Sunday, September 27, 2015
Amanda Bronstad at the National Law Journal recently published an article titled Good Ol' Boys Clubs in MDL that includes a list of law firms that I recently identified as firms with the most lawyers appointed to leadership positions in products liability MDLs. Given the title of her piece, I thought readers might also be interested in the gender breakdown of lead lawyers in those multidistrict litigation cases. Of the top fifty lawyers who were appointed most frequently, only 11 of the 50, or approximately 22% were female. The full list of those attorneys is available in Judging Multidistrict Litigation, 90 N.Y.U. L. Rev. 71, 139-40 (2015) (gender breakdowns are mentioned in footnoted 102).
Wednesday, September 23, 2015
Harvard Business Review has a an article, What VW Didn't Understand About Trust, by Andrew Wilson. As perhaps occurred in the Toyota Unintended Acceleration Litigation, VW may be motivated to settle somewhat swiftly any civil litigation or regulatory or criminal inquiries and fines, as part of a larger strategy to regain the public's trust and preserve its brand.
Monday, September 14, 2015
Professor David Logan (Roger Williams) has posted to SSRN his article, Judges, Juries, and the Politics of Tort Reform, 83 U. Cin. L. Rev. 903 (2015). Here's the abstract:
The civil justice system has many repeat players with a deep interest in the civil justice system because they are often the target of personal injury lawsuits, most prominently product manufacturers and physicians, and the companies that insure them. Following a blueprint drafted by leading corporate lawyer Lewis Powell, prior to his appointment to the Supreme Court of the United States, these deep pocket interests have spent four decades and tens of millions of dollars maligning the civil jury and trying, with notable success, to influence legislators, administrators, and judges, both state and federal, under the catchy, but misleading banner of “tort reform.” These campaigns have been amplified by media coverage of the civil justice system that has been unsophisticated, and at times misleading.
This article argues that separation of powers concerns counsel that we should be cautious about constricting the role of the jury, one of our most democratic institutions. Juries provide checks and balances on government; juries are independent; juries bring community values into the judicial system; juries are fair; juries legitimatize the civil justice system; and, juries generally “get it right.”
Instead of draconian reforms like damage caps, the article argues for the primacy of judges when adjustments to the civil justice system are called for. Judges bring legal experience and knowledge not shared by most legislators and administrators; the nature of the judicial process makes judges predictable and their work transparent; judges are far less likely to be “captured” by special interests than legislators and administrators; and state judges have the best perspective of how the civil justice system works and are thus in the best position to implement reforms when necessary.
The article concludes with a survey of various tools, some time-tested and others novel, by which judges can oversee the work of juries, and the civil justice system more generally.
Professor Howard Erichson (Fordham Law and Editor, Mass Tort Litigation Blog) has posted to SSRN his article, Judge Jack Weinstein and the Allure of Antiproceduralism, 64 DePaul L. Rev. 393 (2015). Here's the abstract:
In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor of substantive justice, but technicalities are in the eye of the beholder, and this Article asks what is lost when a judge steers around procedural constraints.
Saturday, September 12, 2015
Vanderbilt Law School has issued its call for papers for the 2016 New Voices in Civil Justice Scholarship Workshop. Alexi, Sergio, and I have all attended these in the past and can attest that it's a great way to get feedback from senior scholars in the field. More information is available here.
Tuesday, August 18, 2015
Daniel Fisher at Forbes has an article, Investing In Lawsuits Is Heating Up, Aided By Electronic Platform, discussing LexShares.
Saturday, August 15, 2015
The University of Haifa in Israel is hosting an international conference on the Legal Resolution of Mass Disputes on November 26-27, 2015. The conference includes a remarkable gathering of speakers from numerous countries. Participating academic speakers include the following: Dean Gad Barzilai (U. Haifa) and Professors Arthur Miller (NYU Law), Christopher Hodges (Oxford U.), Alon Klement (IDC Herzliya), Geraint Howells (City U. of Hong Kong), Stefaan Voet (U. Leuven), Willem Van Boom (U. Leiden), Astrid Stadler (Konstanz U.), Rhonda Wasserman (U. Pittsburgh), Rabeea Assy (U. Haifa), Ariel Flavian (U. Haifa), Morris Ratner (UC Hastings), Orna Rabinovich Einy (U. Haifa), Linda Mullenix (U. Texas), and Hélène van Lith (Sciences Po Law Paris).
Monday, June 8, 2015
The Supreme Court this morning granted certiorari in Tyson Foods v. Bouaphakeo. The questions presented are:
(1) Whether differences among individual class members may be ignored and a class action certified under Federal Rule of Civil Procedure 23(b)(3), or a collective action certified under the Fair Labor Standards Act, where liability and damages will be determined with statistical techniques that presume all class members are identical to the average observed in a sample; and (2) whether a class action may be certified or maintained under Rule 23(b)(3), or a collective action certified or maintained under the Fair Labor Standards Act, when the class contains hundreds of members who were not injured and have no legal right to any damages.
You can find more information on the case at SCOTUSBLOG.
Tuesday, May 19, 2015
Adam Zimmerman has written a really interesting post on the legacy of the 9/11 Victim Compensation Fund and the subsequent litigation over the 9/11 attack. He focuses on the rise of databases and registries designed to improve the disposition of individual claims. The post can be found here, and Adam will continue to blog at Prawfsblawg for the rest of the month.
Monday, May 18, 2015
The Supreme Court has just granted cert in Campbell-Ewald Company v. Gomez on the following questions, the first two being relevant to an important ongoing circuit split in class action law:
(1) Whether a case becomes moot, and thus beyond the judicial power of Article III, when the plaintiff receives an offer of complete relief on his claim; (2) whether the answer to the first question is any different when the plaintiff has asserted a class claim under Federal Rule of Civil Procedure 23, but receives an offer of complete relief before any class is certified; and (3) whether the doctrine of derivative sovereign immunity recognized in Yearsley v. W.A. Ross Construction Co., for government contractors is restricted to claims arising out of property damage caused by public works projects.
You can find more on SCOTUSBLOG. It used to be that the courts understood that a person purporting to represent a class had a special duty to that class - an ethical duty - to pursue the claims with fidelity to the other class members. This is why courts ask whether a class member is typical of other class members and adequate to represent them. A class member who is offered a personal settlement and refuses it so that he can represent his fellows is following through on that duty to the rest of the class members. It also used to be that the courts appreciated that some people bring suits for vindication or to change the law, even if they will only receive nominal damages. An offer of settlement does not achieve these things - it cannot achieve them - because vindication and legal effect requires a judge to issue a judgment, which only a court can issue. In other words, an offer of full compensation is not full relief, because it does not include a judgment. Most people still prefer a guarantee of compensation to an uncertain outcome in a judgment, but that does not mean that they are required to accept something less than a court issued judgment about their case. The question of mootness posed in Gomez does not require looking at Rule 23, but Rule 23's requirements and the due process requirements of class action caution against a mootness ruling in Gomez that would vitiate the duty that a class representative owes his fellow class members. This is because to find that the case can be mooted by a mere offer of settlement would require an inference that the class representative may accept that offer with impunity because he owes no duty to continue with the case on behalf of others after he has been offered full monetary relief.
Thursday, May 14, 2015
Via Patricia W. Moore at the Civil Procedure and Federal Courts Blog, Brooke Coleman has written a post on Prawfsblawg on the "conceptual sketches" provided by the Rules Advisory Committee concerning proposed amendments to Rule 23. The post can be found here, and Coleman plans to discuss the sketches further in a future blog post.
It is also worth noting that Coleman, Liz Porter and David Marcus have organized the First Annual Civil Procedure Workshop, where members of the Class Action Rules Subcommittee of the Rules Advisory Committee will appear to discuss the proposed Rule 23 amendments. The workshop looks fantastic and is definitely worth attending!
Sunday, May 10, 2015
There is an interesting column in Bloomberg Business about the ongoing Chevron/Ecuador litigation. It discusses a pending appeal before the Second Circuit over Chevron's use of civil RICO to enjoin the enforcement of the Ecuadorian judgment against them. The column discusses, albeit briefly, the possible ramifications of a ruling allowing defendants to enjoin judgments by alleging that the plaintiffs' attorneys engaged in a scheme of extortion in violation of RICO. For a rundown of the oral argument, which was conducted on April 20th, check out this post here.
Friday, May 8, 2015
On February 27, 2015, the Committee on the Judiciary, Subcommittee on the Constitution and Civil Justice, held a hearing on the state of class actions post-CAFA. The witnesses' lack of ideological diversity (with Professor Moore as a single exception) is extremely troubling. The committee heard testimony from: Andrew Pincus (Partner, Mayer Brown, U.S. Chamber Institute for Legal Reform), John Parker Sweeney (President, DRI - the Voice of the Defense Bar), Jessica D. Miller (Partner, Skadden Arps), and Professor Patricia Moore (St. Thomas Univ. School of Law).
I want to point out an interesting article by Malcolm Gladwell in the New Yorker that looks back at the litigation surrounding the Ford Pinto case. Although the article talks about the criminal prosecution and some of the legal issues briefly, it focuses on the engineers in the case and their ex ante decisions to issue recalls. In my view, the ex ante decisions of engineers, and their inherent difficulty, do not get nearly enough attention in the media, even though the defendant's liability in mass tort cases always hinges on these decisions. A good read overall.
Wednesday, May 6, 2015
Yale Law Journal is publishing a note by Geoffrey Shaw on the latest hot topic in class litigation, class ascertainability. Here's the SSRN abstract:
In recent years, federal courts have been enforcing an “implicit” requirement for class certification, in addition to the explicit requirements established in Rule 23 of the Federal Rules of Civil Procedure. The ascertainability requirement insists that a proposed class be defined in “objective” terms and that an “administratively feasible” method exist for identifying individual class members and ascertaining their class membership. This requirement has generated considerable controversy and prevented the certification of many proposed classes. The requirement has taken a particular toll on consumer class actions, where potential class members are often unknown to the representative plaintiffs, often lack documentary proof of their injury, and often do not even know they have a legal claim at all.
This Note explores the ascertainability requirement’s conceptual foundations. The Note first evaluates the affirmative case for the requirement and finds it unpersuasive. At most, Rule 23 implicitly requires something much more modest: that classes enjoy what I call a minimally clear definition. The Note then argues that the ascertainability requirement frustrates the purposes of Rule 23 by pushing out of court the kind of cases Rule 23 was designed to bring into court. Finally, the Note proposes that courts abandon the ascertainability requirement and simply perform a rigorous analysis of Rule 23’s explicit requirements. This unremarkable approach to class certification better reflects what the Rule says and better advances what the Rule is for.
Our friends at the FJC and Administrative Office of the U.S. Courts, Emery Lee, Catherine Borden, Margaret Williams, and Kevin Scott have posted their latest empirical analysis of multidistrict litigation on SSRN. Here's the abstract:
Following the judiciary's experience with aggregate litigation in the 1960s, Congress established a procedure for the transfer of related cases to a single district court for coordinated pretrial proceedings. Originally designed to achieve efficiencies associated with coordinated discovery, the multidistrict litigation (MDL) process evolved from a rather modest starting point to become a central part of aggregate litigation in the federal courts today. Despite its importance, however, there is little empirical research on the MDL process. This article seeks to fill this gap in the empirical literature by addressing a few central questions about the work of the Judicial Panel on Multidistrict Litigation (Panel). Using a unique database, we examine how that body decided motions to centralize multidistrict litigation. We find, most importantly, that the Panel became more likely to order centralization of proceedings over time, after controlling for other factors. That trend is not, however, apparent in the most recent years' data. We also find, all else equal, that the Panel is more likely to centralize a proceeding including class allegations, and more likely to centralize proceedings raising certain kinds of claims.
Thursday, April 30, 2015
In conjunction with its annual meeting each year, the American Law Institute hosts a CLE the day before the meeting begins. This year, there are two programs that may be of interest to readers on Sunday, May 17, 2015:
1) Changes for Federal Rule of Civil Procedure 23? An Open Forum with the Rule 23 Subcommittee of the Advisory Committee on Civil Rules; and
2) Ethical Issues in Class Actions and Non-Class Aggregate Litigation.
The panels run from 1:30-3:00 p.m. and 4:00-6:00 p.m., respectively and are located in the Ritz-Carlton Hotel in Washington, D.C. I understand that panel members on the second panel will include Bob Klnonoff, Elizabeth Cabraser, Judge Diane Wood, Judge Lee Rosenthal, Sam Issacharoff, John Beisner, and myself among others. Hope to see you there!
There's been a lot of chatter over the past few years about the greater use of issue classes. The Rule 23 Subcommittee in its recent report (p. 41) indicated that issue classes top its agenda for possible reform and there's been a greater willingness to rely on Rule 23(c)(4) among the circuit courts over the last few years. Much of the scholarship on issue classes thus far, however, has focused on how to use issue classes in conjunction with Rule 23(b)(3)'s predominance requirement. Professor Laura Hines (Kansas) has, for instance, written a series of articles on the topic and there have been several debates in symposium pages, such as DePaul's 2013 symposium.
Whatever side of the debate one adheres to on the to-be-or-not-to-be question, the courts are embracing issue classes. Thus, there remains much work to be done on discerning which issues should qualify for certification, how to think about Seventh Amendment Reexamination Clause questions, and how to compensate plaintiffs' attorneys who initiate issue classes.
I've recently written a paper on issue classes that takes some steps toward fleshing out these problems. The paper is long since it's meant to be a one-stop shop for judges and attorneys on the subject, but here are the critical points worth underscoring:
First, one of the main difficulties of our system is that the focus in massive lawsuits has shifted to the ways in which the plaintiffs are dissimilarly situated, even when the defendant's conduct is uniform. Take the GM ignition switch debacle or the Toyota acceleration cases, for example. Corporate actions are nonindividuated; it doesn't make sense to litigate what GM or Toyota did in 40,000 different cases. (Draft pp 5-8) But defendants have successfully shifted the procedural focus to how their behavior affected claimants, which tends to defeat class certification because common questions do not predominate over individual ones. The issue class has the potential to recapture what is common to the plaintiffs: defendant's conduct--at least so long as that conduct is nonindividuated. One can capture this notion by divvying up the legal elements in any claim or defense as "conduct components," which concern the defendant's conduct, or "eligibility components," which concern a plaintiff's eligibility for relief. (Draft pp 15-29)
Second, by embracing the standard suggested by the ALI's Principles of the Law of Aggregate Litigation, courts can ease the supposed tension (to the extent any remains) between Rule 23(c)(4) and Rule 23(b)(3). (Draft pp 31-32) Courts should certify issue classes where resolving the issue would "materially advance the resolution of multiple civil claims by addressing the core of the dispute in a manner superior to other realistic procedural alternatives, so as to generate significant judicial efficiencies." (Principles, 2.02(a)(1), 2.02 cmt. a, 2.08, 2.08 cmt. a) Predominance is embedded in the "materially advance" language and superiority is included as a condition that certifying the issue would be "superior to other realistic alternatives" such that it "generate[s] significant judicial efficiencies." Moreover, the courts themselves seem to have reached a general consensus on this matter, with even the Fifth Circuit embracing issue classes in In re Deepwater Horizon, 739 F.3d 790, 804 (5th Cir. 2014). (Draft p. 30)
Third, courts must figure out a way to compensate (and thus incentivize) plaintiffs' attorneys. This is perhaps the trickiest part because of both the lack precedent and doctrinal hurdles such as Lexecon. Lexecon presents a special challenge in multidistrict litigation cases where issue classes might prove most useful. Nevertheless, one need not invent a theory out of whole cloth. Charging liens and the common-benefit doctrine provide sound analogies for fashioning a coherent path forward. (Draft pp 42-50)
Finally, there are some hurdles to making issue classes stick, such as preclusion doctrines, adequate representation, and the Seventh Amendment Reexamination Clause. Thus, the paper concludes by suggesting solutions to these problems and arguing that preclusion can provide a way to coordinate dispersed public and private regulators.
As always, comments are welcome (eburch at uga.edu).
April 30, 2015 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Tobacco, Vioxx | Permalink | Comments (0) | TrackBack (0)