Sunday, September 27, 2015

Good Ol' Boys Clubs in MDL

Amanda Bronstad at the National Law Journal recently published an article titled Good Ol' Boys Clubs in MDL that includes a list of law firms that I recently identified as firms with the most lawyers appointed to leadership positions in products liability MDLs.  Given the title of her piece, I thought readers might also be interested in the gender breakdown of lead lawyers in those multidistrict litigation cases.  Of the top fifty lawyers who were appointed most frequently, only 11 of the 50, or approximately 22% were female.  The full list of those attorneys is available in Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71, 139-40 (2015) (gender breakdowns are mentioned in footnoted 102).

September 27, 2015 in Aggregate Litigation Procedures, Lawyers, Procedure, Products Liability | Permalink | Comments (0)

Tuesday, August 18, 2015

Online Litigation Finance Platform at LexShares

Daniel Fisher at Forbes has an article, Investing In Lawsuits Is Heating Up, Aided By Electronic Platformdiscussing LexShares.


August 18, 2015 in Lawyers | Permalink | Comments (0)

Thursday, April 30, 2015

Constructing Issue Class Actions

There's been a lot of chatter over the past few years about the greater use of issue classes.  The Rule 23 Subcommittee in its recent report (p. 41) indicated that issue classes top its agenda for possible reform and there's been a greater willingness to rely on Rule 23(c)(4) among the circuit courts over the last few years.  Much of the scholarship on issue classes thus far, however, has focused on how to use issue classes in conjunction with Rule 23(b)(3)'s predominance requirement.  Professor Laura Hines (Kansas) has, for instance, written a series of articles on the topic and there have been several debates in symposium pages, such as DePaul's 2013 symposium.  

Whatever side of the debate one adheres to on the to-be-or-not-to-be question, the courts are embracing issue classes.  Thus, there remains much work to be done on discerning which issues should qualify for certification, how to think about Seventh Amendment Reexamination Clause questions, and how to compensate plaintiffs' attorneys who initiate issue classes.

I've recently written a paper on issue classes that takes some steps toward fleshing out these problems.  The paper is long since it's meant to be a one-stop shop for judges and attorneys on the subject, but here are the critical points worth underscoring:

First, one of the main difficulties of our system is that the focus in massive lawsuits has shifted to the ways in which the plaintiffs are dissimilarly situated, even when the defendant's conduct is uniform.  Take the GM ignition switch debacle or the Toyota acceleration cases, for example.  Corporate actions are nonindividuated; it doesn't make sense to litigate what GM or Toyota did in 40,000 different cases.  (Draft pp 5-8) But defendants have successfully shifted the procedural focus to how their behavior affected claimants, which tends to defeat class certification because common questions do not predominate over individual ones.  The issue class has the potential to recapture what is common to the plaintiffs: defendant's conduct--at least so long as that conduct is nonindividuated.  One can capture this notion by divvying up the legal elements in any claim or defense as "conduct components," which concern the defendant's conduct, or "eligibility components," which concern a plaintiff's eligibility for relief.  (Draft pp 15-29)

Second, by embracing the standard suggested by the ALI's Principles of the Law of Aggregate Litigation, courts can ease the supposed tension (to the extent any remains) between Rule 23(c)(4) and Rule 23(b)(3).  (Draft pp 31-32)  Courts should certify issue classes where resolving the issue would "materially advance the resolution of multiple civil claims by addressing the core of the dispute in a manner superior to other realistic procedural alternatives, so as to generate significant judicial efficiencies." (Principles, 2.02(a)(1), 2.02 cmt. a, 2.08, 2.08 cmt. a)  Predominance is embedded in the "materially advance" language and superiority is included as a condition that certifying the issue would be "superior to other realistic alternatives" such that it "generate[s] significant judicial efficiencies."  Moreover, the courts themselves seem to have reached a general consensus on this matter, with even the Fifth Circuit embracing issue classes in In re Deepwater Horizon, 739 F.3d 790, 804 (5th Cir. 2014).  (Draft p. 30)

Third, courts must figure out a way to compensate (and thus incentivize) plaintiffs' attorneys.  This is perhaps the trickiest part because of both the lack precedent and doctrinal hurdles such as Lexecon.  Lexecon presents a special challenge in multidistrict litigation cases where issue classes might prove most useful.  Nevertheless, one need not invent a theory out of whole cloth.  Charging liens and the common-benefit doctrine provide sound analogies for fashioning a coherent path forward.  (Draft pp 42-50)

Finally, there are some hurdles to making issue classes stick, such as preclusion doctrines, adequate representation, and the Seventh Amendment Reexamination Clause.  Thus, the paper concludes by suggesting solutions to these problems and arguing that preclusion can provide a way to coordinate dispersed public and private regulators.

As always, comments are welcome (eburch at

April 30, 2015 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Tobacco, Vioxx | Permalink | Comments (0) | TrackBack (0)

Thursday, March 19, 2015

2014 Increased Revenue at Litigation Financier Burford Capital

Morris Ratner on Class Counsel as Litigation Funders

Professor Morris Ratner (UC Hastings) has posted to SSRN his article, Class Counsel as Litigation Funders, which is forthcoming in the Georgetown Journal of Legal Ethics.


March 19, 2015 in Class Actions, Ethics, Lawyers, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 10, 2014

Frankel on Issacharoff

Alison Frankel of Reuters highlights Sam Issacharoff's high quality, innovative Supreme Court briefs in the a recent blog post.   They are indeed masterful.  

December 10, 2014 in Lawyers, Procedure | Permalink | Comments (0) | TrackBack (0)

Saturday, October 4, 2014

Remanding Multidistrict Litigation

I've been a bit slow in posting this, but Louisiana Law Review hosted an excellent symposium last spring titled The Rest of the Story: Resolving the Cases Remanded by the MDL.  As part of that symposium, I wrote a piece titled Remanding Multidistrict Litigation.  Remands are something that have received scant attention in the scholarly literature, but are a constant hope for many plaintiffs' lawyers involved in multidistrict litigation (well, at least those who aren't on the steering committees). 

I just got around to posting the piece on SSRN today.  Here's the abstract:

Multidistrict litigation has frequently been described as a “black hole” because transfer is typically a one-way ticket. The numbers lend truth to this proposition. As of 2010, the Judicial Panel on Multidistrict Litigation remanded only 3.425% of cases to their original districts. That number dwindled to 3.1% in 2012, and to a scant 2.9% in 2013. Retaining cases in hopes of forcing a global settlement can cause a constellation of complications. These concerns range from procedural justice issues over selecting a forum and correcting error, to substantive concerns about fidelity to state laws, to undermining democratic participation ideals fulfilled through jury trials in affected communities. Yet, if transferee judges remanded cases after overseeing discovery into common issues, they could alleviate those concerns while avoiding inconsistent rulings on common questions and streamlining discovery.

Despite the potential upside, remand rarely occurs because it disfavors those with litigation control—transferee judges, lead plaintiffs’ attorneys, and defendants. Transferee judges deem settlement a hallmark of their success. Lead plaintiffs’ lawyers try to increase their fees by inserting fee provisions into settlements. Likewise, plaintiffs’ attorneys can bypass doctrinal uncertainties over weak claims by packaging plaintiffs together in a global settlement. And aggregate settlements allow defendants to resolve as many claims as possible in one stroke, take their hit, and return to business, which their shareholders view as a net positive.  The remand process itself defers to these vested interests. Although the Panel could remand cases at a party’s request, in practice it appears never to have done so. Rather, it waits for the transferee judge to admit defeat and suggest remand—thereby conceding failure.

For transferee judges to begin remanding cases, the “pro-settlement” norm and “remand-as-a-failure” stigma must change.  Accordingly, transferee judges should routinely entertain a suggestion for remand by a party or initiate them sua sponte as soon as discovery on common issues concludes and only case-specific issues remain.  Likewise, the Panel should seriously consider parties’ remand requests even when the transferee judge does not support them.  This reopens a direct line for parties to request remand when common discovery ends, but the transferee judge prefers to hold cases hostage in hopes of coercing settlement.

October 4, 2014 in Aggregate Litigation Procedures, Conferences, Current Affairs, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

Silver and Hyman on Medical Malpractice Litigation

Professors Charlie Silver and David Hyman have posted their latest article, "Double, Double Toil and Trouble: Justice-Talk and the Future of Medical Malpractice Litigation," on SSRN.  Their article studies the people behind the cases: the lawyers.  It examines the market for legal services and how recent economic changes have impacted that market.  Here's the abstract: 

It’s not easy being a lawyer. “Biglaw” may not be dead (yet), but major firms have dissolved, filed for bankruptcy, and shed partners and practice groups. Small and mid-sized firms and solo practitioners are facing similar challenges. Some of these developments are attributable to the financial crisis and the Great Recession. Others are the result of structural and technological changes affecting the market for legal services — and those changes have revealed new weaknesses in the business forms through which lawyers have traditionally delivered legal services. To most inhabitants of Biglaw, these changes and challenges are unprecedented, but to lawyers who do medical malpractice and personal injury litigation, market turbulence of this sort is old hat. Over the past three decades, there have been dramatic changes in the market (and demand) for such services. Some of these changes are clearly attributable to legislative action, including caps on noneconomic or total damages, and procedural hurdles such as screening panels, certification requirements, and interlocutory appeals of expert witness reports. But, even in states that have not taken such steps, there has been a long-term secular decline in the volume of medical malpractice litigation. Apart from the highly visible public brawl over the merits of damage caps, these developments have attracted little attention. However, the dynamics are clear to those who wish to pay attention to them. In this Article, we explore these trends, highlight the ways in which they have interacted with one another, and then briefly discuss why it is not helpful to analyze these developments in terms of their impact on “access to justice.”

August 4, 2014 in Lawyers, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, July 13, 2014

Industry Groups Seek Amendment of Rule 26 to Require Disclosure of Third Party Litigation Financing

Representatives of the U.S. Chamber of Commerce Institute for Legal Reform, American Insurance Association, American Tort Reform Association, Lawyers for Civil Justice, and National Association of Manufacturers have submitted a letter to Administrative Office of the U.S. Courts, requesting the that Rule 26 of the Federal Rules of Civil Procedure be amended to require disclosure of third-party litigation financing.  The Institute for Legal Reform also has provided a summary of their request.

July 13, 2014 in Ethics, Lawyers, Procedure | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 1, 2014

Coverage of GM's New Fund

Joe Nocera has a short opinion piece on Ken Feinberg and his work in progress - the GM claims fund. You can find the piece here.  The question for Feinberg is always - is this replicable?  The answer depends on the company's tolerance for risk and desire for atonement.  

The New York Times' Danielle Ivory also covered the new fund here, explaining how the fund works.

I also recommend the Valukas report on GM. My favorite part is his description of the "GM nod."  Everyone at a meeting nods their head to a plan, nobody actually does anything to move it forward.   

July 1, 2014 in Aggregate Litigation Procedures, Informal Aggregation, Lawyers, Products Liability, Vehicles | 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)

Friday, May 16, 2014

Judging Multidistrict Litigation

I posted a new article to SSRN this morning that's been a labor of love for well over a year now.  I'm excited about this new piece for a few reasons.  

First, it debuts an original data set of all lead lawyers appointed in 72 product liability and sales practices MDLs that were pending as of May 14, 2013.  As such, it's the only paper (that I know of) that includes empirical evidence on plaintiffs-side repeat players appointed to leadership positions.  (Yes, it includes a list of some of the most entrenched repeat lawyers and law firms as an appendix.)  (If this is of interest, have a look at Margaret Williams, Emery Lee, and Catherine Borden's recently published paper in the Journal of Tort Law titled Repeat Players in Federal Multidistrict Litigation, which looks at all plaintiffs' attorneys in MDLs using social network analysis.) 

I also explain why appointing a leadership group comprised of predominately repeat players can cause inadequate representation problems.  For example, repeat players playing the long game have rational, economic incentives to curry favor with one another, protect their reputations, and develop reciprocal relationships to form funding coalitions and receive client referrals.  As such, extra-legal, interpersonal, and business concerns may govern their interactions and trump their agency obligations to uniquely situated clients who could threaten to bust a multi-million dollar deal.  Non-conforming lawyers may be ostracized and informally sanctioned, which promotes cooperation, but deters dissent and vigorous representation.  Over time, expressing contrary opinions could brand the dissenting lawyer a defector, which could decrease lucrative leadership opportunities.  (Other reasons abound, which I explain on pages 25-27 of the paper.) 

Second, it provides some much needed guidance for transferee judges.  Although the Manual for Complex Litigation remains the go-to guide for transferee judges, it hasn't been updated in 10 years.  So much has changed since the fourth edition was published in 2004.  Accordingly, in "Judging Multidistrict Litigation," I suggest best practices for appointing and compensating lead lawyers.  Judges can compensate lead lawyers on a coherent and more predictable basis by distilling current theories down to their common denominator: quantum meruit.  Quantum-meruit awards would align fees with other attorney-fee decisions and compensate leaders based on the value they actually add.  

Third, as anyone familiar with the area knows, settlement review in nonclass litigation is controversial at best.  After judges expressly deny class certification they then harken back to Rule 23 and their "inherent equitable authority" to comment on settlements.  So, employing a quantum-meruit theory for awarding lead lawyers' attorneys' fees would give judges a legitimate private-law basis for scrutinizing settlements.  Because courts must evaluate the case's success to determine how much compensation is merited, it could likewise help stymie a trend toward self-dealing where repeat players insert fee provisions into master settlements and require plaintiffs and their attorneys to "consent" to fee increases to obtain settlement awards.

The article is forthcoming in N.Y.U. Law Review in April of 2015, so I still have a bit of time to tinker with it and welcome comments in the interim (eburch at  In the meantime, here's the formal SSRN abstract.

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle. 

Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of repeat players to leadership positions, which may complicate genuine consent through inadequate representation. Repeat players’ financial, reputational, and reciprocity concerns can govern their interactions with one another and opposing counsel, often trumping fidelity to their clients. Systemic pathologies can result: dictatorial attorney hierarchies that fail to adequately represent the spectrum of claimants’ diverse interests, repeat players trading in influence to increase their fees, collusive private deals that lack a viable monitor, and malleable procedural norms that undermine predictability.

Current judicial practices feed these pathologies. First, when judges appoint lead lawyers early in the litigation based on cooperative tendencies, experience, and financial resources, they often select repeat players. But most conflicts do not arise until discovery and repeat players have few self-interested reasons to dissent or derail the lucrative settlements they negotiate. Second, because steering committees are a relatively new phenomenon and transferee judges have no formal powers beyond those in the Federal Rules, judges have pieced together various doctrines to justify compensating lead lawyers. The erratic fee awards that result lack coherent limits. So, judges then permit lead lawyers to circumvent their rulings and the doctrinal inconsistencies by contracting with the defendant to embed fee provisions in global settlements—a well recognized form of self-dealing. Yet, when those settlements ignite concern, judges lack the formal tools to review them. 

These pathologies need not persist. Appointing cognitively diverse attorneys who represent heterogeneous clients, permitting third-party financing, encouraging objections and dissent from non-lead counsel, and selecting permanent leadership after conflicts develop can expand the pool of qualified applicants and promote adequate representation. Compensating these lead lawyers on a quantum-meruit basis could then smooth doctrinal inconsistencies, align these fee awards with other attorneys’ fees, and impose dependable outer limits. Finally, because quantum meruit demands that judges assess the benefit lead lawyers’ conferred on the plaintiffs and the results they achieved, it equips judges with a private-law basis for assessing nonclass settlements and harnesses their review to a very powerful carrot: attorneys’ fees.

May 16, 2014 in Aggregate Litigation Procedures, Class Actions, Ethics, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement, Vioxx, Zyprexa | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Stanford Symposium on the BP Oil Spill Litigation

The Stanford Journal of Complex Litigation is hosting a symposium, "A Complicated Cleanup: The BP Oil Spill Litigation," on Thursday, May 8, 2014 and Friday, May 9, 2014, at Stanford Law School.  The keynote address speaker is Kenneth Feinberg, the Gulf Coast Claims Administrator.  Other symposium speakers will include Elizabeth Cabraser of Lieff Cabraser, Professor Francis McGovern (Duke), Professor Linda Mullenix (Texas), Professor Maya Stenitz (Iowa), and myself.  Panel moderators will include Stanford Law Professors Nora Engstrom, Deborah Hensler, and Janet Alexander. 


April 17, 2014 in Aggregate Litigation Procedures, Conferences, Environmental Torts, Lawyers, Mass Disasters, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Thursday, November 14, 2013

Ecuador high court affirms but cuts Chevron judgment

As the trial continues to unfold in New York in Chevron's RICO lawsuit against plaintiffs' lawyer Stephen Donziger -- amid accusations of judicial bribes, ghostwritten opinions, and sex scandals -- it is worth noting what happened in Ecuador this week.

On Tuesday, Ecuador's high court, the National Court of Justice, affirmed the underlying judgment against Chevron but reduced the amount from about $19 billion to $9.5 billion. The court eliminated the portion of damages that had been imposed as punishment for Chevron's failure to apologize. Here are news accounts from the Wall Street Journal and Reuters. Chevron's suit against Donziger contends that he engaged in fraud and other misconduct to obtain the massive judgment in the Lago Agrio environmental litigation.


November 14, 2013 in Environmental Torts, Ethics, Foreign, Lawyers, Trial | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

In Memorium: Ronald L. Mottley (1944-2013)

Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."


Update: here's a link to the New York Times article


August 22, 2013 in 9/11, Asbestos, Avandia, Lawyers, Lead Paint, Tobacco | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 13, 2013

Cy Pres Settlements Upstream

Adap Liptak of the NYTimes has a piece When Lawyers Cut Their Clients Out of the Deal about a cy pres settlement with Facebook.  In this settlement (approved by the 9th Circuit) the lawyers got $2.3 million and the clients got a cy pres contribution, apparently $6.5 million to a foundation over which Facebook has some control according to the article.  The cy pres recipient is something called the Digital Trust Foundation.  A quick google search came up with a bunch of references to the Facebook settlement but no website for this foundation. 

The Ninth Circuit affirmed the settlement and denied rehearing en banc, with a dissent on rehearing en banc, making this a possible Supeme Court cert grant.  (A cert petition was filed on June 26, 2013). 

There is a lot of scholarship on the topic of how much lawyers should be paid relative to class members as well as articles critizing cy pres settlements.  Some links to this work are below. The problem is this.  We regulate entities like Facebook largely by litigation.  In the absence of the class action, there would be little or no enforcement of the consumer protection laws.  But the class action litigation needs to be funded, and it is funded out of lawyers percentage of the total fund, usually the total fund from a settlement because class actions are almost never litigated.  Its very hard to certify a class action, so class actions are often certified for settlement only.  The incentive of the lawyers, fearing no class certification or realistic possibility of actually litigating, is to settle.  The incentives for defendants, wanting to get the litigation off their books, is to settle cheap.  The answer to this problem in my view is to allow classes to be litigated, not to tighten the certification standards further.

If the settlement will deter future misconduct, even if the money doesn't go directly to the class members, there is still a lot of societal value there.  But is $8.8 million enough to deter Facebook? Does it have any relationship to the potential value of this lawsuit?  That is, what is the value of the claims multiplied by the probability of success? 

In my own work, I've suggested that cy pres settlements are not necessarily bad, but that certainly doesn't mean they are always good.  Class members should just be polled in determining where cy pres settlements should go.  The argument that class members will not appreciate the putative $1 (I think I saw it was $1.12) they would get in a settlement like this one is reasonable.  But that doesn't make a settlement like this one okay.  Especially in a settlement involving facebook users, who presumably are all connected via facebook, there is no reason why absent class members cannot be polled. Do they "like" this foundation?  what would they prefer?   Might I suggest Public Citizen as a recipient?   

This case might be a fine vehicle for the Supreme Court to consider cy pres settlements. Given how few cases the Court decides, how few class actions actually are filed and litigated (less than 1% of the federal docket) its not clear to me that this is the best use of its time.  That said, if the Court does grant cert, it would be wise to consider both the overall benefits and costs of cy pres to consumers and society more generally, not merely the fact that the lawyers got a lot of money here.  This is a story of more money than sense. 


Some links:

Cert Petition

Center for Class Action Fairness

Lahav, Two Views of the Class Action (advocating polling)

Gilles & Friedman, Exploding the Class Action Agency Costs Myth (SSRN)

Fitzpatrick, Do Class Action Lawyers Make Too Little? (SSRN) 

Redish et. al., Cy Pres Relief and the Pathologies of the Modern Class Action (SSRN)







August 13, 2013 in Class Actions, Lawyers, Procedure, Settlement | Permalink | Comments (0) | TrackBack (0)

Thursday, March 21, 2013

Stanley Chesley Disbarred

Stanley M. Chesley, one of the leading mass tort lawyers of his generation, was disbarred today by the Kentucky Supreme Court (court's opinion here). Chesley played an important role in many of the biggest mass torts of the past forty years: the Beverly Hills Supper Club fire, tobacco, breast implants, fen-phen, Bendectin, Bhopal, Lockerbie, Catholic church sex abuse, MGM Grand Hotel, San Juan Dupont Plaza, and other mass torts, as well as numerous antitrust and securities class actions. He was disbarred for his involvement in an aggregate settlement of Kentucky fen-phen claims. The court found that the lawyers violated rules of professional conduct by taking fees in excess of what their fee agreement provided, by including an inappropriate cy pres remedy that advantaged the lawyers rather than the clients, and by failing to comply with the disclosure and informed consent requirements of the aggregate settlement rule.

The Kentucky diet drug settlement also led to the disbarment and imprisonment of Kentucky attorneys William Gallion and Shirley Cunningham, as well as criminal, civil, and ethics proceedings and penalties for several other lawyers. For earlier coverage of the Kentucky fen-phen settlement dispute, see herehereherehere, and here.

On today's disbarment of Chesley, see these news accounts in the Lexington Herald-Leader, the Cincinnati Enquirer, and the ABA Journal.


March 21, 2013 in Ethics, Fen-Phen, Lawyers | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2012

Legal Crisis Management

Two years ago, I blogged about the need for greater scholarly attention to mass tort crisis management.  Since then, crisis-management practice groups at law firms have continued to burgeon.  Here's a sampling of crisis-management groups at large law firms: Baker Hostetler, Bingham, Cooley, Covington & Burling, Freshfields, Gibson Dunn, McCarter & English, McDermott Will & Emery, Patton Boggs, Pillsbury Winthrop, Skadden, and Steptoe & Johnson.

For media coverage of recent growth in crisis-management groups, see the following: 

(1) Ashby Jones, On Covington and the 'Crisis Management' BoomletWall Street Journal Law Blog (Jan. 6, 2011, 1:37 p.m.);

(2) Leigh Kamping-Carder, Savvy Firms Seek Business Through Crisis Management, Law360 (Feb. 19, 2010, 7:12 p.m.) (online registration required for article); and

(3) David Lat, A Look at Orrick's Crisis Management Practice, Above the Law (Oct. 8, 2009, 11:06 a.m.). 

While business schools have offered courses on crisis management and leadership, public-policy schools have offered courses on governmental crisis management, and communications schools have offered courses on crisis communications, law schools appear not to have provided curricular attention to legal crisis management. (The University of Texas School of Law has a course on crisis management, but it appears to track public-policy courses focusing on the government's role in a crisis.)  What might a law-school course on legal crisis management look like, focusing on the role of lawyers in preventing, managing, and resolving crises?  Here's a draft description I put together for such a course that I've been considering more fully developing:

Legal Crisis Management and the Media
Although crisis management has long been an important skill for lawyers, formal crisis management practices today proliferate among global law firms seeking to aid clients facing complex crises that span various countries, practice areas, and advocacy settings such as judicial, legislative, regulatory, or media inquiries.  This course will examine and integrate insights on legal crisis management from multiple disciplines, including not only law, but also management, leadership, communications, and public relations.  Within law, the course will draw upon ethics, counseling, negotiation, and alternative dispute resolution, and address lawyers' and clients' interaction with the media during a crisis, including global perspectives on the legal limits of media coverage.  In addition to developing conceptual approaches, the course will discuss case studies of legal crisis management implicating the law, culture, and media of multiple countries and areas, and consider lawyers' actual and potential contributions to successful resolution of the crises.   

October 14, 2012 in Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2012

Michael Downey on Ethical Issues Related to Incentive Payments for Class Representatives

As part of the ABA Sound Advice series, Michael Downey (Armstrong, Teasdale) addresses ethical issues related to incentive payments for class representatives.


October 10, 2012 in Class Actions, Ethics, Lawyers | Permalink | Comments (0) | TrackBack (0)

Christopher Robinette and American Law Institute

Congratulations to Torts Prof blogger Christopher Robinette (Widener) on being elected to the American Law Institute!  Having started together with him as Freedman fellows at Temple Law, I can also attest to his longstanding commitment to, and mastery of, tort law!  


October 10, 2012 in Lawyers, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)