Friday, March 29, 2013
Zachary Savage (J.D. Candidate, NYU), has posted to SSRN his student note, Scaling Up: Implementing Issue Preclusion in Mass Tort Litigation Through Bellwether Trials, N.Y.U. L. Rev. (forthcoming 2013). Here's the abstract:
The civil litigation system aims to resolve disputes in an efficient, centralized, and final manner. In the context of mass tort litigation, one technique courts often use to achieve these goals is what I call “scaling up”: holding individual trials, and then applying results from these trials to similarly situated individuals. Scaling up, however, presents two difficulties. First, the technique risks compromising defendants’ Due Process rights by creating impermissible settlement pressure. Second, scaling up requires the initial court to structure the litigation so that it may serve as a template for follow-on proceedings; where this is not done, attempting to graft the results of one proceeding onto the remaining group of similarly situated individuals may simply lead to more protracted litigation.
Yet these difficulties are not inherent to the technique; in fact, courts can scale up in a way that avoids these problems. In order to mitigate the Due Process problem, courts should not apply the results of individual trials to subsequent trials involving similar claims until a substantial number of trials have been completed, and until it has become clear that any verdicts unfavorable to defendants are not flukes or outliers. And to ensure that scaling up does not simply lead to more protracted litigation, the initial trials should be structured so as to maximize the likelihood that individuals in follow-on litigation can invoke the findings under the issue preclusion doctrine of Parklane Hosiery v. Shore. The American Law Institute has made a proposal with these considerations in mind with respect to issue classes. This Note argues that a similar approach should be taken in the Multidistrict Litigation (MDL) process, where most mass tort litigation occurs today. This approach would be particularly useful if applied to one device that is being used with increasing frequency in the MDL process: the bellwether trial.
Friday, March 22, 2013
At Corporate Counsel, there's an interesting piece by journalist Michael Goldhaber entitled Kindergarten Lessons from Chevron in Ecuador. Goldhaber, who has been following this massive and messy litigation for years, offers what he sees as some of the true and false lessons from the ongoing litigation concerning Texaco-Chevron's involvement in oil drilling in Ecuador.
In a nutshell, the litigation involves claims that a Texaco subsidiary caused environmental damage to the Oriente region of Ecuador. Plaintiffs originally sued in the Southern District of New York, but their suit was dismissed on grounds of forum non conveniens. Plaintiffs then filed a lawsuit in Ecuador and won an $18 billion judgment. Chevron contends that the Ecuadorian judgment was obtained by fraud and corruption, and has resisted enforcement of the judgment. Chevron sued plaintiffs' attorney Stephen Donziger and others, asserting RICO and fraud claims. An international arbitration tribunal weighed in pursuant to the Ecuador-US bilateral investment treaty. Plaintiffs are seeking to enforce the judgment in Canada, Argentina, Brazil and elsewhere. This mess of a litigation has been going on for nearly 20 years.
Goldhaber, in prior work, has articulated a strong view that the Ecuadorian judgment was the product of fraud and corruption. In the new article, Goldhaber takes as his starting point the Stanford Journal of Complex Litigation symposium that took place in February. He goes through the basic lessons offered by the participants -- plaintiffs' lawyer Graham Erion, defense lawyer Theodore Boutros, and a host of scholars including myself.
The strongest lesson (and here I am in complete agreement with Goldhaber): "Be careful what you wish for." The irony of this litigation is overwhelming. Texaco fought to have the case dismissed on grounds of forum non conveniens, arguing that Ecuador was a more appropriate forum. The plaintiffs argued that the Ecuadorian courts could not handle the case and that it should remain in the U.S. Ever since the massive judgment, however, the positions have been flipped -- with the plaintiffs insisting that the judgment deserves respect and the defendant contending that the Ecuadorian courts were corrupt. Goldhaber has referred to this as "forum shopper's remorse."
But I do not agree with Goldhaber's next step. Noting that "the abuse of transnational litigation would never have happened had the U.S. held on to the case," he suggests that the doctrine of forum non conveniens be altered to take into account the stakes and political significance of a case:
The great blunder in this dispute was to ship it to Ecuador in the name of forum non conveniens. The U.S. courts could have saved everyone a lot of grief had they recognized that a case is more prone to abuse when the issues are (a) high-stakes or (b) politicized. I learned from Russia's Yukos affair that, even if a weak judicial system has made significant progress, it does not deserve trust in a hot-button case of great magnitude. It was reckless to expect Ecuador (even if it had just adopted a new set of corruption reforms) to handle a huge case pitting gringo oil companies against indigenous rights. My modest suggestion is to incorporate these factors into the FNC analysis.
The adequate alternative forum prong of the forum non conveniens analysis is a low threshold, and deliberately so. A lawsuit alleging environmental harm to Ecuadorian land and medical harm to Ecuadorian citizens, and involving control over Ecuadorian natural resources, belongs in Ecuador. That is the very point of forum non conveniens. A U.S. court should be loath to say that it will hear the case in the U.S. because it thinks the Ecuadorian courts just cannot handle it. A judgment obtained by fraud should not be enforceable elsewhere, but this is better addressed ex post, which is exactly what the current litigation -- albeit in a rather ugly fashion -- is doing. But to have said, ex ante, that the case should be heard in the United States despite all of the public and private interest factors that pointed to Ecuador, would have been a mistake.
Wednesday, March 20, 2013
Widener University School of Law and the Widener Law Journal are presenting a day-long symposium, Perspectives on Mass Tort Litigation, on Tuesday, April 16, 2013 in Harrisburg, Pennsylvania. The Honorable Eduardo Robreno of the Eastern District of Pennsylvania will present a luncheon address, Federal Asbestos Litigation: Black Hole or New Paradigm? Other participants include Hon. Thurbert Baker (McKenna Long); Mark Behrens (Shook Hardy); John Beisner (Skadden); S. Todd Brown (SUNY Buffalo); Scott Cooper (Schmidt Kramer); Amaris Elliot-Engel (Legal Intelligencer); Michael Green (Wake Forest); Deborah Hensler (Stanford); Mary Kate Kearney (Widener); Randy Lee (Widener); Bruce Mattock (Goldberg Persky); Tobias Millrood (Pogust Braslow); Linda Mullenix (Texas); Christopher Robinette (Widener); Susan Raeker-Jordan (Widener); Sheila Scheuerman (Charleston); Victor Schwartz (Shook Hardy); William Shelley (Gordon & Rees); Aaron Twerski (Brooklyn); Nicholas Vari (K&L Gates); and Nancy Winkler (Eisenberg Rothweiler). I will also participate via Skype videoconference. Here's the brochure: Download Widener 2013 MTL Symposiu Brochure
Tuesday, December 18, 2012
Rich Freer (Emory) has posted a draft of his latest piece, The Supreme Court and the Class Action: Where We are and Where We Might be Going, on SSRN. Here's the abstract:
In 2010 and 2011, the Supreme Court decided five class action cases. In 2012, it has agreed to hear four more. This piece summarizes what the Court has done and where it appears to be going concerning aggregate litigation. The goal of this piece is more practical than theoretical: to place all nine cases in context and draw preliminary conclusions about the impact these cases have had and will have -- not only on class action practice, but in other areas, including the Erie Doctrine, waivers of class arbitration, anti-suit injunctions, the binding effect of judgments on class members, enforcement of Rule 10b-5, and the apparent efforts of defendants to front-load litigation by demanding greater consideration of merits-based facts (and qualification of experts) at the class certification stage.
The cases dealing with waivers of class arbitration implicate the role of the civil suit in law enforcement. If small (usually consumer) claims cannot be pursued on an aggregate basis, they may never be vindicated; individuals and lawyers will not find it economically feasible to do so. Yet the Court appears unwilling to recognize a public-policy exception to the primacy of contract. Thus, if the underlying contract waives aggregate litigation or arbitration, apparently this will not be trumped by the concern that the relevant law (often consumer protection laws) will not be enforced through civil litigation.
Wednesday, November 28, 2012
Prof. John C. Coffee and I have posted "The New Class Action Landscape: Trends and Developments in Certification and Related Topics" on SSRN.
This is a memorandum that provides an overview of the trends and highlights in class certification rulings from 2012. Its going to be another interesting year for class actions at the Supreme Court and we provide a summary and evaluation of the upcoming cases, in addition to highlighting appellate and district court cases of interest.
On Friday, Nov. 30, Fordham Law School will host a symposium entitled Lawyering for Groups: Civil Rights, Mass Torts, and Everything in Between. Organized by Benjamin Zipursky and myself, the conference participants include Elise Boddie, Elizabeth Burch, Kristen Carpenter, Brian Fitzpatrick, Bruce Green, Samuel Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, Russell Pearce, Theodore Rave and Eli Wald. It is co-sponsored by the Stein Center for Law and Ethics and by the Fordham Law Review, which will publish the papers.
As I read the authors' drafts in preparation for the symposium, I am struck by how difficult the fundamental questions remain. What does it mean, really, for a lawyer to represent a group of similarly situated claimants? Is it a bundle of individual lawyer-client relationships, or is it better understood in practice as a relationship between a lawyer and a group, with the primary duty owed to the group as a whole? Does class certification fundamentally change the nature of the representation, or in some cases is the class action better understood as an acknowledgement of the reality of mass representation and the imposition of a set of procedural protections?
I am struck, as well, by how these questions transcend any particular area of practice. The symposium grew out of Ben Zipursky's and my shared interest in the ethics of group lawyering. He and I have lectured to mass tort lawyers on ethics in mass tort litigation, as well as to civil rights lawyers on the ethics of civil rights litigation. Each area brings its own challenges, but the core questions about collective representation apply to both. Convinced that these issues deserve attention, we pulled together a group of proceduralists and ethicists with widely varying views on aggregate litigation and different areas of expertise. I'm looking forward to learning a lot. The agenda is here.
Friday, October 19, 2012
Did you know our Mass Tort Litigation Blog also has a Mass Tort Litigation Facebook page that is regularly updated with links to posts from this blog? If you prefer to receive Mass Tort Litigation Blog posts in your Facebook feed, feel free to "like" our Facebook page, and you'll get access to our blog posts soon after they appear here.
Wednesday, October 17, 2012
Professor Stacey Lee (Johns Hopkins, Carey School of Business) has posted to SSRN her article, Pliva v. Mensing: Generic Consumers' Unfortunate Hand, Yale J. Health Pol'y L. & Ethics (forthcoming 2012). Here's the abstract:
The United States Supreme Court held in PLIVA v. Mensing that federal preemption immunizes generic drug manufacturers from liability for state law failure-to-warn claims. As a result, consumers harmed by a mislabeled generic drug will be unable to bring actions against generic manufacturers under state law. The Court confessed that the resulting federal drug-labeling scheme dealt consumers an “unfortunate hand.” By removing generic manufacturers’ duty to improve the adequacy of their products’ warning labels, the Supreme Court calls into question the safety of generic drugs.
Sunday, October 14, 2012
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' Boomlet, Wall 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
BGSAlthough 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.
Wednesday, October 10, 2012
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!
Sunday, October 7, 2012
Friday, October 5, 2012
Tuesday, August 28, 2012
I posted a new and likely controversial piece titled "Disaggregating" on SSRN today. As the abstract explains, the basic idea is that if courts can no longer resolve mass torts cases through judicial means, like approving a class action settlement, and must resort to encouraging private settlement, then perhaps we should rethink what we hope to accomplish by centralizing these cases.
Rethinking centralization really requires that we consider two questions: First, what level of commonality justifies aggregating mass torts, shorn of Rule 23’s procedural protections? And, second, should the federal judicial system continue to centralize claims with nominal commonality when judges typically cannot resolve those claims collectively absent a private settlement?
This Article’s title suggests one answer: if minimal commonality continues to justify collective litigation, then the system should aggregate claims to resolve common concerns and then, as state laws or individual differences come to the forefront, disaggregate into smaller, cohesive groups whose members’ claims could be resolved collectively through public, judicial means, such as trials or dispositive motions. Disaggregating into smaller, more cohesive units could revive the use of issues classes, particularly when the class definition is correspondingly narrow.
To be clear, I do not claim that this is the only way to legitimately resolve mass torts. But my previous work has prompted me to think more directly about the use of exit. Exit can perform a number of functions. It can signal dissatisfaction with substantive or procedural fairness. It allows plaintiffs with fundamental differences over which litigation ends to pursue and how to pursue them to leave the group when significant conflicts arise. It thus preserves plaintiffs' choice of forum and may also safeguard defendants' right to assert individual affirmative defenses.
Exit performs other functions, too, such as preserving substantive law and furthering democratic ideals. For example, while private ordering through settlement might follow a handful of bellwether trials, jurors are geographically concentrated in the transferee forum. That allows no public participation from other affected communities nationwide, whereas holding trials in plaintiffs’ original fora would further democratic participation ideals. Jury trials are, after all, meant to be a communal enterprise and, as the American Tort Reform Association likes to point out, each community may approach the adjudicative and deliberative process differently. In that way, disaggregating might also help maintain fidelity to state substantive law.
As always, I'd be interested in your comments - eburch at uga.edu
Thursday, August 16, 2012
This article argues that there is an unrecognized “anticommons” problem in aggregate litigation. An anticommons occurs when too many owners’ consent is needed to use a resource at its most efficient scale. When many plaintiffs have similar claims against a common defendant, those claims are often worth more if they can be packaged up and sold to the defendant (i.e., settled) as a single unit — that is, the defendant may be willing to pay a premium for total peace. But because the rights to control those claims are dispersed among the individual plaintiffs, transaction costs and strategic holdouts can make aggregation difficult, particularly in cases where class actions are impractical. Recently the American Law Institute has proposed to modify long-standing legal ethics rules governing non-class aggregate settlements to allow plaintiffs to agree in advance to be bound by a supermajority vote on a group settlement offer. By shifting from individual control over settlement decisions to collective decision making, the ALI proposal may offer a way out of the anticommons and allow the group to capture the peace premium. Critics, however, say that allowing plaintiffs to surrender their autonomy will leave them vulnerable to exploitation by the majority and by their lawyers. Viewed through the lens of the anticommons, these concerns are manageable. Similar anticommons problems arise in many areas of law, ranging from eminent domain to oil and gas to sovereign debt. But instead of slavishly preserving the autonomy of individual rights-holders, these areas of law have developed strategies for aggregating rights when doing so will result in joint gains. Drawing from these other contexts, this article argues that the legitimacy of compelling individuals to participate in a value-generating aggregation depends on the presence of governance procedures capable of protecting the interests of the individuals within the collective and ensuring that the gains from cooperation are fairly allocated. Governance is thus the key to legitimizing attempts to defeat the anticommons in mass litigation through aggregation, whether by regulatory means, such as the class action, or contractual precommitment, as in the ALI proposal.
Tuesday, August 14, 2012
Sam Issacharoff (NYU) has posted "Assembling Class Actions" on SSRN. The article is forthcoming in Washington University Law Journal as part of a symposium on the future of class actions. Here's the abstract:
Five times in the past two years, the Supreme Court has engaged the propriety of class actions. Taken together, these cases revisit certain core issues in class action law, all turning on the need and justification for treating individuals as part of a collective entity for litigation purposes. When examined from the perspective of legal treatment of individuals as part of a collective – assembling the class action, in the terminology of the title – three distinct aspects of class organization stand out. First, the existence of the litigation entity requires that someone be in charge, and that in turn raises the problem of how to ensure the faithfulness of the appointed agent. Second, the decision to forge a litigation entity necessarily empowers one side of the dispute, and that requires some justification. And, finally, even when litigation entities exist, class action law must come to terms with the range of individual autonomy that should still be recognized, including the ability to contract out of collective representation. As developed in the difficult recent class action cases, the questions of leadership, underwriting, and autonomy help define how modern class action practice endeavors to provide equality of treatment and predictability in the interaction between the individual insults of aggrieved citizens and the undiscriminating consequences of mass society.
Rhonda Wasserman (Pittsburgh) has posted an article titled "Legal Process in a Box, or What Class Action Waivers Teach Us about Law-Making" on SSRN. Here's the abstract:
The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to grapple with the relationship between law and politics, the role of legislative history in statutory interpretation, the meaning of legislative primacy, the influence of federal agencies on the development of the law, and competing conceptions of the relationship between the Supreme Court and the lower courts.
Monday, July 9, 2012
NPR has an extended interview with famed claims administrator Ken Feinberg about his new book, Who Gets What: Fair Compensation After Tragedy and Financial Upheaval.
July 9, 2012 in 9/11, Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Lawyers, Mass Disasters, Mass Tort Scholarship, Products Liability, Settlement | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 19, 2012
Not quite mass torts, but interesting from a complex litigation prespective anyway, so I hope our dear readers will forgive me.
This story concerns the use of the litigation system to intimidate small defendants into settling non-meritorious suits. One of the areas where this has come up is copyright litigation. Gideon Parchomovsky (Penn) and Alex Stein (Cardozo) recently wrote an article about this called the Relational Contingency of Rights (available on SSRN, forthcoming in the Virginia Law Review). The basic observation is an important one: legal rights afford no meaningful protection against challengers who can
litigate more cheaply than the rightholder and who can use this advantage to force the rightholder to give up her entitlement.
It turns out that some able litigants in Israel have taken their ideas and run with them. Unfortunately, the only link I have describing the litigation is in hebrew (here). Basically, an individual who refused to surrender to a pressing settlement demand filed a class action for over $10M against an Israeli company associated with a multinational copyright giant, Getty Images. The claim for the Israeli suit, as far as I can tell, sounds in abuse of process. Is America next? A defendant class action bringing lawsuit harassment claims?
Wednesday, May 2, 2012
In June, the Association of American Law Schools will host a major conference in Berkeley, CA, on environmental disasters. The sessions include such cheery topics as "History of Disaster," "Psychology of Disaster," "Disaster Federalism," and "Disaster Justice." Along the way, there will be sessions on tort law, environmental law, and regulatory perspectives on environmental disasters. The disputes arising out of 9/11, Katrina, and the Gulf oil spill leave no doubt that environmental catastrophes present some of the most challenging problems of mass tort litigation in the 21st century.
The speakers include many of the leading scholars in torts, environmental law, complex litigation, and related fields, including Tom Baker, David Dana, Daniel Farber, Sheila Foster, Myriam Gilles, Michael Green, Laura Hines, Keith Hylton, Gregory Keating, Douglas Kysar, Jonathan Masur, John Nagle, Adam Scales, Peter Schuck, Anthony Sebok, Catherine Sharkey, Jed Shugerman, Stephen Sugarman, and many others (and me!). I will speak on a panel about principles for compensation programs and mass settlements.
Friday, April 27, 2012
Stanford has an exciting announcement: the creation of the first scholarly law journal devoted to complex litigation! Stanford law students interested in complex litigation and mass torts will now have the opportunity not only to study under Stanford's Deborah Hensler, but also to edit the Stanford Journal of Complex Litigation.
Below is a note from the journal's first editors-in-chief, Nick Landsman-Roos and Matt Woleske.
Re: Announcing the Stanford Journal of Complex Litigation!
Dear Authors: We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation.
We hope you will consider publishing with SJCL for a few reasons:
· Specialization: SJCL is the first student-edited journal devoted exclusively to topics relating to complex litigation. Publishing with SJCL will ensure your important contribution will be read within the broader field it is engaging. SJCL will serve as a forum for dialogue on complex litigation issues. We also expect that because SJCL is devoted exclusively to complex litigation, it will quickly become a source of guidance for courts and practitioners.
· Expedited publishing: Because we are currently accepting submissions for the first volume of SJCL, we will be able to publish many of the submissions we accept in our fall issue. That means you can expect your article with SJCL to be in print faster than almost any other journal. There will be no need to update through a lengthy editing process.
· Modified peer review: SJCL will follow a modified peer-review system. Meaning, after a first-level review by SJCL’s editorial staff, any submission that is a candidate for publication will be submitted to at least one scholar in the field of complex litigation or civil procedure who will review the piece. We will take any unanimous decision from our peer reviewers as a binding decision on publication. This will ensure that SJCL is publishing significant contributions to this field.
· “Light edit”: Our editorial policy is to afford substantial deference to authors, in both tone and substance. As a result, all articles must be well written, well cited, and completely argued at the time of submissions. SJCL will only edit to ensure readability and Bluebook compliance, which means that the editing process will be faster but also requires that authors vouch for the accuracy of their citations.
· Outreach: We are committed to generating interest in the articles published with SJCL. That is why we will actively promote all scholarship we publish at symposia and on the blogosphere. We are also committing to distributing hundreds of copies of our first issue to grow our readership base.
· Volume 1: There is something to be said for publishing in the very first volume of a journal. We hope you appreciate this significance and decide to submit your manuscript to SJCL.
We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript to email@example.com. We do not accept submissions in hard copy.
SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact firstname.lastname@example.org.
A website with more information is forthcoming. For the time being please refer to our Stanford Law School site: http://www.law.stanford.edu/publications/journals/sjcl/.
Please contact us with any questions. We look forward to working with you.
Nick Landsman-Roos & Matt Woleske
Editors-in-Chief, Stanford Journal of Complex Litigation