press release.  Here are a few of the most notable passages on the settlement's terms and conditions:

The proposed settlement is comprised of two separate agreements, one to resolve economic loss claims and another to resolve medical claims. Each proposed agreement provides that class members would be compensated for their claims on a claims-made basis, according to agreed compensation protocols in separate court-supervised claims processes. The proposed agreement to resolve economic loss claims includes the financial commitment for the Gulf seafood industry and a fund to support continued advertising that promotes Gulf Coast tourism. 

The proposed agreement to resolve medical claims involves payments based on a matrix for certain currently manifested physical conditions, as well as a 21-year medical consultation program for qualifying class members. It also provides that class members claiming later-manifested physical conditions may pursue their claims through a mediation/litigation process. Consistent with its commitment to the Gulf, BP would also provide $105 million to improve the availability, scope and quality of healthcare in Gulf communities. This healthcare outreach program would be available to all individuals in those communities, regardless of whether they are class members. It would include expanding capacity to address community health needs, including primary care, mental health services and access to environmental health specialists, as well as enhanced training and education related to Gulf Coast health issues.

Under the proposed settlement, class members would release and dismiss their claims against BP. The proposed settlement is not an admission of liability by BP. 

The proposed settlement also provides that, to the extent permitted by law, BP will assign to the PSC certain of its claims, rights and recoveries against Transocean and Halliburton for damages not recoverable from BP. 

The proposed settlement is subject to reaching definitive and fully-documented agreements within 45 days, and if those agreements are not reached, either party has the right to terminate the proposed settlement. Once there are definitive and fully-documented agreements, BP and the PSC would then seek the Court’s preliminary approval of the settlement. Under federal law, there is an established procedure for determining the fairness, reasonableness and adequacy of class action settlements. Pursuant to this procedure, and subject to the Court granting preliminary approval of both agreements, there would be extensive outreach to the public, including through advertisements and direct mail, to explain the settlement agreements, class members’ rights, including the right to “opt out” of the classes, and the processes for making claims. The Court would then conduct fairness hearings at which class members and various other parties would have an opportunity to be heard and present evidence. The Court would then decide whether or not to approve each proposed settlement agreement.
The proposed economic loss settlement provides for a transition from the Gulf Coast Claims Facility (GCCF) administered by Kenneth Feinberg. "Ken Feinberg has overseen the GCCF since it began operating in August 2010, and we thank him and his team for their dedication and professionalism," said Mr. Dudley. "During Mr. Feinberg's tenure, BP has paid approximately $6.1 billion to resolve more than 220,000 claims from individuals and businesses through the GCCF." 

A court-supervised transitional claims process for economic loss claims will be in operation while the infrastructure for the new settlement claims process is put in place. During this transitional period, the processing of claims that have been submitted to the GCCF will continue, and new claimants may submit their claims. 

Payments in class action settlements typically are not made until after final approval of a settlement, but BP has agreed not to wait for final approval of the economic loss settlement before claims are paid. The economic loss claims process will continue under court supervision before final approval of the settlement, first under the transitional claims process, and then through the settlement claims process established by the proposed economic loss agreement.

ECB

March 4, 2012 in Current Affairs, Environmental Torts | Permalink | Comments (1) | TrackBack (0)

Friday, January 20, 2012

California Lawsuit Reform and the Need for Court Funding

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

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

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

BGS 

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

Tuesday, December 13, 2011

Financiers as Monitors in Nonclass Aggregation

I recently posted a working draft of a new piece titled "Financiers as Monitors: Unbundling Agency, Risk, and Reward in Aggregate Litigation" on SSRN.  The thurst of the piece is that courts will certify fewer and fewer class actions after Wal-Mart Stores, Inc. v. Dukes and AT&T Mobility v. Concepcion.  When cases are economically viable en masse, they're likely to proceed as mass torts currently do, as nonclass aggregation (think Vioxx).  This means that the ethically questionable practices in mass tort litigation (i.e., threatening to withdraw from representing clients who refuse to accept a proposed settlement offer) will invade protypical class action areas like employment discrimination, civil rights, and toxic torts.  

The basic gist of the proposal is that third-party funders could perform a monitoring function in large-scale nonclass litigation and that by unbundling the attorney's role as a financier from that as an advisor, she could be a more faithful agent.  Financiers would contract with plaintiffs for a portion of the litigation's proceeds on a nonrecourse basis.  They'd then negotiate the fee arrangement with the plaintiffs' attorneys, preferably on a billable hour rate (plus, perhaps some small percentage of the proceeds as a successful litigation bonus).  My hope is that this would both reduce the need for monitoring by alleviating the financial tension that a contingent-fee relationship injects and create a viable monitor in the financier. 

Here's the SSRN abstract:

This Article offers a new way to monitor large-scale litigation that proceeds outside the bounds of Rule 23. Although class actions receive all the scholarly attention (and public scorn), after the Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, the class action’s existence is limited, at best. The shadowy world of nonclass aggregation, where attorneys threaten to pull the rug out from under their own clients if they refuse to accept a settlement, will take its place. Despite the attorney overreaching and questionable ethics that have emerged as attorneys scramble to patch together the finality that class certification once afforded, there is no substitute for the judicial monitoring that Rule 23 provided. In short, the nebulous world of mass-tort litigation will become the new operating model for all types of would-be class actions — from employment-discrimination claims to civil-rights litigation to toxic torts.

The answer to this conundrum comes from an equally controversial source: alternative litigation financing. You see, litigating massive cases can take a small fortune, which is fronted by the contingent-fee attorney. And it is the prospect of complete financial ruin that drives plaintiffs’ attorneys to act unethically and coerce clients into settling. Thus, if a third party bore the financial risk, the attorney could be a faithful agent again. But alternative litigation financing, where hedge funds and venture capitals invest in and profit from litigation, raises plenty of ethical issues on its own and has its own cadre of critics. Although wedding the two is bound to spark fireworks, this Article seeks to carefully engineer their union such that it benefits society as a whole and plaintiffs in particular.

This draft is still in its very early stages, so I'd certainly welcome any thoughts or comments on it (eburch[at]uga.edu).

ECB

December 13, 2011 in Class Actions, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2011

Fight Ensures over Attorneys' Fees in BP Oil Spill MDL

Yesterday's NY Times had an article by John Schwartz titled, "Plaintiffs' Lawyers in a Bitter Dispute Over Fees in Gulf Oil Spill Cases."  The article chronicles the now typical battle over attorneys' fees in multidistrict litigation where judges compensate Plaintiffs' Steering Committee members from other attorneys' fee awards.  This dispute is particularly bitter; the steering committee is asking for fees not just from those involved in the federal multidistrict litigation, but from those who negotiated their own recoveries from the privately administered Gulf Coast Claims Facility.

ECB

December 5, 2011 in Current Affairs, Environmental Torts, Ethics, Lawyers | Permalink | Comments (0) | TrackBack (0)

Thursday, September 29, 2011

"Hot Coffee" Film Director and Producer Susan Saladoff at Southwestern Law School

On this Monday, October 3, Susan Saladoff, the Director and Producer of the HBO film, Hot Coffee: Is Justice Being Served?, will speak at Southwestern Law School in Los Angeles, as part of Southwestern's Treusch Public Service Lecture Series.  Prominent plaintiffs' attorney and Southwestern alum Brian Panish will also offer commentary.  The film will be shown at 6:00 p.m., followed by the presentations at 7:30 p.m. and a reception afterwards.  The event is free, but parking is $8.  Space is limited, and an RSVP is necessary to attend; RSVP to deansoffice@swlaw.edu or 213-738-6710.  Here is the flyer, and here is additional information about the event and lecture series.

BGS

September 29, 2011 in Current Affairs, Food and Drink, Products Liability | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 30, 2011

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

August 30, 2011 in Class Actions, Conferences, Current Affairs | Permalink | Comments (0) | TrackBack (0)