Mass Tort Litigation Blog

Wasserman on Class Action Waivers

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.

ECB

Chevron v. Donziger Summary Judgment Motion

The saga continues with a 97 page opinion by Judge Kaplan denying the plaintiff Chevron's motion for partial summary judgment with leave to refile.   I haven't read the opinion yet but the table of contents promises a lot of fodder for civil procedure mavens, especially summary judgment and personal jurisdiction. 

You can find a copy of the opinon here.

You can find coverage of the opinion at these locations:

AbovetheLaw

Associated Press

Bloomberg News

And a great story about this piece of the long-standing litigation at the New Yorker last year.

ADL

 

Prempro Settlements Total: $896 Million So Far

You can find the story, including the litigation scorecard, by Jeff Feeley for Bloomberg News here.

H/T How Appealing

ADL

 

Prempro Settlements Total: $896 Million So Far

You can find the story, including the litigation scorecard, by Jeff Feeley for Bloomberg News here.

H/T How Appealing

ADL

 

Burch on Due Process and Securities Class Actions

Elizabeth Chamblee Burch (University of Georgia and co-blogger on this illustrious blog) has just posted Governing Securities Class Actions on SSRN.  Here's the abstract:

This short essay, written for a symposium on The Principles and Politics of Aggregate Litigation: CAFA, PSLRA, and Beyond, decouples due process from a proceduralist’s intuition and explains why it matters in securities class actions. It begins by exploring several analytical models that shed light on the representative relationship in class actions, including a public law analogy to the administrative state, a private law analogy to corporate law, and another, more modern public law analogy to political governance. After finding that the political-governance model best addresses both sources of inadequate representation in securities class actions — rifts between class members and class counsel, and between class members and their lead plaintiff — this Essay argues that incorporating qualified class members into securities class action governance will improve due process and legitimacy in securities litigation just as it does in the political sphere.

(h/t Robin Effron at the Civil Procedure and Federal Courts Blog).  I also address the issue of due process in class actions here.  Although I focus on mass torts, the argument extends to the securities context.  I am also working on a new project that tries to get away from governance analogies and focuses on the property reassignments created by the class action.  I hope to have the piece, entitled "The Trust Function of the Class Action," available soon.  In the meantime, Beth's essay is excellent and definitely worth reading!

SJC

Thomas J. Donahue on "Tort Tourism" in Foreign Courts

Thomas J. Donahue, President and CEO of the U.S. Chamber of Commerce, has an op-ed entitled, U.S. Firms Prone To 'Tort Tourism' In Foreign Courts, in Investor's Business Daily.  The op-ed particularly discusses the Chevron case in Ecuador. 

BGS

New Hampshire Tort Reform Using Offers of Settlement and Loser Pays

Walter Olson has an op-ed on recent New Hampshire tort reform involving early offers of settlement and loser pays.  Although New Hampshire's new approach concerns medical malpractice, one could imagine such reforms subsequently spreading to other areas of tort, including perhaps products liability.

BGS

NPR Interview with Ken Feinberg About His New Book

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.

BGS 

Recent Article on Classwide Injury

I am following up on Alexandra's post on the Supreme Court's recent grants of certiorari in class action cases.  As Alexandra points out, the Court is going to review two cases that address whether the plaintiffs have to prove the merits to obtain class certification.  I just wrote an article, Proof of Classwide Injury, that addresses this very issue, and the article is about to be published very shortly.  Here is the a link to a previous draft on SSRN and the abstract:

Federal courts have recently required proof of classwide injury to certify a class action for monetary remedies. Proof of classwide injury is defined as proof, which is common to the class, that the defendant's unlawful conduct injured every member of the class. This article argues that the requirement of proof of classwide injury arises from three fallacies about the class action. The first fallacy, the "all at once" fallacy, presumes that all issues in a class action must be determined in one fell swoop. I argue that the class action is not an "all at once" trial device but a trust device that entrusts the claims to class attorney so that he or she can make optimal investments on common issues. Thus, a class action can incorporate multiple trials, or even individualized trials. The second fallacy, the "extraordinary remedy" fallacy, analogizes the class action to extraordinary remedies like the preliminary injunction. Thus, proof of classwide injury is required because it allows a court to determine the plaintiffs' likelihood of success of the merits. However, in litigation involving numerous plaintiffs, the defendant can exploit economies of scale to invest in common issues that the plaintiffs cannot utilize in the absence of the class action. Thus, class certification is required before a merits determination, not after. The third fallacy, the "individualist" fallacy, presumes that individual trials as to each plaintiff's injury are required in the absence of proof of classwide injury to avoid compensating uninjured plaintiffs. I argue that individual trials will not necessarily result in more accuracy, and, more importantly, such accuracy is of secondary importance given the deterrence function of the litigation, which only requires an accurate determination of the defendant's aggregate liability. The article concludes that class certification only requires common questions concerning liability, not common answers as to individual injury. It also suggests factors other jurisdictions should consider in adopting, designing, and implementing similar collective procedures.

SJC

 

 

Class Actions and the Merits

For those feeling this term lacked excitement because there were not any class action cases, the Supreme Court has recently granted cert on two cases that address the question of class certification and the merits and another case considering the role of class representative.  

The question presented in Comcast Corp. v. Behrend  (No. 11-864) is whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the class is susceptible to awarding damages on a class-wide basis? 

The question presented in Amgen Inc. v. Connecticut Retirement Plans & Trust Funds (No. 11-1085) is (1) whether in a misrepresentation case under SEC Rule 10b-5 the district court must require proof of materiality before certifying a class based on the fraud on the market theory and (2) whether in such a case the district court must allow the defendant to present evidence to rebut the applicability of the fraud on the market theory before certifying on that theory. 

Followers of the class action docket will recall that in the banner 2010 term in which the court decided Wal-Mart v. Dukes, the Court also held in Erica P. John Fund Inc. v. Halliburton, 131 S.Ct. 2179 (2011) that plaintiffs in a securities class action need not prove loss causation at class cert.  But hints in the Wal-Mart opinion, particularly Justice Scalia's statement in the majority opinion that Daubert hearings may be appropriate at the class certification stage, indicated that the Halliburton case should not be read broadly.  The grant of certiorari in these two cases indicates that the court will consider whether the plaintiff needs to prove his or her case in tandem with the class certification motion. 

The Court also granted cert on a third class action case, Genesis Healthcare Corp. v. Symczyk (No. 11-1059), in which it will consider whether a named class representative who was given a Rule 68 offer of judgment before class certification has standing to represent the class that would fully satisfy her individual claim.  In other words, should defendants be allowed to pick off class representatives with offers of settlement?   This case has echoes of Evans v. Jeff D., 475 U.S. 717 (1986) in which the Court upheld a  offer of settlement that gave the civil rights plaintiffs everything they wanted in exchange for a waiver of attorney's fees. 

ADL

 

 

 

Collective Action Against Copyright Trolls

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? 

ADL

$300 Million Punitive Damages Award Against Iran and Syria for Terrorism Injuries

The United States District Court for the District of Columbia has awarded $300 million in punitive damages to plaintiffs bringing tort claims against Syria and Iran in connection with their alleged role in a 2006 suicide bombing attack in Israel; the recovering plaintiffs were all U.S. citizens.  The opinion is noteworthy not only for the size of the punitive-damages award, but also for the opinion's application of the terrorism exception to the Foreign Sovereign Immunities Act and the opinion's finding that the organization allegedly responsible for the attack was acting as an agent of Iran and Syria.  The Jurist also has an article on the opinion.

Although executing on such a judgment is likely difficult and sensitive matters of foreign policy may be implicated, the use of tort law (here, the claims included battery and intentional infliction of emotional distress) seems promising as a way to hold foreign states responsible for terrorism.  Indeed, multiple such claims have been litigated recently in the District of Columbia.  Apart from general attempts to execute on assets of the defendants seized abroad, perhaps payment of such claims might be raised by the U.S. Department of State in connection with any future regime change and new government in the defendant countries.

BGS

Chevron, Ecuador, and Allegations of Misconduct

In yesterday's Wall Street Journal, Mary Anastasia O'Grady has an article, Chevron's Ecuador Morass: The U.S. oil company charges that the $18 billion judgment against it was secured by fraud, which discusses Chevron's attempts in federal district court in Miami to obtain records to show bribery of a court expert.

Another article in today's Wall Street Journal discusses recent decisions from the Southern District of New York. In one opinion, the court allowed certain claims by Chevron, including RICO claims, to proceed against attorney Steven Donziger in connection with Donziger's alleged role as advisor in the Ecuadoran lawsuit, but in the other opinion, the court denied Chevron's motion to attach various assets. 

BGS 

Businesspersons in Law Firms

Interesting article in today's Wall Street Journal on the increasing influence of businesspersons in managing law firms -- Practicing Business: Professional Managers Gain Wider Presence at Law Firms, by Jennifer Smith and Ashby Jones.  As defense firms expand their offices globally and sometimes exceed a billion dollars in annual revenue, business expertise is clearly beneficial, but must be integrated with professional ethical responsibilities and firm culture.  Not discussed in the article are the possible benefits to plaintiffs' firms in including businesspersons.  Increasingly, plaintiffs' firms in mass torts are collaborating globally, as well, and might benefit from specialized business insight.  

BGS

Sixth Circuit Affirms Kentucky Fen-Phen Convictions

On Tuesday, the Sixth Circuit U.S. Court of Appeals affirmed the convictions and sentences of William Gallion and Shirley Cunningham for their handling of a massive settlement of fen-phen claims. Here is the  Sixth Circuit opinion, and here are news accounts from Thomson Reuters and Bloomberg. The lawyers had been sentenced to 25 years and 20 years, respectively. The opinion provides interesting and useful background on the diet drugs litigation and settlement, and it offers a picture of how badly things can go when mass tort aggregate settlements are mishandled. Because the Daubert exclusion of defendants' expert was an issue on appeal, the Sixth Circuit referred to my trial testimony as an expert on behalf of the United States -- I don't know whether I should be offended or flattered that I was accused of espousing ivory tower ideals, but I take some solace in knowing that the court thought the ivory tower had it right.

HME

AALS Workshop on Torts, Environment & Disaster

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.

The conference will take place June 8-10 at the Claremont Hotel in Berkeley. The brochure is here. A TortsProf plug for the conference is here. 

HME

Campos on Brown on Specious Claims

I recently wrote on Jotwell a glowing review of an article by S. Todd Brown entitled "Specious Claims and Global Settlement."  The review can be accessed here, but I highly encourage everyone to read the article itself, which is excellent.

SJC

Introducing... Stanford Journal of Complex Litigation

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.

BGS

***

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 sjcl_submissions@lists.stanford.edu. 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 sjcl_editors@lists.stanford.edu. 

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. 

Regards, 

Nick Landsman-Roos & Matt Woleske

Editors-in-Chief, Stanford Journal of Complex Litigation

sjcl_editors@lists.stanford.edu 

Move Over Amchem - The BP Settlement Class Action Is Here

George Conk has the links to the BP settlement class action.  A quote from the complaint: "The principle was two-fold:  to design claims frameworks that fit a wide array of damage categories, and, within each category, to treat like claims alike, so as to proceed with both fairness and predictability."  

Conk also notes that the settlement offers a "risk transfer premium" for future injuries/losses.   You can find more posts here.

Interesting to think how the court will treat this high profile settlement class action, whether there will be objectors and appeals.

ADL

McKenzie on the Bankruptcy Model for Mass Torts

Troy McKenzie (NYU) has posted "Toward a Bankruptcy Model for Non-Class Aggregation."  I look forward to reading it.  Here is the abstract:

In recent years, aggregate litigation has moved in the direction of multidistrict litigation followed by mass settlement without certification of a class action — a form commonly referred to as the “quasi-class action.” Driven by increased restrictions on class certification, the rise of the quasi-class action has been controversial. In particular, critics object that it overempowers lawyers and devalues the consent of individual claimants in the name of achieving “closure” in litigation. This Article presents two claims.

First, the debate about the proper scope and form of the quasi-class action too frequently relies on the class action as the touchstone for legitimacy in aggregate litigation. References to the class action, however, are more often misleading than helpful. The basic assumptions behind the class action are different in degree and in kind from the reality of the quasi-class action. Overreliance on the class action as the conceptual framework for aggregation carries the significant risk of unintentionally shackling courts in their attempts to coordinate litigation. The very reason the quasi-class action emerged as a procedural device — the ossification of the class action model of litigation — suggests that courts and commentators should look for another reference model when assessing what is proper or improper in quasi-class actions.

Second, bankruptcy serves as a better model for judging when to use, and how to order, non-class aggregation of mass tort litigation. The entirety of bankruptcy practice need not be imported to realize that bankruptcy may provide a useful lens for viewing aggregation more generally. That lens helps to clarify some of the most troubling concerns about the quasi-class action, such as the proper role of lawyers and the place of claimant consent. Bankruptcy serves as a superior reference model because it starts with an assumption that collective resolution is necessary but tempers the collective with individual and subgroup consent as well as with institutional structures to counterbalance excessive power by lawyers or particular claimants.

ADL