Wednesday, April 20, 2011

The Japanese Liability System & Mass Disasters

I just saw a summary of a talk at Columbia Law School by Curtis Milhaupt, an expert on Japanese Law.  Here's what he says about liability for Tokyo Electric Power Co. (TEPCO):

Japanese law provides for strict and unlimited liability for a nuclear plant operator except for damages caused by a “grave natural disaster of exceptional character, which Milhaupt said would seem to apply here.
 
“To an American lawyer, if this doesn’t constitute a grave natural disaster, I don’t know what would,” said Milhaupt, an expert on Japanese law. “But very interestingly, several government officials came out shortly after the accident and said this exception does not apply.”
 
Even if Tepco were to claim the exception did apply, Milhaupt said that could create problems for the company. “The public anger at Tepco is so great that this may be a pyrrhic victory.”
 
Milhaupt, the Parker Professor of Comparative Corporate Law and Fuyo Professor of Japanese Law, said that suits may also be brought under Japanese corporate and securities laws. “One could imagine suits brought against Tepco by investors for misleading disclosure with respect to its crisis management systems,” said Milhaupt. He added that Tepco’s board of directors might also be sued for ignoring signs that its disaster prevention systems were woefully inadequate.

This could drive TEPCO into bankruptcy, but it won't because TEPCO is too big to fail. Milhaupt says

“Bankruptcy for Tepco is extremely unlikely. It’s too important a company for Japan and the impact on the other power companies would be too great,” Milhaupt said. “Whether through nationalization, or through capital injections, the bottom line is the Japanese government will have to support Tepco for years to come.”
ADL

April 20, 2011 in Current Affairs, Environmental Torts, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 19, 2011

The New, New Opt-Out

As all class-action enthusiasts know, neither plaintiffs lawyers nor defendants like for class members to exercise their opt-out rights.  Opting out from the plaintiffs' attorneys' perspective diminishes their fee award and undermines their ability to deliver total peace to the defendant; the defendant wants finality and closure, which opt outs undermine.  So, lawyers developed mechanisms to thwart class members from opting out, such as including walk-away provisions, liens on the defendants' assets in favor of those remaining in the class, and most-favored-nation provisions in the settlement.

Recently, attorneys have begun settling mass-tort cases outside of the class-action process.  (As most of you know, CAFA makes it increasingly difficult to certify mass-tort cases as Rule 23(b)(3) class actions--not that they were ever easy.)  Merck settled the Vioxx litigation by contracting with the plaintiffs' attorneys and requiring those law firms to recommend the deal to 100% of their clients (with the caveat that the plaintiffs' attorneys deemed the settlement in their clients' best interests), and to withdraw from representing those clients who refused.  Moreover, Merck could walk away from the deal if fewer than 85% of the claimants signed on.  Thus, while claimants technically opted "into" the settlement offer, realistically claimants had to opt out of their lawyer-client relationship if they didn't want to settle.  

Yesterday's article in the NY Times by John Schwartz and Cambell Robertson, "Many Hit by Spill Now Feel Caught in Claims Process," illustrates the new, new opt out: plaintiffs' lawyers are claiming to represent clients who have never consented to an attorney-client relationship.  Consider this excerpt from the article:

Last summer and fall, numerous Vietnamese households — including some who say they were not even affected by the spill — received letters signed by Mr. Watts, of San Antonio. The letters, in Vietnamese, addressed some recipients by name and others as: “Dear Client.” The letters directed people to send their financial records and added, “Do not sign anything from BP or anyone else except Watts Guerra Craft,” the name of the firm.

“As far as I know almost every other house got it,” said Felix Cao, a law student at Loyola University in New Orleans. “I don’t know how they even found my address.”

Mr. Cao said he did not know whether he had become a client or simply a marketing target. He said he was not affected by the spill.

Nor was Nga Nguyen, who lives in New Orleans and also received one of the letters. “I think they just went through the phone book,” she said.

Let me be clear: the Gulf Coast Claims Facility is a private compensation scheme set up by BP.  The claims pending before Ken Feinberg are NOT class actions.  Thus, no attorney-client relationship exists absent either class certification and a judicial determination that lawyers are adequately representing absent clients (in the MDL pending before Judge Barbier) or an individual's affirmative consent to enter into an attorney-client relationship.

Yet, if this is what attorneys are doing, the new, new opt-out requires "clients" to opt out of an attorney-client relationship they never formed.  The result is nothing short of lawless.  

ECB

 

April 19, 2011 in Aggregate Litigation Procedures, Current Affairs, Environmental Torts | Permalink | Comments (0) | TrackBack (0)

Sunday, March 27, 2011

Video for Mississippi College Law Review Symposium on BP Oil Spill

The Mississippi College Law Review has posted the video for its symposium, Beyond the Horizon: The Gulf Oil Spill Crisis -- Analyzing the Economic, Environmental, and Legal Implications of the Oil Spill. 

Panel One included Ms. Trudy Fisher, Executive Director, Mississippi Department of Environmental Quality; Professor Kenneth Murchison, James E. & Betty M. Phillips Professor, Paul M. Herbert Law Center Louisiana State University; and Professor David Robertson, W. Page Keeton Chair in Tort Law University Distinguished Teaching Professor, University of Texas at Austin.  The moderator for Panel One was Ms. Betty Ruth Fox, Of Counsel, Watkins & Eager.

Panel Two included Professor Jamison Colburn, Professor of Law, Penn State University; Professor Edward Sherman, W.R. Irby Chair & Moise S. Steef, Jr. Professor of Law, Tulane University; and myself.  The moderator for Panel Two was Professor Jeffrey Jackson, Owen Cooper Professor of Law, Mississippi College School of Law.

Kenneth Feinberg, claims administrator for the Gulf Coast Claims Facility, delivered the symposium Keynote Presentation.

Papers from the symposium will published in the Mississippi College Law Review.  Here's the abstract for my symposium talk and forthcoming article: 

The Gulf Coast Claims Facility set up following the BP Gulf Oil Spill might be seen as creating a new category of claims fund that might be termed a quasi-public mass tort claims fund.  Unlike purely public funds such as the 9/11 Victim Compensation Fund, or purely private funds such as are increasingly created for mass settlements as in Vioxx, the Gulf Coast Claims Facility is funded privately by BP, but bears the public imprimatur of having been initially negotiated by President Obama.  Indeed, in an Oval Office Address, President Obama promised that claims would be "fairly" paid and that the fund would "not be controlled by BP," but would instead be administered by an "independent third party."  While a quasi-public fund has the advantage of delivering swift compensation in response to an ongoing crisis, the quasi-public fund risks claimant confusion about claim-administrator independence and whether claimants should retain their own counsel to assist in evaluating fund settlement offers.  In turn, that claimant confusion can jeopardize the fund's societal savings in attorney-fee transaction costs, and lower claimant participation in the fund.  Accordingly, to minimize claimant confusion, a quasi-public fund should provide transparency in its fee structure for claims administrators, and seek a claims-administrator fee structure that minimizes bias, such as utilizing a fixed fee not subject to reevaluation or having defendant agree to a third-party panel's assessment of fees for claims administrators.  With regard to the Gulf Coast Claim Facility, claimant participation would likely be enhanced by greater transparency and use of a third-party panel to determine claim-administrator fees.

BGS 

March 27, 2011 in Aggregate Litigation Procedures, Conferences, Environmental Torts, Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship | Permalink | Comments (1) | TrackBack (0)

Saturday, February 26, 2011

BP Management Failures and the Gulf Oil Spill

Article in the Harvard Gazette -- Deep water, deep trouble.

BGS 

February 26, 2011 in Environmental Torts, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 16, 2011

Mississippi College Law Symposium on BP Gulf Oil Spill

On this Friday, February 18, Mississippi College School of Law will be hosting a law review symposium, Beyond the Horizon: The Gulf Oil Spill Crisis -- Analyzing Economic, Environmental, and Legal Implications of the Oil Spill.  Here's the short-form brochure:  Download MC Law Review Symposium Brochure.

Speakers include Professors Jamison Colburn (Penn State), Kenneth Murchison (LSU), David Robertson (Texas), Edward Sherman (Tulane), and Trudy Fisher (Miss. Dep't Envt'l Quality).  Moderators include Jeffrey Jackson (Mississippi College) and Betty Ruth Fox (Watkins & Eager).  Papers will subsequently be published in the Mississippi College Law Review.

I will also be speaking at the symposium, discussing issues of claim-administrator compensation, transparency, and independence in connection with the Gulf Coast Claims Facility.  My talk will expand upon my prior blog posts raising concerns (see here and here), which last summer triggered two articles in Forbes (see here and here), as well as a post from Legal Ethics Forum.  Two weeks ago, the federal MDL court overseeing the BP litigation granted in part plaintiffs' motion to have the court oversee communications by the Gulf Coast Claims Facility, and the MDL court ordered that the Gulf Coast Claims Facility may not state that it is "neutral" or completely "independent" of BP.  Here's the MDL opinion:  Download Order - Mot to Supervise GCCF Doc 1098 2-2-2011.  On the recent MDL opinion, see also this Reuters article from Moira Herbst, quoting David Logan (Roger WIlliams), Monroe Freedman (Hofstra), and me.

BGS

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

February 16, 2011 in Aggregate Litigation Procedures, Conferences, Environmental Torts, Ethics, Lawyers, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 1, 2011

Chevron's Use of U.S. Discovery to Aid Defense of Ecuadoran Environmental Litigation

AmLaw Daily has an interesting article on Chevron's use of 28 U.S.C. s. 1782, which allows U.S. discovery in aid of foreign litigation, in the ongoing litigation concerning alleged pollution in Ecuador.  The article is The Global Lawyer: The Mystery of the Ghostwritten Report, by Michael D. Goldhaber.

BGS

February 1, 2011 in Environmental Torts, Foreign, Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, January 20, 2011

Craig, Green, Klein, and Sanders on Toxic and Environmental Torts

West is publishing a new casebook, Toxic and Environmental Torts: Cases and Materials, by Robin K. Craig (Florida State), Michael D. Green (Wake Forest), Andrew Klein (Indiana-Indianapolis), and Joseph Sanders (Houston).

BGS

January 20, 2011 in Environmental Torts, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 12, 2011

Federal Commission Report on BP Gulf Oil Spill

More in the Wall Street Journal's article, Panel Faults Oil Firms, Calls for Better Oversight, by Tenille Tracy and Ryan Tracy. 



BGS

January 12, 2011 in Environmental Torts, Mass Disasters, Regulation, Resources - Federal Agencies | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 11, 2011

Southwestern Law School Symposium on International Law Ten Years From Now

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

BGS

January 11, 2011 in Conferences, Environmental Torts, Ethics, Lawyers, Mass Tort Scholarship, Procedure, Settlement | Permalink | Comments (0) | TrackBack (0)

Ken Feinberg Cover Story in ABA Journal

Reporter Terry Carter provocatively asks, "Is Ken Feinberg changing mass tort law?" in the article, The Master of Disasters

BGS

January 11, 2011 in Aggregate Litigation Procedures, Environmental Torts, Informal Aggregation, Lawyers, Settlement | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 21, 2010

Senate Considers 9/11 First-Responder Health Bill

As this article on CNN notes, the United States Senate continues to consider the proposed 9/11 first-responder healthcare bill, championed particularly by Senator Schumer of New York. 

BGS

December 21, 2010 in 9/11, Aggregate Litigation Procedures, Environmental Torts, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Thursday, December 16, 2010

U.S. Sues BP Over Gulf Oil Spill

Possible civil penalties range from $5.4 billion to $21 billion, and criminal charges might still be subsequently brought.  Here's the CBS television report from Jan Crawford:

 

BGS

December 16, 2010 in Environmental Torts, Mass Disasters, Regulation | Permalink | Comments (0) | TrackBack (0)

Monday, December 13, 2010

Feinberg to Pay "Bonus" for Release of Some Claims

John Schwartz at the New York Times reports that Ken Feinberg is offering to pay additional sums to those recipients of emergency funding willing to release their claims. Apparently people whose emergency funding fully compensated them can get an additional $5,000 for individuals and $25,000 to release their claims, promising BP that they will not sue.  Feinberg "suggested that the likeliest candidates for the payment might be those who had received emergency funds and had determined that their losses have already been fully covered by the BP fund, or who believe they will not be able to properly document further losses."

The article reports that the fund will provide free legal advice and perhaps additional help in filling out forms to claimants.

ADL

 

December 13, 2010 in Environmental Torts, Informal Aggregation, Lawyers, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 24, 2010

BP Oil Spill Fund's Final Phase

John Schwartz of the New York Times has an article in this morning's paper detailing the final settlement phase of the BP Oil Spill.  The claims handling process includes a three-year program that requires anyone who agrees to a final settlement to give up the right to sue BP and other companies involved with the spill.  Although the claims process is much quicker and, on the whole, has far fewer transaction costs than traditional litigation, we don't yet know what kind of long-term health effects the spill will have.    As was the case in asbestos, it's hard to predict what the latent health effects might be.

Of note in the article is a link to the 12-page document laying out the claims process as well as a 48-page memo by John Goldberg (Harvard), which argues that claims from people and businesses near the beaches but not directly affected by the spill would not be entitled to recover through the traditional litigation process.

ECB

November 24, 2010 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Monday, November 22, 2010

More Discussion of Ken Feinberg's Pay in BP Gulf Oil Spill Fund

Moira Herbst of Reuters has a short, but thoughtful piece analyzing the issues at play for a private claims administrator running a quasi-public claims fund.  It's easy to sympathize in the abstract with Ken Feinberg's difficult situation in exploring what's appropriate in his unprecedented role; but with his firm being compensated at an average of $1,000 per hour (according to Herbst's analysis), he's not ultimately likely to get much sympathy.

BGS

November 22, 2010 in Aggregate Litigation Procedures, Environmental Torts, Ethics, Lawyers, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

WTC Disaster Site Litigation Settlement - Results Announced Tomorrow

The results of how many plaintiffs signed on to the WTC Disaster Site Litigation Settlement, which required that 95% of the plaintiffs sign on for the settlement to go forward, will be announced at 1 PM tomorrow.   Click here to see docket & documents online.

Interestingly, the allocation neutral overseeing this aspect of the settlement adminsitration is from Ohio - Matthew Garretson.  His profile can be found here.  Here is the description of the firm's work on allocating settlement proceedings to claimants:

Perhaps the hallmark of our settlement allocation service, GFRG helps ensure that similarly-situated claimants are treated the same under the methodology developed to allocate the settlement proceeds and to help ensure that every claimant is allocated a fair and equitable share of the settlement proceeds (taking into account the terms/conditions of the Settlement Agreement, the severity of the injury and the proof available).

The question of course is whether the terms of the settlement agreement - i.e. the matrix developed by the lawyers - fairly allocates funds and what data is used to make those determinations.

ADL

h/t Fred Mogul, WNYC.

November 18, 2010 in 9/11, Aggregate Litigation Procedures, Environmental Torts, Lawyers, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 10, 2010

NYTimes on the BP Litigation

The New York Times Sunday Magazine has a feature by Douglas McCollam about the lawyers suing BP.  You can find it here: The Other Oil Cleanup.  More analysis later.

H/T Civ Pro & Fed Courts Blog


ADL

November 10, 2010 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters | Permalink | Comments (0) | TrackBack (0)

Monday, September 27, 2010

Alabama Business and Governmental Claimants Criticize BP Payments

See the Wall Street Journal article, Spill Payments Irk Alabama Businesses, by Mike Esterl.  In reaction, BP fund administrator Ken Feinberg stated, "In light of the criticism, I am accelerating payments and being more generous."

BGS

September 27, 2010 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters, Procedure | Permalink | Comments (0) | TrackBack (0)

Plaintiffs' Lawyers Vie for Lead Positions in the BP MDL

See this Wall Street Journal article, Modesty is Out as Lawyers Vie for Spot in BP Suit, by Dionne Searcey.

BGS

September 27, 2010 in Aggregate Litigation Procedures, Environmental Torts, Lawyers, Procedure | Permalink | Comments (0) | TrackBack (0)

Monday, September 20, 2010

BP Still Faces Investigations, Lawsuits, and Fines

An article in the Wall Street Journal discusses the remaining BP's remaining challenges stemming from the Gulf Oil Spill -- governmental investigations, civil lawsuits, and fines.  The amount of fines imposed may turn on whether BP is found "grossly negligent."  With regard to lawsuits, much will depend on the extent to which Ken Feinberg can persuade potential plaintiffs to forego their legal claims in exchange for quicker compensation via the $20 billion BP claims fund.

BGS

September 20, 2010 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)