Sunday, April 3, 2011
With the Supreme Court hearing oral arguments in Wal-Mart Stores, Inc. v. Dukes last Tuesday, there's a good bit of focus from around the web on the individualized hearings aspect of Randall v. Rolls-Royce Corp., a Seventh Circuit opinion decided on March 30, 2011. In Randall, Judge Posner affirmed the denial of class certification for a Title VII and Equal Pay class action because plaintiffs' were inadequately represented and because backpay would require individualized hearings.
What was most interesting to me about the case, however, was its tie-in to Smith v. Bayer Corp., which is still pending before the Supreme Court. Recall that Smith v. Bayer Corp. presents the question of whether to afford preclusive effect to a federal court's decision not to certify a class.
In Smith v. Bayer, I found two things troubling about the Eighth Circuit's opinion below (In re Baycol Products Liability Litigation). First, the appellate court suggested that plaintiffs should've intervened in the first suit to preserve their right to appeal, but, because the class was never certified, no notice was ever sent out to the class members. How should the plaintiffs have known to intervene without any formal notice that the lawsuit was pending?
Second, although the class was never certified, the appellate court nevertheless claimed that the plaintiffs were adequately represented. This is odd. Parties can be bound to a decision when they were parties to the previous suit, in privity with those parties, or were adequately represented. Putative class members are generally not considered parties to a suit until the class has been certified; here, the plaintiffs in the second suit were not the named plaintiffs in the first suit.
Similarly, it's hard to see how the parties in the second suit were adequately represented in the first suit. Can a court really conclude that a putative class was adequately represented when it chooses not to certify the class and it's the certification decision that operates to legitimize the actions of the class representatives and class counsel to act on behalf of the class? This also raises personal jurisdiction questions. Following the rationale from the Supreme Court's opinion on personal jurisdiction in Phillips Petroleum v. Shutts, it's hard to see how the second plaintiffs would be bound by the federal court's decision not to certify the class. In Shutts, the court likened the failure to opt out of a (b)(3) class to consent to jurisdiction. Courts have long held that plaintiffs consent to personal jurisdiction by submitting their claims to the court. So, by failing to opt out, the plaintiffs effectively "consented." But in the Baycol litigation, there was no certification, thus no chance to opt-out, thus no consent. From that, it would seem that there was no personal jurisdiction (one of the questions certified in Smith v. Bayer). Likewise, this seems to put us quite close to the doctrine of virtual representation that the Supreme Court struck down in Taylor v. Sturgell.
The logical question that follows shows just how slippery the Eighth Circuit's reasoning was in In re Baycol and it's also the tie-in to the Seventh Circuit's opinion in Rolls-Royce: What is the preclusive effect of a decision not to certify the class when class counsel is incompetent? Can a court really say that the class was adequately represented after it explicitly finds that adequacy isn't met?
The Seventh Circuit in Rolls-Royce took great pains to explain how plaintiffs' counsel dropped the ball, picked poor class representatives, and did not diligently pursue the case. Should this effort and the resulting decision not to certify the class really preclude subsequent attorneys from trying to certify a similar class? Granted, the district court in Rolls-Royce also granted summary judgment to the defendants, so these circumstances are a bit different, but it doesn't take much imagination to see the harm that could result from the Eighth Circuit's reasoning.
Tuesday, March 29, 2011
Monday, March 28, 2011
Though Dukes v. Wal-Mart Stores, Inc. concerns employment discrimination as opposed to mass torts, it has the potential to change Rule 23(a)'s class certification standard across the board. So, for those of you who have been following the case, Adam Liptak has an interesting article in today's New York Times on the evidentiary questions concerning social framework evidence that lies at the heart of the Dukes controversy.
For other commentary on tomorrow's oral argument, here's a link to Sarah Crawford's ACS post.
Tuesday, February 15, 2011
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.
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
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
8-8:30 am: Breakfast
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
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
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.
Monday, January 17, 2011
I hope are readers are having a good MLK day and that your employer gave you the day off in observance!
Benyamin Applebaum of the NY Times has an article on litigation funding in torts - the first story there is of a Vioxx plaintiff. See the article here.
For a very insightful take on litigation funding, in particular arguing that it is a good way to disgorge the appropriate amount from the defendant rather than permitting the defendant to get a discount because of plaintiffs economic situation, see Steven Gillers post at the Legal Ethics forum here.
Readers interested in this topic might also want to take a look at Maya Steinitz, Whose Claim is this Anyway? Third Part Litigation Funding, available on SSRN.
Tuesday, December 14, 2010
The American Tort Reform Association each year releases a report on the jurisdictions that it considers the most plaintiff-friendly in the nation. The 2010 honorees are (1) Philadelphia, (2) California, particularly Los Angeles County and Humboldt County, (3) West Virginia, (4) South Florida, (5) Cook County, Illinois, and (6) Clark County, Nevada. The additional "watch list" includes traditional favorites Madison County, Illinois; Atlantic County, New Jersey; St. Landry Parish, Louisiana; and St. Clair County, Illinois; as well as the District of Columbia, New York City and Albany, New York.
Is it just me, or does the "hellhole" label feel outdated? Of course some jurisdictions tend to be more favorable for either plaintiffs or defendants, given that there are meaningful variations in laws, jury demographics, and judicial selection processes. That's why forum-shopping won't disappear anytime soon as a favorite activity of litigation strategists. But the heyday of the "magnet courts" in Madison County, the Gulf Coast, and the Rio Grande Valley seems like a long time ago. Not only has the tort reform movement been successful at achieving changes in Madison County and other jurisdictions, but CAFA has made it easy to remove large-scale class actions to federal court and thus has reduced concerns about certification of nationwide class actions in state courts.
ATRA's 2010 list is weighted toward some of the biggest legal markets in the U.S.: Philadelphia, Los Angeles, Miami, Chicago, New York and Washington. This gives the report a different flavor. Rather than primarily calling attention to relatively small counties with truly renegade judges and juries, the 2010 report seems heavily focused on cases in which judges conducted consolidated trials, denied motions to dismiss, or otherwise took actions that were not in defendants' favor.
To those who follow mass tort litigation, it is interesting to see which jurisdictions are perceived by defendants and the insurance industry as the most threatening. For this, the ATRA report is worth reading, even if it is anecdotal rather than data-driven. But the hyperbole of the "hellhole" label gets in the way of taking the report as seriously as its proponents would like.
Friday, December 10, 2010
This term the Supreme Court has granted cert in three class action cases and each case has a far reach. Depending on what the court does with these cases, the world of complex litigation could be dramatically changed. These aren't really mass tort cases, but the topic is tangentially related to ours so here goes, gentle readers. If you are not interested in this stuff, surf on.
As we've been discussing on this blog, the Wal-Mart class action presents the court with the opportunity to rethink the requirements of 23(a) (how much do class members have to have in common for a class action to be certified) and 23(b)(2) (can any money damages claims be included?). The Baycol case presents the court with the question of whether certification determinations are preclusive. And the Concepcion case presents the question as to whether arbitration agreements barring class actions cannot be struck down based on state law contract doctrine -- in other words, must they be upheld under the FAA?
If the court follows its current trend of limiting class actions, by June we will be living in a world where the commonality requirement is very strict (class members will have to show that their common questions of law and fact also have common answers), if they fail to certify their class they'll be precluded from trying again, perhaps even if they were not class representatives, and consumers will be almost universally barred from bringing class actions (because what company in its right mind would choose not to have an arbitration provision barring class treatment?).
Monday, December 6, 2010
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.
Tuesday, November 23, 2010
Last week, District Judge James Selna refused to dismiss the economic injury claims by Toyota owners who alleged that the unintended acceleration problems caused a decrease in their cars' value. The multi-district litigation includes more than 200 economic injury class actions and around 100 personal injury and wrongful death claims. Judge Selna will consider Toyota's motion to dismiss the cases alleging wrongful injury and death on December 9. Here's a link to the National Law Journal story.
Saturday, November 20, 2010
Reading yesterday’s New York Times article on the 9/11 Workers Settlement, I couldn’t help but think of the other-regarding preferences and psychological influences that played a role in garnering the requisite 95.1% agreement. The two claimants quoted in the article, Jennifer McNamara (whose firefighter husband died of colon cancer last year) and Kenny Specht, a retired firefighter with thyroid cancer, both framed their ultimate decision to participate in the settlement in terms of helping others within the community of plaintiffs. As described by the N.Y. Times, McNamara “explained to friends in a letter that she did not want to delay the settlement for the many plaintiffs who needed it to pay mortgages and medical bills.” Specht said, “I am not sure that holding out for a better offer will ever be something that is attainable.”
I’ve written about this internal group pressure in the past and how claimants might be able to use it to their benefit as opposed to lawyers using it for theirs. It does appear that Napoli Bern Ripka LLP held at least one town hall meeting (video footage available below), but I’m not sure whether claimants were encouraged or given opportunities to discuss the deal with one another or whether the lawyers did most of the talking. Given the claimants geographical proximity to one another in the 9/11 Workers Settlement as well as the closeness of the firefighting and police officers’ communities, it appears that altruism, reciprocity, and a concern for others' well-being within their community played a significant role in members’ decision to approve the settlement (though the settlement did not receive the 100% approval rate that would have paid out $712 million). Others simply appeared to be exhausted by the protracted litigation and wanted finality. Still others, at least 520 of them, opted out (or did not respond by the deadline). A New York Times article last August described several plaintiffs' difficult decision-making process.
Although the House of Representatives has approved a bill that would reopen the 9/11 Victim’s Compensation Fund, the Senate has yet to approve it and those who have signed on to the 9/11 Workers Settlement will be ineligible for compensation.
Here's a link to Napoli Bern's press release (with the percentage of claimants signing-on in each tier).
Wednesday, November 10, 2010
The Supreme Court heard oral arguments yesterday in AT&T Mobility, LLC v. Vincent Concepcion, a case that will determine whether states can require businesses to include certain procedures (like class-wide arbitration) in their arbitration agreements. The "plain English" translation by SCOTUSblog is: "Does the Federal Arbitration Act prohibit states from mandating that class arbitration be available as part of every arbitration agreement?"
Tuesday, November 2, 2010
Vanderbilt Law Review En Banc is pleased to present its latest Roundtable on Dukes v. Wal-Mart Stores, Inc.. Professor Elizabeth Burch’s introductory piece lays the foundation for the debate. Professors Robert Bone, Alexandra Lahav, Greg Mitchell, and Richard Nagareda are providing their “first takes” on the case. We hope you find the Roundtable informative and engaging.
Elizabeth Chamblee Burch, Introduction: Dukes v. Wal-Mart Stores, Inc., 63 Vand. L. Rev. En Banc 77 (2010).
Robert G. Bone, Sorting Through the Certification Muddle, 63 Vand. L. Rev. En Banc 105 (2010)
Alexandra D. Lahav, The Curse of Bigness and the Optimal Size of Class Actions, 63 Vand. L. Rev. En Banc 117 (2010).
Gregory Mitchell, Good Causes and Bad Science, 63 Vand. L. Rev. En Banc 133 (2010).
Richard A. Nagareda, Common Answers for Class Certification, 63 Vand. L. Rev. En Banc 149 (2010).
We've dedicated the Roundtable to Richard Nagareda, whose essay appears in the Roundtable with only light edits from the editors. As the "table setter," I can say that this is truly a wonderful group of authors. I look forward to reading each of their essays and hope that you'll find them interesting and thought-provoking, too.
Friday, October 29, 2010
In an article by Jim Snyder on Bloomberg news, Kenneth Feinberg defends the legal system especially for ordinary cases:
“I happen to believe, in the run-of-the- mill, everyday life in America, the legal system works pretty well.”
The American Lawyer's D.M. Levine reports that the Fred Bartlit investigation into the Deepwater Horizon oil spill found that "despite multiple test results showing that a cement-foam mixture meant to seal the bottom of the well was unstable, Halliburton and BP used the flawed material anyway." The National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling asked Fred Bartlit, a named partner in a Chicago litigation boutique, to lead the investigation into the Deepwater probe. Bartlit's letter to the Commission is available here.
Monday, October 25, 2010
Vanderbilt University has scheduled a celebration of Professor Richard Nagareda's life for November 12, 2010 at 4:00 p.m. in the Law School's Flynn Auditorium. The Vanderbilt Hustler provided the following information last Friday:
The event will have limited seating. Parking for visitors will be available in Lot 5B, which is located directly across from the law school at the intersection of 21st Avenue and Broadway.
Friends, alumni and former colleagues are invited to honor Nagareda by sending tributes via email to firstname.lastname@example.org for posting on a special tribute website here or at http://law.vanderbilt.edu/alumni/richard-nagareda-tributes/index.aspx. Or mail your message or a letter of condolence with a note indicating whether you’d like your tribute posted online or only forwarded to Nagareda’s family to:
Vanderbilt University Law School/Nagareda Memorials
131 21st Ave. South
Nashville, TN 37203
The law school has also created a memorial scholarship fund established at the family's request. You can donate by clicking here or by sending a donation to the address above.
Sunday, October 10, 2010
I was deeply saddened to learn that Richard Nagareda (Vanderbilt) passed away this past Friday. Although I won't repeat what Howard Erichson has already posted, I wanted to write separately to express what a truly wonderful friend and mentor Richard has been to me and to many other junior scholars in the field. Despite his constantly packed schedule, he always made time to read and comment on my work and would inevitably send the most detailed and thoughtful comments that one could ever hope for. I remember having dinner with him this past June during the AALS Civil Procedure Mid-Year Meeting and telling him how amazed I was that, five years ago when I'd just entered the academy, he'd taken the time to respond to my timid e-mail introducing myself. As someone who had read his work for years, I was even more amazed that he took the time to read mine and offer his insights.
It's an honor to have known Richard; he's touched the lives of so many. He was a powerhouse in the field and in the classroom. He is truly beloved. We will miss him dearly.
Thursday, October 7, 2010
The Supreme Court granted cert in yet another class action case (Smith v. Bayer Corp., No. 09-1205) to determine whether a federal judge can enjoin plaintiffs from bringing an economic injury class action in a state court after a federal court declined to certify the class. The Anti-Injunction Act, 28 U.S.C. 2283, provides that, subject to three important exceptions, a federal court may not grant an injunction to stay proceedings in state courts. Those exceptions include where Congress expressly authorizes the injunction, where it's in necessary aid of the federal courts jurisdiction, or to protect and effectuate federal judgements. Should one of the exceptions apply, the All Writs Act provides the positive authority for federal courts to enjoin state court proceedings.
Some of the most famous class action injunction cases to date include:
(1) the Third Circuit's In re General Motors Corp. Pick-Up Truck Fuel Tank Products Liability Litigation, a 1998 case in which the Third Circuit refused to enjoin a Louisiana state court from certifying and settling a class where the Third Circuit had previously reversed the finding that the settlement was fair;
(2) the Fifth Circuit's decision in In re Corrugated Container Antitrust Litigation, where the Fifth Circuit approved the use of two exceptions in the Anti-Injunction Act to prevent a group of South Carolina plaintiffs from certifying similar antitrust claims in South Carolina because they attempted to escape the preclusive effect of a federal-court judgment approving the class settlement; and
(3) Judge Weinstein's opinion in In re Joint Eastern and Southern District Asbestos Litigation in which he invoked the exceptions to effectuate a limited fund class action settlement under Rule 23(b)(1)(B).
In Smith v. Bayer Corp., the Eighth Circuit affirmed the trial court's ruling that prevented Baycol plaintiffs from bringing another economic injury class action in West Virginia state court after the federal judge overseeing the MDL proceedings already denied class certification on similar issues. Keith Smith and Shirley Sperlazza, the petitioners, argued that they weren't parties to the federal case and didn't know about the lawsuit. They also argued that they were asserting a common-law fraud claim under West Virginia law, which the federal plaintiffs did not assert.
The BNA Class Action Litigation Report (subscription required) has a nice write-up of the issues in the case, including the injunction and personal jurisdiction issues. Here are links to the Petition for Certiorari, the Brief in Opposition, and the Petitioner's Reply (courtesy of SCOTUSblog).
Monday, September 27, 2010
Though I realize that, as an employment discrimination class action, Dukes v. Wal-Mart Stores, Inc. technically falls outside the realm of mass torts, its class action status has most proceduralists watching with interest to see whether the Supreme Court will grant Wal-Mart's petition for a writ of certiorari. Over the next two months, Vanderbilt Law Review En Banc will be hosting a Roundtable discussion on the case that includes Robert Bone, Melissa Hart, the blog's own Alexandra Lahav, Greg Mitchell, Richard Nagareda, and Tobias Wolff. (Richard's essay, Common Answers for Class Certification is already on SSRN.)
To set the table for that discussion, I've written a short introduction to the case itself. To that end, I've tried to provide enough legal background on the class certification issues so that someone who's interested in the case but isn't a class action enthusiast can understand what's at stake. I've also raised more questions than answers, forsaken many of the more nuanced arguments in favor of clarity, and tried to refrain from engaging the case's merits--as tantalizing as they are. This short thirteen-page piece might also be of interest to those who haven't had time to wade through the Ninth Circuit's 130+ page opinion. Here's a link to the SSRN page for "Introducing Dukes v. Wal-Mart Stores, Inc." I'll post a link to the edited version in a few weeks.
Thursday, August 12, 2010
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:
Wednesday, August 11, 2010
Yesterday the Judicial Panel on Multidistrict Litigation issued its much awaited opinion sending the BP Oil Spill cases to New Orleans Judge Carl J. Barbier. These cases include 77 cases from Louisiana, Alabama, Florida, Mississippi, and Texas. As the Panel explained in its short opinion, "if there is a geographic and psychological 'center of gravity' in this docket, then the Eastern District of Louisiana is closest to it." (Op. at 3)
This decision makes it much easier for plaintiffs to participate in the litigation process. Participating in the court process and in any plaintiffs' group meetings is an important part of procedural justice. As Ken Feinberg explained in administering the September 11 Victim Compensation Fund, "[g]iving people the opportunity to be heard is very important in helping them cope and move on the best they can." (Tracy Breton, Payments Pending for Fire Victims, Providence J. Bull. Aug. 3, 2008, at 1) The same is true for the oil spill victims. Although people litigate for various reasons including money, I suspect that holding BP publicly accountable is certainly part of the motivation behind these suits.
The Panel sent the shareholder litigation cases to Judge Keith P. Ellison in Houston.