January 25, 2011
5th Circuit Rejects Katrina Flood Settlement
Here is what Robin Effron at the Civil Procedure & Federal Courts Blog has to say about it:
The Fifth Circuit rejected the $21 million settlement of a class action over damage caused by the levee breaches on the grounds that it did not grapple with the fairness of dispersal of funds and instead "punted" that job to the special master.
Here is a link to the opinion. ADL
January 13, 2011
Southwestern Law School Vancouver Summer Program at UBC & Global Tort Litigation Course
Southwestern Law School, in collaboration with the University of British Columbia (UBC) Law Faculty and the International Centre for Criminal Law Reform and Criminal Justice Policy, will host a four-week Summer Law Program in Vancouver, British Columbia, Canada, from May 29 to June 29, 2011. In its 19th year, the program draws upon the collegial relationship between UBC and Southwestern, and offers a variety of academic and social experiences through (1) courses taught by prominent U.S. and Canadian law professors; (2) Distinguished Guest Lecturer, the Honorable Justice Rosalie Silberman Abella of the Supreme Court of Canada; (3) Midday Lecture Series presented by leading international scholars; (4) a part-time externship program; and (5) field excursions to local courts and other legal agencies. Here is the brochure.
I look forward to teaching a course on Global Tort Litigation in the Vancouver program this summer. Here's the course description:
This course will examine tort and civil procedure issues arising in global tort litigation, with particular focus on mass tort litigation spanning multiple countries. Subjects will include comparative approaches to liability for defective products, responses to terrorism, governmental liability, class actions, attorneys’ fees, and civil litigation generally. The course will also discuss crisis management. Particular attention will be given to litigation pertaining to the 9/11 terrorist attacks, BP Gulf oil spill, Toyota automobile unintended acceleration, Agent Orange defoliant, Vioxx drug, Dalkon Shield intrauterine device, and DBCP pesticide.
Other professors teaching in the Vancouver summer program include Linda Carter (McGeorge), Bruce MacDougall (UBC), Caleb Mason (Southwestern), and Hari Osofsky (Minnesota). Professors Gowri Ramachandran and Caleb Mason (both of Southwestern) are co-directors of the program.
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.
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.
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:
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.
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.
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.
November 20, 2010
Other-Regarding Preferences in the 9/11 Workers Settlement
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).
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.
h/t Fred Mogul, WNYC.
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.
October 29, 2010
BP Oil Spill Update
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.
October 09, 2010
McGovern Likely to be Named Special Master in Oil Spill MDL
Torts Prof Blog reports that Francis McGovern, a professor at Duke Law and accomplished special master, is likely to be appointed the special master in the In re Oil Spill MDL. Here is the opinion they link to: In re Oil Spill Notice.
For readers not familiar with McGovern's work, his insights have been critical to the development of the academic field of mass torts as well as in the real world in his work as a special master in various high profile litigations. McGovern coined the idea of a "mature" mass tort and an "elastic" mass tort, concepts that are key to understanding how this type of litigation works.
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."
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.
BP Gulf Oil Well "Effectively Dead" According to White House
August 23, 2010
Comparing the 9/11 Fund and the Oil Spill Fund
Michael Cooper has an article in the NYTimes about the two entitled "Spill Fund May Prove as Challenging as 9/11 Payments."
Richard Nagareda (Vanderbilt) is quoted as saying: "Although he had a very difficult time placing a dollar value on human life, in some way that was a more straightforward job than estimating the long-term harm to a shrimper’s business."
In both cases, I think, you have a situation where Feinberg is asked to monetize things that are very hard to monetize and about which people have strong and conflicting opinions - but that is what our tort system asks juries to do all the time. I've recently written on this issue in a piece called "Rough Justice" - an earlier draft is available on SSRN and I plan to post a revision soon.
The NYT article also raises the prospect of fraudulent claims. The 9/11 Fund was manageable in this regard because, as the paper quotes Feinberg “You’ve got verification of death."
August 17, 2010
BP Oil Spill Fund to Go Into Operation on Aug. 23, Receives Claims From All 50 States
Bloomberg Businessweek has a thorough article by Jim Snyder, looking at the issues of compensation and remoteness of claims. So far, BP has paid out $352 million in emergency payments for 114,100 claims, and BP has received a total of 142,400 claims.
August 11, 2010
BP Litigation, Compensation Fund, and Ken Feinberg
July 28, 2010
Feinberg to Disclose Compensation for Administering BP Fund
The Associated Press reports that Ken Feinberg announced on Tuesday that he will disclose BP's compensation to him for administering the $20 billion BP oil-spill claims fund, after he had previously stated such information would be "confidential" and "between [him] and BP." Feinberg now concedes the "perception of a conflict." Feinberg also said the he might request that than an outsider "with great credibility" set his salary. (H/t to Ted Frank of the Center for Class Action Fairness for apprising me of this development.)
On Sunday, July 18, I posted about the possible conflict of interest for Feinberg, arguing that he should disclose his compensation and seek a federal judge to assess his billable hours and rate, as is routinely done in class-action fee requests by class counsel. My post triggered a short article by Forbes and a post on Legal Ethics forum. I doubt my post had anything specifically to do with Feinberg's decisionmaking, but I'm happy that he has decided both to disclose his compensation and to seek a reputable third party to oversee his compensation, rather than BP (presumably, BP will agree to whatever the third-party determines). As I mentioned in my earlier post, I never meant to call into question Feinberg's integrity; rather, I urged this path as a way to help the success of the fund by removing any possible conflict of interest, and I expect that both Feinberg and BP will be happy to put this issue behind them.
UPDATE -- A Forbes article today discusses my prior blog post and Feinberg's recent decision to disclose his compensation.