Wednesday, November 27, 2013
Mass harm exerts enormous pressure on civil justice systems to provide efficient but fair procedures for redress. In this context, settlement of mass disputes is easily understood as a common good. Yet settlements involving hundreds or thousands of claims, often across jurisdictions, raise concerns about the substantive fairness of the compromise reached by lawyers, and the ability of the court system to ensure meaningful oversight. Unburdening the judicial system from mass claims comes at a price; how much rough justice are we prepared to accept?
The difficulty of balancing these competing interests is ubiquitous. Canadian class action settlement practice is no exception. In this book chapter, I first explore the realities of this form of litigation, and to some extent debunk the myth that class actions inevitably result in large monetary settlements. I then turn to a brief discussion of the incentives and disincentives to settle large claims, for both plaintiffs’ lawyers and defendants. In Part III, I describe and critique the judicial framework for the approval of proposed settlements. I finish by pointing out the lack of alternatives to class proceedings and conclude that, though not perfect, the Canadian class action settlement system stands as a model for consideration by other jurisdictions wrestling with the problem of mass disputes.
The chapter is part of the forthcoming book, Resolving Mass Disputes: ADR and Settlement of Mass Claims (Edward Elgar 2013), edited by Christopher Hodges and Astrid Stadler.
Tuesday, November 26, 2013
The Wall Street Journal has an article on the ongoing asbestos cleanup by W.R. Grace in Libby, Montana: In Montana Town, a Shut Mine Leaves an Open Wound, by Dionne Searcey. The Journali also has a related slideshow. The cost of the cleanup has so far been approximately $400 million.
Tuesday, November 19, 2013
Johnson & Johnson has agreed to terms for settling hip implant claims, according to multiple news reports. The New York Times article reports that under the agreement, J&J "will pay some $2.475 billion in compensation to an estimated 8,000 patients who have been forced to have the all-metal artificial hip removed and replaced with another device." The article states that a typical claimant settlement, before legal fees, would be about $250,000 plus all medical costs. The article also states that the deal requires the participation of 94 percent of eligible claimants.
The lawsuits addressed by this settlement involve the Articular Surface Replacement, or A.S.R., a product of the DePuy Orthopaedics division of J&J. A couple of news sources reported a settlement of this litigation six days ago but without confirmation from defendants or plaintiffs. Today's reports come on the heels of a hearing in the multidistrict litigation (MDL 2197) before Judge David Katz in the Northern District of Ohio.
Update: For DePuy's and J&J's press release about the settlement program, see here and here. For the settlement website, see here. For an overview of the settlement terms, including settlement eligibility, settlement amounts, and deadlines, see here.
Thursday, November 14, 2013
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.
Wednesday, November 13, 2013
The New York Times and Bloomberg are reporting that Johnson & Johnson has agreed to settlement terms to resolve thousands of DePuy metal hip implant claims. According to the Bloomberg article, J&J Said to Reach $4 Billion Deal to Settle Hip Lawsuits, and the New York Times article, Johnson & Johnson Said to Agree to $4 Billion Settlement Over Hip Implants, the deal would provide about $300,000 to $350,000 in compensation for each claimant who underwent surgery to replace the DePuy hip implant, which could be as many as 8000 cases. The amount for each claimant would depend on age, medical condition, and other factors. According to the articles, the settlement has not been formally announced.
The Depuy hip implant cases are pending in Multidistrict Litigation (MDL 2197) before Judge David Katz in the Northern District of Ohio, as well as in state courts in Ohio, California, and New Jersey. Two cases have gone to trial, with one plaintiff victory and one for the defense. Seven more trials are scheduled. This would be the largest settlement ever for medical device litigation, and one of the largest mass tort settlements.
Update: See here for Nov. 19 info.
Thursday, November 7, 2013
Yesterday, the Supreme Court heard oral arguments on whether parens patriae actions brought by state attorneys general are removable as mass actions under the Class Action Fairness Act. (Mississippi ex rel. Hood v. AU Optronics Corp., U.S., No. 12-1036) The lower courts have split on the issue, with the Fifth Circuit holding that such actions are removable when the citizens are the "real parties in interest," and the Fourth, Seventh, and Ninth Circuits reaching the opposite conclusion. The Fifth Circuit, in Louisiana ex rel. Caldwell v. Allstate Insurance Co., held that because the attorney general sought damages on behalf of insurance policy holders, the policy holders were the real parties in interest to that relief. But other courts, even within the Fifth Circuit, have distinguished that reasoning. Judge Fallon, for example, in some of the Vioxx cases, held that the Kentucky attorney general's action against Merck was not removable as a class action. He distinguished Caldwell, reasoning that it was decided under CAFA's mass action provision and the citizens of Kentucky were not the real parties in interest. Instead, the Kentucky attorney general was requesting injunctive relief and civil penalties, not damages as was the case in Caldwell.
The issue is an important one as the standard for certifying a class action has become more rigorous. Many commentators have argued that state attorneys general should step into the breach to provide relief and deterrence when actions aren't certifiable as class actions. Yet, questions remain about this approach. Specifically, most parens patriae statutes do not contain the same protections as Rule 23 does with regard to adequate representation. Plus, courts are often unsure how to evaluate issue or claim preclusion when a private citizen sues in the wake of a parens patriae action.
For the interested reader, yesterday's BNA Class Action Litigation Report had an article by Jessie Kokrda Kamens about the oral argument. Her take was that even though some justices questioned state attorneys generals' motives in bringing parens patriae actions, they weren't ready to declare them removable under CAFA.
Friday, October 25, 2013
According to the New York Times, the jury had also determined that Toyota had acted with "reckless disregard" and was about to begin deliberations on punitive damages when the settlement was announced. The New York Times article also appropriately emphasizes that the case is noteworthy because plaintiffs' tried their claims of electronic throttle control problems.
Though the New York Times article notes the ages of the plaintiff driver was 82 (the Los Angeles Times says she was 76), the New York Times article does not note that there have been in the past been particular concerns of pedal misapplication by older drivers, and the article does not reference a government report that found no problems in Toyota's electronic throttle control system. According to CNNMoney, Toyota apparently argued that the plaintiff in Oklahoma case hit the gas, rather than the brake. In response, plaintiffs pointed to long skid marks on the road, suggesting the driver was hitting the brake. One wonders if the event data recorder in this car might have shed more light on the issue. Toyota would certainly want to avoid having juries deciding unintended acceleration cases based on the believability of the testimony of a driver who claims to have hit the brake, rather than the accelerator. If Toyota is unable to exclude plaintiffs' proferred expert testimony of electronic throttle control defect on the grounds that such testimony is not scientifically reliable, then Toyota should also be concerned that the jury may be unable to grasp the arcane details of software code design. I'm reminded of the line by Robert Duvall's character in the film, A Civil Action, depicting the Woburn water contamination case; waiting for a jury decision, his character opines, "[I]t's not going to have anything to do with dates or groundwater measurements or any of that crap, which nobody can understand anyway. It's going to come down to people like it always does."
Tuesday, October 15, 2013
Friday, October 11, 2013
Defendants in the moldy washers cases have filed cert petitions once again after the 6th and 7th Circuits reinstated those liability only (or issue) class actions. You can find the briefs here and here.
It doesn't make sense for the Supreme Court to grant cert, but stranger things have happened.
Why don't I think the Court should grant cert? Commonality is clear, there aren't real damages issues because its an issue class action and the circuits are coming together on the question of issue class actions and their parameters (coalescing around the ALI proposals and the Manual on Complex Litigation) and these are squarely in the field where class actions are most useful - consumer claims. In other words, there's nothing adventuresome here for the Court to consider.
For more defense side links with a different point of view see the Volokh Conspiracy.
Wednesday, October 2, 2013
The New York Times reports that an appellate panel has remanded the BP settlement appeal for "clarification" of the settlement in response to BP's allegations that the settlement adminstrator was paying claims to non-injured claimants and engaging in other wasteful conduct.
Update: Here's the Fifth Circuit decision in the case.
In the human rights litigation over Argentina's "dirty war" of the 1970s and 1980s, a dispute over personal jurisdiction has reached the Supreme Court and will be argued on October 15 (DaimlerChysler AG v. Bauman). A group of Argentinian plaintiffs sued DaimlerChrysler AG, alleging that the company's Argentinian subsidiary participated in kidnappings and other serious wrongdoing. They sued in the Northern District of California. On the question of personal jurisdiction, the Ninth Circuit held that DaimlerChrysler was subject to general jurisdiction in California based on the contacts of its US subsidiary, Mercedes Benz USA. The Supreme Court granted certiorari to resolve the jurisdictional question.
The Vanderbilt Law Review has published an online roundtable concerning the case, and the initial papers -- by Donald Childress, Burt Neuborne, Suzanna Sherry, Linda Silberman, and myself -- are now available on the Vanderbilt Law Review En Banc website. My own contribution, entitled The Home-State Test for General Personal Jurisdiction, takes a strong view that the Ninth Circuit got it wrong. General jurisdiction over corporations requires a home-state relationship; it should not be founded merely on the contacts of a subsidiary acting as an agent, or on the fact that a company has a substantial presence or does substantial business in the forum state (even if that business is "continuous and systematic," to use the ambiguous and misleading language that the Supreme Court should finally abandon as a description of the sort of relationship that justifies general jurisdiction).
Thursday, September 26, 2013
The Supreme Court is set to hear arguments this term on the mass action exception as it relates to parens patriae suits in Mississippi ex rel Hood v. AU Optronics (see the coverage on scotusblog). The issue in that case is "Whether a state’s parens patriae action is removable as a “mass action” under the Class Action Fairness Act when the state is the sole plaintiff, the claims arise under state law, and the state attorney general possesses statutory and common-law authority to assert all claims in the complaint."
In another case percolating up, the 9th Circuit ruled on Tuesday that a collection of cases all brought in state court against one drug manufacturer with similar allegations of injury do not fall within the mass action exception and aren't removable. The case, Romo v. Teva Pharmaceuticals USA can be found on the 9th Circuit website. It involves a number of cases filed against the generic drug manufacturer in California. The plaintiffs moved to coordinate the cases in California courts. The defendant responded by trying to remove to federal courts, arguing that this falls under the jurisdiction of the federal courts because CAFA provides that more then 100 cases cases sharing common issues of fact or law proposed to be tried jointly may be removed -- the "mass action" exception. In In re Abbott Laboratories, Inc., 698 F.3d 568 (7th Cir. 2012) the 7th Circuit held that coordinated cases set to be consolidated "through trial" were subject to the mass action exception and were removable. The 9th Circuit distinguished Abbott and agreed with the plaintiffs that a consolidation for discovery purposes is not the same as a request to try the cases jointly, underscoring that jurisdictional provisions are strictly construed.
Tuesday, September 24, 2013
Monday, September 23, 2013
Marketplace has a segment about lead paint litigation today featuring our own Elizabeth Burch. The trigger is a lead paint trial that closed in California today. See here for a news story. The question posed is how the lead paint manufacturers have escaped the kind of liability that tobacco or asbestos. What's the difference? Here are some theories. Caveat: These are just some ruminations, not a definitive work on lead paint by any stretch.
1. Who's doing the suing?
Municipalities vs. victims: Beth points out that in these lead paint suits municipalities or states are pursuing a public nuisance theory against the paint manufacturers and this makes them different than some more successful mass torts. Some courts think that this doctrine is a bad fit with the wrong at issue. But not all lead paint cases have been brought by municipalities. In the beginning, much like tobacco or asbestos, these cases were brought on behalf of victims. This is a late-stage litigation after failures at the individual or group victim level.
Poor children vs. workers: The victims of lead paint were poor children who ingested the paint chips, whereas in the tobacco and asbestos cases they were adult workers. This is not a doctrinal explanation but a socio-political one.
Scienter: In tobacco there was evidence of misrepresentation and manipulation. That seems to be a big part of the argument in the California courtroom from press reports: what did the lead manufacturers know and when?
2. What's the doctrine?
Market share liability. First, and I think most importantly, the idea of market-share liability failed to gain traction after some initial gains early on. Without being able to tie a particular manufacturer to the apartment where the paint was ingested, plaintiff can't show that this manufacturer caused the harm. In that sense lead not like asbestos (where work places kept records) or tobacco (where people know what brand they smoked).
Public nuisance doctrine is a relatively novel theory for this type of mass tort. That doesn't make it wrong, but it doesn't make it an easy sell to courts either.
3. Is there insurance? The asbestos manufacturers had more insurance coverage than you'd think due to some loose underwriting in mid-century. What is the lead paint manufacturers' coverage and how is this affecting these suits?
More theories welcome.
Saturday, September 21, 2013
Vanderbilt Law School’s Branstetter Litigation & Dispute Resolution Program invites submissions for its 2014 New Voices in Civil Justice Scholarship Workshop, to be held May 12-13, 2014, at Vanderbilt Law School.
The New Voices format maximizes collegial interaction and feedback. Paper authors do not deliver prepared “presentations.” Rather, all participants read the selected papers prior to the session, and at each workshop, a senior faculty member provides a brief overview and commentary on the paper. Open and interactive discussion immediately follows.
1. Subject matter. Submitted papers should address an aspect of civil justice, broadly defined. Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decision-making, alternative dispute resolution, remedies, and conflict of laws. In keeping with the intellectual breadth of the Branstetter Program faculty, the Workshop welcomes all scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.
2. Author qualifications. To be eligible to submit a paper, scholars must currently hold either a faculty position or a fellowship.
3. Format / Anonymity. We will consider preliminary drafts, drafts under submission, or accepted papers that will not be published by the time of the workshop. Papers should be formatted either in Microsoft Word or Adobe Acrobat. To maintain the anonymity of the process, please remove any self-identifying information from the submission.
4. Deadline. Submissions should be e-mailed to Branstetter.Program@vanderbilt.edu no later than January 1, 2014. Please include your name, current position, and contact information in the e-mail accompanying the submission. We will contact you with our decision by February 15. Final drafts are due no later than April 15.
The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants. Additional information can be found at http://law.vanderbilt.edu/newvoices. If you have any questions, please email the chair of the selection committee, Brian Fitzpatrick, at email@example.com.ECB
This spring's 20th Annual Clifford Symposium at DePaul University College of Law is featuring Judge Jack Weinstein's Impact on Civil Justice in America. It looks like they have lined up an allstar cast, with Justice Stephen Breyer giving the special address. Speakers include:
Susan Bandes, DePaul University College of Law
Anita Bernstein, Brooklyn Law School
Shari Seidman Diamond, Northwestern University
Howard M. Erichson, Fordham University School of Law
David L. Faigman, University of California Hastings College of the Law
Kenneth R. Feinberg, Feinberg Rozen LLP
Richard D. Friedman, University of Michigan Law School
Judge John Gleeson, U.S. District Court, Eastern District of New York
John C.P. Goldberg, Harvard Law School
James R. Hackney, Northeastern University School of Law
Judith S. Kaye, Chief Judge (ret.) New York Court of Appeals; Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates
Alexandra D. Lahav, University of Connecticut School of Law
David Marcus, University of Arizona College of Law
Judge Brian R. Martinotti, Bergen County, New Jersey
Jennifer L. Mnookin, UCLA School of Law
Jeffrey Morris, Touro Law Center
Linda S. Mullenix, University of Texas School of Law
Robert L. Rabin, Stanford Law School
Judge Shira A. Scheindlin, U.S. District Court, Southern District of New York
Elizabeth Schneider, Brooklyn Law School
Tom R. Tyler, Yale Law School
Judge Jack B. Weinstein, U.S. District Court, Eastern District of New York
Adam Zimmerman. Loyola Law School, Los Angeles
The symposium takes place on April 24, 2014. Here's a link to the brocure.
Thursday, September 5, 2013
No procedural topic has garnered more attention in the past fifty years than the class action and aggregation of plaintiffs. Yet, almost nothing has been written about aggregating defendants. This topic is of increasing importance. Recent efforts by patent “trolls” and BitTorrent copyright plaintiffs to aggregate unrelated defendants for similar but independent acts of infringement have provoked strong opposition from defendants, courts, and even Congress. The visceral resistance to defendant aggregation is puzzling. The aggregation of similarly-situated plaintiffs is seen as creating benefits for both plaintiffs and the judicial system. The benefits that justify plaintiff aggregation also seem to exist for defendant aggregation — avoiding duplicative litigation, making feasible negative-value claims/defenses, and allowing the aggregated parties to mimic the non-aggregated party’s inherent ability to spread costs. If so, why is there such resistance to defendant aggregation?
Perhaps, contrary to theoretical predictions, defendant aggregation is against defendants’ self-interest. This may be true in certain types of cases, particularly where the plaintiff’s claims would not be viable individually, but does not apply to other types of cases, particularly where the defendants’ defenses would not be viable individually. These latter cases are explained, if at all, based on cognitive limitations. In any event, defendant self-interest does not justify systemic resistance to defendant aggregation. Likewise, systemic resistance is not warranted because of concerns of weak claims or unsympathetic plaintiffs, the self-interest of individual judges handling aggregated cases, or capture by defendant interests. This Article proposes that to obtain the systemic benefits of defendant aggregation and overcome the obstacles created by defendant and judicial self-interest, cognitive limitations, and capture, defendant aggregation procedures should use non-representative actions, provide centralized neutral control over aggregation, and limit aggregation to common issues. This Article concludes with a modified procedure to implement these principles: inter-district related case coordination.
Arguments that we have too much litigation (overclaiming) or too little (underclaiming) cannot be valid without estimating how many of the undecided claims that are brought (actual claims) or not brought (potential claims) have or lack legal merit. We identify the basic conceptual structure of such underclaiming and overclaiming arguments, which entails inferences about the distribution of actual or potential claims by their probability of success on the merits within a claims-processing institution. We then survey the available methods for estimating claim merit.
Wednesday, September 4, 2013
For those of us making brief reference to Ronald Coase in our Torts classes, here are a few links to helpful takes on Coase's scholarship and influence, in the wake of his recent passing: (1) Wall Street Journal editorial, The Wisdom of Ronald Coase; (2) Professor David Henderson (Naval Postgraduate School & Hoover Institution), The Man Who Resisted 'Blackboard Economics' (also in the WSJ); and (3) Cato Senior Fellow Walter Olson's post, Ronald Coase, 1910-2013.