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 email@example.com 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.
Tuesday, August 10, 2010
Today's National Law Journal has an article about the two new trustees named to BP's $20 million fund: Kent Syverud is currently the dean of Washington University School of Law and is a former dean of Vanderbilt University Law School; John Martin, Jr. is now a partner at Martin & Obermaier in New York and served as a judge in Southern District of New York from 1990-2003. Here's a link to BP's statement.
Friday, July 23, 2010
Next week, on July 29, the Multi-district Litigation Panel, a panel comprised of seven judges throughout the country, will gather to determine where to transfer the cases filed against BP arising from the oil spill. (In re: Oil Spill by the Oil Rig "Deepwater Horizon" in the Gulf of Mexico, on April 20, 2010, MDL No. 2179) The cases on the docket include around 24 from Alabama, 10 from Florida, 33 from Louisiana, 8 from Mississippi, and 2 from Texas.
Despite the spate of new articles, the story hasn't changed much in the past few months. Plaintiffs' attorneys are, by and large, pushing for New Orleans where they suspect that a potential jury pool would be hostile to the oil industry. And, not surprisingly, defendants are pushing for a Houston venue, in the heart of the oil industry. Much the same scenario plays out in less high-profile cases on a regular basis.
Plus, the MDL Panel doesn't always choose a side. For example, the MDL Panel in the In re Silicone Gel Breast Implant Products Liability Litigation in the early 1990s sent the cases to the Northern District of Alabama despite a push by plaintiffs for the Northern District of California or the District of Kansas and a push by defendants (and a few plaintiffs) for the Southern District of Ohio. Of course, just as in BP's case, the litigants in the Breast Implant litigation urged the Panel to appoint a particular judge (i.e., Judge Henderson or Patel in the Northern District of California or Judge Kelly from Kansas). Back then, the Panel noted in its order that either Ohio or California would be an appropriate forum, but it was "troubled" "by the volume and tone of the negative arguments with which opposing counsel have sought to denigrate each other's forum choices, litigation strategies, and underlying motives." 793 F. Supp. 1098 (JPML 1992).
The same logic seems to apply with equal force to the BP oil spill litigation, so it wouldn't come as a huge surprise if the Panel rejected Louisiana and Texas as a forum. That said, as someone who's written about the value of process and, in particular, about the value of participating in process as a vital component of procedural justice, I would hope that the Panel's forum selection wouldn't undermine the ability of those plaintiffs with fewer resources to participate. And by "plaintiffs" I do mean the plaintiffs themselves, not just their attorneys who will certainly participate regardless of where the lawsuits land.
Wednesday, June 16, 2010
The NYTimes reports that BP has agreed to set aside $20 billion for a compensation fund. Ken Feinberg will be the independent administrator. In the last ten years Feinberg has become the gold-standard of mediators and administrators.
If you're worried about whether BP can pay, its operations garnered $27.7 billion in cash last year. It had about $24 billion in debt with a debt to equity ratio of 20%.
The NYTimes feature Room for Debate addresses the oil spill today with entries by the following:
- Zygmunt Plater, environmental law professor
- Alice Schroeder, former regulator, Financial Accounting Standards Board
- Kate Gordon, Center for American Progress
- Richard Nagareda, law professor
- Alex Tabarrok, economics professor
- Noah Hall, environmental law professor
Monday, June 14, 2010
When the 9/11 Victim Compensation Fund was created it was widely considered a one time, unique institution responsive to the particular national tragedy (and the risk to the airline industry of catastrophic liability). It looks like the Obama administration is trying to negotiate the creation of a similar fund with BP to pay the victims of the oil spill.
It is still not clear whether the fund will happen, how much money will be available, and whether participants will have to give up their legal claims as the participants in the 9/11 Fund did. But some choice quotes from an AP report published today indicate that this is in the offing.
The NY Times also reports on the proposed fund. The Times reports that "Administration officials said that since last week, White House lawyers have been researching Mr. Obama’s legal authority to compel BP to set aside money for claims, based on the 1990 Oil Pollution Act." However, the President's authority is not clear. The desire for such a fund is driven by the concern about BP's 10+ billion dollar dividend. Joseph Grundfest (Stanford) is quoted in the Times: "“I’m not aware of any legal precedent that would give the government any authority that would preclude British Petroleum from paying dividends" especially because there isn't any evidence that BP lacks the funds to pay for the damages caused by the spill. The Times also quotes John Coffee (Columbia) stating that the courts may have the power to issue an injunction to prevent BP from paying the dividend under some circumstances.
Monday, May 17, 2010
Recent crises stemming from BP's oil spill and Toyota's acceleration problems have brought a swarm of media coverage, congressional hearings, regulatory agency activity, corporate news conferences, and lawsuits. Indeed, theories of liability may stem not only from the initial traumatic incident or incidents, but from the corporation's putative mishandling of the crisis once it unfolds. On the corporate side, what's called for is thoughtful and coherent crisis management that moves the corporation through the crisis in a way that resonates with corporate core values, thereby maintaining the value of the ongoing enterprise, and that is mindful of impending theories of liability.
Despite the great need for such a coherent approach to mass tort crisis management, what's remarkable is the apparent paucity of attention given the subject by legal scholars. That may be because crisis management involves public relations and communications, as well as management and leadership; hence crisis management has been the focus of public relations consultants and some professors in communications schools and business schools. But at the heart of corporate crises are frequently the law and liability, so law professors should not be absent. Lawyers and law firms already occasionally promote their ability to handle an emerging corporate crisis by quickly assembling a team of lawyers from a broad array of areas -- see, e.g., Skadden's Crisis Management; and lawyer practitioners have delivered various continuing education talks and papers on crisis management, as well as an interesting short symposium paper by Harvey L. Pitt and Karl A. Groskaufmanis, When Bad Things Happen to Good Companies: A Crisis Management Primer, 15 Cardozo L. Rev. 951 (1994). But while practitioners bring on-the-ground expertise, they may lack the theoretical depth and interdisciplinary zeal of law professors, and practitioners present a conflict-of-interest risk in preferring, for example, fee-heavy litigation over other methods of mass tort crisis management and resolution. A full academic account of mass tort crisis management would entail an awareness and integration of various legal areas -- tort, procedure, litigation, ethics, regulatory action, congressional investigations and activity (including possible compensation funds), and pertinent constitutional issues -- with public relations and management. I look forward to turning my attention increasingly to that task.
Where do you look for corporate crisis management expertise in mass torts? Books, articles, law firms, or consultants? Does your law firm market itself as offering corporate crisis management; if so, what's your approach? If you work at a consulting group that does crisis management, do you have in-house lawyers that assist you or do you work with the corporation's outside counsel? Feel free to post a resource or comment.
May 17, 2010 in Aggregate Litigation Procedures, Current Affairs, Environmental Torts, Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship, Procedure, Regulation, Vehicles | Permalink | Comments (0) | TrackBack (0)
Tuesday, January 19, 2010
Back in November of 2008, England and Wales asked Lord Justice Jackson to review civil litigation costs and how those costs affected access to justice. He recently issued his final report (a hefty 584 pages). BBC News calls the report a "radical plan[ ] to shake up costs of civil cases." Here's an excerpt of the story:
Lord Justice Jackson's Review of Civil Litigation Costs is a result of a recognition that it is simply too expensive for many people and small companies to bring or defend civil cases.
"What I want to do is to focus the system so less money is paid to intermediaries and others in the process, and more money is paid to victims," he told the BBC.
"I am concerned about individuals, small businesses and others who need to use the courts."
His proposals are radical. He has looked at the factors forcing costs up in civil actions, and in particular he has focussed on Conditional Fee Agreements (CFAs), more commonly known as "no win, no fee" agreements.
Despite BBC's headline, the final report was ultimately less radical than the preliminary one, which leaned toward abolishing England's cost-shifting "loser pays" rule. The final report concludes that cost shifting should remain the norm (even in collective actions), but excepts personal injury claims from the norm. Whether personal injury claims are brought individually or collectively, the final report recommends "qualified one-way costs shifting" where winning claimants could recover their costs from the defendant, but generally do not have to pay the defendant's costs if they lose.
Of additional import, the final report recommends that solicitors and barristers should be allowed to enter into contingency fee arrangements, which are currently prohibited. Before entering into such an arrangement, the report recommends that claimants receive independent advice. It also suggests capping the fees at 25%.
Finally, the report recommends making third-party funding available to personal injury claimants (including those involved in collective actions). It defines third party funding as "The funding of litigation by a party who has no pre-existing interest in the litigation, usually on the basis that (i) the funder will be paid out of the proceeds of any amounts recovered as a consequence of the litigation, often as a percentage of the recovery sum; and (ii) the funder is not entitled to payment should the claim fail." (Final Report at p. 17). Very interesting.