Sunday, July 14, 2013

Paul McMahon on Proceduralism, Civil Justice, and American Legal Thought

Professor Paul McMahon (Harvard) has posted to SSRN his article, Proceduralism, Civil Justice, and American Legal Thought, 34 U. Pa. J. Int'l L. (forthcoming).  Here's the abstract:

American legal scholars spend a large proportion of their time debating and theorizing procedure. This Article focuses on American proceduralism in the particular field of civil justice and undertakes a detailed comparison with England, where procedural questions receive little academic attention. It finds that procedure is more prominent in America partly because Americans have been more willing than others to use private litigation as a tool for regulation. More significantly, procedural questions necessarily occupy more space in American debates because authority over civil justice is unusually dispersed among different actors; procedural rules allocate power among these actors. But American proceduralism runs deeper than these surface explanations allow, and a full account requires an examination of the history of American legal thought. I trace contemporary American proceduralism to a counter-intuitive source: the emergence of Legal Realism in the 1920s and 1930s.

BGS

July 14, 2013 in Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 3, 2013

Justice Kagan Interview

You can find an interview with Justice Kagan here.  

 

At around 20:52 you can see her speaking about Italian Colors and then whether this is a pro-business Supreme Court.

Note the caveat then the description and what looks like a "yes".  She says:

"None of us decide cases based on who the parties are.  Its not like the Chamber of Commerce appears in court and you say I like the Chamber of Commerce...or a consumer appears in court and you say I like consumers or they need more protection or they don't.  I mean, I think people look at the individual cases before them.  But I do think in a number of cases with respect to a number of areas of law there is a majority of the court that has a set of legal views that, you know, provide some significant relief from both federal and state regulation to businesses.  So if you look at just even the last couple of weeks of the term there were a couple of cases in which the Court very restrictively read anti-discrimination laws, made it harder to bring anti-discrimination suits.  There was another case where the Court made it harder for local governments to put conditions on development permits or to do environmental mitigation of some kinds.  There was another case where people made it -- where the Court made  it -- much harder for injured plaintiffs who have had terrible reactions to various kinds of pharmaceutical drugs to sue for injury.  So I think there were a number of cases where the Court made it more difficult for injured persons to come to court and to use federal and state law to hold business to account for injuries that they've done."

At 31.09 Toobin asks her about public opinion's effect on the Court - do they read polls?  Her answer, not really any more enlightening than you'd think it would be:

"I don't think we read polls like that and I don't think polls influence what we do, but you know, on the other hand, we live in a world and I think...all of us are products of that world and understand things that are going on with it.  And I think it would just not be right to say that the trends in what people think and societal attitudes don't affect what the Court does."

ADL

July 3, 2013 in Current Affairs, Preemption | Permalink | Comments (0) | TrackBack (0)

Thursday, May 23, 2013

Lawyering for Groups

The papers from the Fordham Law Review Symposium Lawyering for Groups are now online.

Howard Erichson & Ben Zipursky wrote the Foreword.

Other contributors include.....

Elizabeth Burch, Adquately Representing Groups

Kristen Carpenter & Eli Wald, Lawyering for Groups: The Case of American Indian Tibal Attorneys

Samuel Issacharoff, The Governance Problem in Aggregate Litigation

Alexandra Lahav, The Political Justification for Group Litigation

Troy McKenzie, "Helpless" Groups

Nancy Moore, Ethical Issues in Mass Tort Plaintiffs' Representation: Beyond the Aggregate Settlement Rule

ADL

 

 

 

 

 

 

 

 

May 23, 2013 in Ethics, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Distributive Justice in Action

There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."

The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface.  How should people with similar injuries be compensated when they have different life circumstances?  Should weathier people receive less (or more) compensation than poorer people with similar injuries?  Should emotional harm be compensated?  What about fraud, the flip side of desert?  These questions arise in ordinary tort litigation and in mass tort litigation as well.  What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law.  But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries. 

Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss.  There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be.  These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life.  Should these funds track the tort system?  The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities.  The tort system presently often reinforces existing social inequalities in compensation, should it?  Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well? 

Also notable, the article points out that the number of funds has accelerated in the 21st century.  According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.  

ADL

May 15, 2013 in Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Distributive Justice in Action

There is a very nice, lauditory article on Kenneth Feinberg in the New York Times today: "One Man Disperses Charity After Tragedy in Boston."

The interesting thing about the compensation funds Feinberg is often asked to run are the way they bring distributive justice issues that are always imbedded in tort litigation to the surface.  How should people with similar injuries be compensated when they have different life circumstances?  Should weathier people receive less (or more) compensation than poorer people with similar injuries?  Should emotional harm be compensated?  What about fraud, the flip side of desert?  These questions arise in ordinary tort litigation and in mass tort litigation as well.  What any fund, whether created by an insurance company, a mass tort litigation, a charitable foundation or the government can do that ordinary decentralized tort litigation cannot is treat similarly situated people equally, which is the promise of the common law maxim that like cases ought to be treated alike and the foundation of the rule of law.  But that raises difficult questions about what it means to treat people alike who are different from one another but suffered similar injuries. 

Perhaps because these funds aren't governed by legal prinicples but instead by charitable ones, the issues of distributive justice, luck and social inequality are easier to discuss.  There is no legally imposed baseline of how compensation is to be awarded, so this opens up our thinking about how things ought to be.  These are the fundamental philosophical issues of tort law in the United States, and decision-maker's philosophy affects how the law and non-legal funds (like the One Fund Boston) operate in real life.  Should these funds track the tort system?  The 9/11 fund kind of did (not completely), and in his book "What is Life Worth?" Feinberg notes that he would have preferred to pay everyone a flat amount rather than distinguish based on earning capacity and other factors that end up reflecting societal inequalities.  The tort system presently often reinforces existing social inequalities in compensation, should it?  Similarly, as PTSD on the military side has become more recognized as disabling, will we reach a point where emotional trauma receives more recognition on the civil justice side as well? 

Also notable, the article points out that the number of funds has accelerated in the 21st century.  According to the article, between 1984 and 2010 Feinberg worked on five such funds, since then he's worked on five more.  

ADL

May 15, 2013 in Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 29, 2013

Engle's Progeny March On

Earlier this month two tobacco trials with origins in the Florida Supreme Court's affirmation of classwide issue preclusion in Engle resulted in large awards. 

Searcy v. R.J. Reynolds Tobacco Co., M.D. Fla., No. 3:09-cv-13723, verdict rendered 4/1/13.  26 million.

Aycock v. R.J. Reynolds Tobacco Co., M.D. Fla., No. 3:09-cv-10928, verdict rendered 4/18/13.  5.6 million.
Juries found comparative negligence on the part of smokers in both cases.  See BNA Class Action Reporter for analysis and details.
ADL

April 29, 2013 in Tobacco | Permalink | Comments (0) | TrackBack (0)

Thursday, April 25, 2013

One Fund Boston

Over at the Conglomerate Blog, Christine Hurt has a great post on the One Fund Boston and individual victim fundraising.  Her blog post is entitled One Fund Boston, Torts and Social Capital.

ADL

 

April 25, 2013 in Informal Aggregation, Mass Disasters, Resources - Other Blogs of Interest, Weblogs | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 17, 2013

Adequately Representing Groups

As we as scholars and practictioners begin to explore class action alternatives, one problem continues to arise: when to preclude subsesequent litigation.  Of course, this problem arose early on in the class action's history, most notably with (b)(2) civil rights cases where some class members disagreed fundamentally over the remedy requested.  But the problem has persisted in multidistrict litigation and, perhaps most notably, in parens patriae actions. I explore this problem and propose a solution in my latest piece, titled Adequately Representing Groups.  Here's the SSRN abstract, which gives a brief summary of the proposed solution:

Adequate representation and preclusion depend on whether the courts treat a litigant as part of a group experiencing an aggregate harm or as a distinct person suffering individual injuries. And though a vast literature about adequate representation exists in the class-action context, it thins dramatically when contemplating other forms of group litigation, such as parens patriae actions and multidistrict litigation. As class actions have gradually fallen into disfavor and attorneys and commentators seek alternative means for resolving group harms, the relative clarity of Rule 23 wanes. How should courts evaluate adequate representation in parens patriae actions and in multidistrict litigation? The answer to this question matters immensely since adequate representation is critical to precluding relitigation and achieving finality.

This Article suggests that courts should differentiate between inadequate representation claims based on the underlying right at stake. When the underlying right arises from an aggregate harm — a harm that affects a group of people equally and collectively — and demands an indivisible remedy, courts should tolerate greater conflicts among group members when evaluating a subsequent claim of inadequate representation. Because the harm is aggregate and the remedy is indivisible (typically declaratory or injunctive relief), if one group member receives the remedy, then they all receive the remedy. The litigation operates to group members’ benefit or detriment equally, so if one group member is inadequately represented, they are all inadequately represented. Consequently, a subsequent litigant can successfully avoid preclusion only where the lawyers or the named representatives acted contrary to the group’s best interests or attempted to represent an overinclusive, noncohesive group where some members required unique relief that the representative had no selfish reason to pursue.

Conversely, when plaintiffs suffer individual injuries at the same defendant’s hands and unite their claims for economic or efficiency reasons, that aggregation does not convert their individual injuries into an aggregate harm. When counsel fails to fairly represent her client in vindicating that harm, inadequate representation is an individual injury. In multidistrict litigation and Rule 23(b)(3) class actions, which typically include individuals litigating their individual harms together for systematic and litigant efficiency, courts should look for “structural conflicts” between the claimants themselves as well as between the representatives and the claimants. This means that both initially and on a collateral attack, courts should accept fewer conflicts than in cases involving aggregate rights. Accordingly, judges should assess whether there are reasons the lawyers “might skew systematically the conduct of the litigation so as to favor some claimants over others on grounds aside from reasoned evaluation of their respective claims or to disfavor claimants generally vis-à-vis the lawyers themselves.”

ECB

April 17, 2013 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Dodge on Disaggregative Mechanisms

Jaime Dodge (Georgia) has posted Disaggregative Mechanisms: The New Frontier of Mass-Claims Resolution Without Class Actions on SSRN. Here's the abstract:

Aggregation has long been viewed as the primary if not sole vehicle for mass claims resolution. For a half-century, scholars have consistently viewed the consolidated litigation of similar claims through joinder, class actions and more recently multi-district litigation as the only mechanism for efficiently resolving mass claims. In this Article, I challenge that long-standing and fundamental conception. The Article seeks to reconceptualize our understanding of mass claims resolution, arguing that we are witnessing the birth of a second, unexplored branch of mass claims resolution mechanisms — which I term “disaggregative” dispute resolution systems because they lack the traditional aggregation of common questions that has been the hallmark of traditional mass claims litigation. Disaggregation returns to a focus on the individual akin to that of the single-plaintiff system, but uses either procedural or substantive streamlining, or a shift of costs to the defendant, to correct the asymmetries that prompted the creation of class actions. Many of our most innovative claims structures — from the BP GCCF and the fund created in the wake of the Costa Concordia disaster, to the common single-plaintiff arbitration clauses in consumer and employment agreements — use this new, bottom-up model of disaggregative mass claims resolution instead of the familiar top-down aggregative model.

These next-generation systems have been heralded as a significant advancement in mass claims resolution, capable of awarding more compensation to claimants more quickly and at lower cost than aggregate litigation. But like the single-plaintiff and aggregate litigation systems that preceded it, disaggregation has its flaws. Because the defendant typically designs these systems, they often give rise to questions about legitimacy and the accuracy of compensation. More shockingly, situating disaggregation within the existing doctrinal trends reveals that the rise of disaggregation allows corporations to avoid class actions in a far broader swath of cases than has previously been identified — such that class actions will, as a practical matter, proceed only at the defendant’s election, raising substantial questions about the viability of private actions as a mechanism for the enforcement of law. Yet, because these systems are the product of contract, attempts to restrict these systems have largely failed. The answer to these problems lies in an unlikely and potentially controversial approach: expanding rather than restricting the availability of disaggregation, by creating a public mechanism for disaggregation — comparable to the existing public aggregation mechanisms.

Looks really interesting and definitely worth a read!

SJC

April 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, April 12, 2013

Epstein on Comcast

I want to point out that Richard Epstein just posted a nice column on Comcast v. Behrend, which can be found here.  In the column Epstein puts nicely one of the points I tried to make in my last post on Comcast: 

The ultimate question in these cases is whether the price increase was attributable to the added concentration, and for that question the regressions have to be admitted because they apply to the class as a whole. The information on the four possible sources of the increase should not be looked at in the alternative; if examined at all, the theories should be treated at most as cumulative descriptive evidence that is weaker in kind than the quantitative evidence in the regression itself. It is therefore a plus that the regression is not tied to the overbuilding theory. If this analysis is correct, it is mistaken to insist that the harms suffered by the plaintiff class do not derive from the distinctive overbuilding theory put forward by the plaintiff. Instead, the numbers tell the key story, as each of the four theories mentioned could offer a partial explanation as to the subsidiary question of how the antitrust injury came to pass.

The whole thing is worth a read!

SJC

 

April 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

Comcast Puzzles

Hi everyone.  It has been a while since I rapped at ya.  I recently did an opinion analysis of Comcast v. Behrend for SCOTUSBlog (see here).  I have been puzzling over the opinion ever since, and I was wondering what you guys think about the opinion.

Here is what confuses me. A majority concluded that the plaintiffs-respondents failed to satisfy the "predominance" standard of Rule 23(b)(3). Specifically, the majority found that an expert model used to determine damages was insufficient because the model did not set out to isolate the one antitrust theory (out of four) certified by the district court. From what I can tell, the model was basically a simple comparison between the actual prices in the Philadelphia area and what the prices would have been "but for" the antitrust violation.  The "but for" market was constructed to reflect a competitive market.  

As I understand it, this is a standard method of determining an overcharge in an antitrust case.  Moreover, I am not sure it makes sense to isolate one antitrust violation to determine the "but for" price. As put by the dissent, the majority ignores the fact that if an antitrust violator is successful, then it would deter not only existing competitors from entering the market, but potential ones as well, making the competitive market the logical "but for" comparator. 

So here is my first question: If this method of determining antitrust damages is generally accepted, then isn't predominance always satisfied?  Doesn't this method show that damages in antitrust cases are always capable of proof on a common basis?  I recognize that there may be exceptions, such as the individual contracting found in Hydrogen Peroxide, but in Comcast and in many other consumer antitrust cases the prices are not usually subject to a great deal of negotiation.  People usually pay according to the same price schedule, which lends itself to an overcharge analysis like the one proposed by the plaintiffs in Comcast.

Another weird thing about the case is that the plaintiffs conceded that they had to show they could determine damages on a common basis.  That has not been the case for antitrust class actions, where bifurcation has been an accepted method of distributing damages.

So here is my second question: If bifurcation is always an available method of distributing damages, then does it matter that the plaintiffs conceded that they could prove damages on a common basis?  In other words, if the plaintiffs fail, then the court simply could bifurcate away the damages issue.  Accordingly, the issue of whether damages can be assessed on a common basis seems to me to be a red herring.

Why do I wonder about these two questions?  I am worried that the majority may be interpreted to have held that (1) plaintiffs are now required to prove damages on a common basis to show "predominance" and, (2) plaintiffs cannot fall back on bifurcation if they cannot.  These two propositions seem like a logical extension of Wal-Mart, but is in some conflict with Amgen.  What do you guys think?  Am I overreading Comcast?

SJC

April 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Saturday, April 6, 2013

Lessons from Chevron: Symposium Videos

For those who were unable to attend the "Lessons from Chevron" symposium at Stanford Law School in February, the conference website now has links to videotapes of the panels. Some of the panels focused directly on the Chevron-Ecuador environmental litigation itself, while others used that litigation as a springboard to consider such issues as litigation financing, transnational legal ethics, forum non conveniens, judgment enforcement, international discovery, and international arbitration. The participants included a mix of players in the litigation, journalists who have followed the litigation, and scholars interested in various aspects of transnational litigation: Deborah Hensler, Graham Erion, Theodore Boutros, Judith Kimerling, Burt Neuborne, Martin Redish, Maya Steinitz, Nora Freeman Engstrom, Morris Ratner, Catherine Rogers, Patrick Keefe, Jenny Martinez, Howard Erichson, Manuel Gomez, Christopher Whytock, Janet Martinez, Michael Goldhaber, Richard Marcus, and S.I. Strong.

HME

April 6, 2013 in Conferences, Environmental Torts, Foreign | Permalink | Comments (0) | TrackBack (0)

Friday, April 5, 2013

The Chevron-Ecuador Litigation and Forum Non Conveniens

I have posted a new paper on SSRN entitled The Chevron-Ecuador Dispute, Forum Non Conveniens, and the Problem of Ex Ante Inadequacy. Here is the abstract:

This essay, written for the 2013 Stanford Journal of Complex Litigation symposium on lessons from the Chevron-Ecuador environmental litigation, urges that we not take the wrong lesson concerning the doctrine of forum non conveniens. The paper highlights the irony of the forum battles in the litigation. The plaintiffs sued in the United States, the defendants won dismissal on grounds of forum non conveniens (arguing that the dispute should be adjudicated by the courts of Ecuador), the plaintiffs obtained a massive judgment in Ecuador, and the defendants challenged the judgment on grounds of fraud and corruption in the Ecuadorian proceedings. Despite the temptation to see the Chevron-Ecuador litigation as a cautionary tale about forum non conveniens, this essay argues that the “adequate alternative forum” standard for forum non conveniens should remain exceedingly low. Ex ante, deference to foreign legal systems should prevail, even as we permit ex post challenges to recognition of judgments on grounds of fraud and corruption.

The essay was prepared for the Stanford Lessons from Chevron symposium, which took place in February. On this blog, the long-running environmental dispute has come up a number of times, including a recent reference to Michael Goldhaber's work and earlier reports here, here and here

HME

April 5, 2013 in Conferences, Environmental Torts, Foreign, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 2, 2013

Fallout from Behrend

BNA Law Week reports that the Supreme Court granted cert, vacated the judgments and remanded two class actions yesterday.  RBS Citizens NA v. Ross, U.S., No. 12-165, certiorari granted, judgment vacated, remanded 4/1/13; Whirlpool v. Glazer Corp., U.S., No. 12-322, certiorari granted, judgment vacated, remanded 4/1/13.

BNA describes Ross as a case in which a bank is accused of unlawfully denying overtime pay.  The allegations involved the enforcement of an unofficial policy and the Seventh Circuit affirmed the grant of class certification. 

The Whirlpool case comes out of the Sixth Circuit and a very similar issue class action was certified in the Seventh Circuit. This case involves allegations that Whirlpool sold faulty washing machines that got moldy.  I thought the Whirlpool case was a real poster child for the correct use of the issue class action, and I'm not sure on what grounds the Court thinks that Behrend is relevant.  It seems to me that it is not, Behrend was not an issue class action and the questions that concerned the majority there related to feasibility of damages determinations.  Given the allegations regarding overtime pay in Ross, I understand why that case might have made sense to remand, but Whirlpool is a very different kind of case.   There are no damages issues in Whirlpool because it is a liability issue class action. 

At a minimum, as after Wal-Mart, I predict we will see a spate of reconsideration motions, decertification motions and more litigation post-Behrend

ADL

ETA: And for commentary on Behrend, see Sergio's Campos' latest post on Scotusblog

 

April 2, 2013 in Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, April 1, 2013

The Problem of Settlement Class Actions

I have posted a new paper, The Problem of Settlement Class Actions, on SSRN. It makes the argument that we should abandon settlement-only class actions as a means of resolving mass disputes. The article focuses first on problems of leverage, including would-be class counsel's inability to take the class claims to trial and the monopsony or "reverse auction" problem. Because of the inherent asymmetry of settlement class action negotiations, would-be class counsel does not adequately represent the interests of the absent class members. The article incorporates these leverage concerns into an account of the illegitimacy of settlement-only class certification as a matter of judicial authority. The problems include not only due process concerns of inadequate representation, but also Rules Enabling Act concerns.

Settlement class actions have been an important form of dispute resolution in mass torts (as well as securities, antitrust, and other areas). Despite the Supreme Court's rejection of two asbestos settlement class actions in Amchem and Ortiz, and despite the problems encountered in the fen-phen nationwide settlement class action shortly thereafter, mass tort settlement class actions have never disappeared, and we need only look at the BP settlement class actions in the Gulf Oil Spill litigation for a well-known recent example.

Needless to say, the argument I am advancing faces an uphill battle. It cuts against entrenched interests of defendants, of plaintiffs' counsel, and of judges, all of whom prefer easier paths to comprehensive negotiated resolutions. The argument also cuts against the grain of most recent thinking on this topic. The ALI Principles of the Law of Aggregate Litigation, as well as a recent suggestion under consideration by the Advisory Committee on Civil Rules, would alter Rule 23 to facilitate settlement class actions even in cases that would be uncertifiable for purposes of litigation. Recent cases such as the Second Circuit's 2012 decision in In re AIG Securities Litigation and the Third Circuit's 2011 en banc decision in Sullivan v. DB Investments have taken new liberties with the Supreme Court's Amchem decision. The article explains what is problematic about the direction these cases have taken.

Here is the abstract:

This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. Rather, this article contends that if a dispute is to be resolved on a classwide basis, then the resolution should occur after a court has found the matter suitable for classwide adjudication regardless of settlement. 

HME

April 1, 2013 in Class Actions, Mass Tort Scholarship, Settlement | Permalink | Comments (1) | TrackBack (0)

GW Class Action Symposium

For those who were unable to attend the excellent conference on class actions that was held last month at George Washington Law School, video recordings of the panels can now be found on the conference website.

HME

April 1, 2013 in Class Actions, Conferences, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, March 29, 2013

Zachary Savage on Implementing Issue Preclusion in Mass Tort Litigation Through Bellwether Trials

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.

BGS

March 29, 2013 in Aggregate Litigation Procedures, Mass Tort Scholarship, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 27, 2013

Comcast v. Behrend

The Supreme Court released its decision in Comcast v. Behrend today.  The Court (with Justice Scalia writing for the majority) overturned the 3rd Circuit and held that the plaintiff does need to introduce evidence in support of its damages model in an antitrust case at the certification stage.  

There is a history of antitrust cases touching on procedural issues having significant impact outside the antitrust field (e.g. AT&T v. Twombly).  This is likely to be another one. 

Some useful links: ScotusblogArgument Recap by Sergio Campos.

ADL

 

March 27, 2013 in Class Actions | Permalink | Comments (0) | TrackBack (0)

Friday, March 22, 2013

Goldhaber on the Chevron-Ecuador Litigation

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.

HME 

March 22, 2013 in Conferences, Environmental Torts, Foreign, Mass Tort Scholarship, Procedure | Permalink | Comments (1) | TrackBack (0)

Thursday, March 21, 2013

Stanley Chesley Disbarred

Stanley M. Chesley, one of the leading mass tort lawyers of his generation, was disbarred today by the Kentucky Supreme Court (court's opinion here). Chesley played an important role in many of the biggest mass torts of the past forty years: the Beverly Hills Supper Club fire, tobacco, breast implants, fen-phen, Bendectin, Bhopal, Lockerbie, Catholic church sex abuse, MGM Grand Hotel, San Juan Dupont Plaza, and other mass torts, as well as numerous antitrust and securities class actions. He was disbarred for his involvement in an aggregate settlement of Kentucky fen-phen claims. The court found that the lawyers violated rules of professional conduct by taking fees in excess of what their fee agreement provided, by including an inappropriate cy pres remedy that advantaged the lawyers rather than the clients, and by failing to comply with the disclosure and informed consent requirements of the aggregate settlement rule.

The Kentucky diet drug settlement also led to the disbarment and imprisonment of Kentucky attorneys William Gallion and Shirley Cunningham, as well as criminal, civil, and ethics proceedings and penalties for several other lawyers. For earlier coverage of the Kentucky fen-phen settlement dispute, see herehereherehere, and here.

On today's disbarment of Chesley, see these news accounts in the Lexington Herald-Leader, the Cincinnati Enquirer, and the ABA Journal.

HME

March 21, 2013 in Ethics, Fen-Phen, Lawyers | Permalink | Comments (0) | TrackBack (0)