Wednesday, February 27, 2013
The Supreme Court just issued its ruling in Amgen v. Connecticut Retirement Plans & Trust Funds. You can find the slip opinion here.
The Court held that a finding of materiality is not necessary at the class certification stage for a Securities Class Action. Ultimately, of course, plaintiff will have to prove that the representation was material, but the Court said that proof can wait until after class certification. This holding is consistent with the Court's holding in Erica P. John Fund v. Halliburton last year. In that case, the Court unanimously held that plaintiff need not prove loss causation. You can find the opinion in that case here.
The Court held in Amgen that since materiality is an issue that is common to the whole class (to think of it in Wal-Mart v. Dukes's language, if plaintiff cannot carry her burden a finding that the representation was not material will decide all the claims "in one stroke").
The majority was written by Justice Ginsburg. Justice Thomas, Scalia and Kennedy dissented and Justice Alito filed a concurring opinion.
Wednesday, January 30, 2013
CNN.com has a photo essay by Hiroko Tanaka showing deformed Vietnamese children whose conditions may stem from Agent Orange herbicide sprayed by the United States during the Vietnamese War. The story accompanying the photos discusses the difficulties in tracing causation. For more on the diseases potentially caused by Agent Orange, see the U.S. Department of Veteran Affairs' webpage on Veterans' Diseases Associated with Agent Orange.
Should scholars be thinking about inter-generational mass torts as a distinct subfield, perhaps not only including Agent Orange, but also DES? Will increasingly global mass tort litigation enable new claims based on the spraying of Agent Orange decades ago?
Monday, January 21, 2013
Corporate Counsel has a short piece, Crafting a Defense in Food-Labeling Class Actions, by O'Melveny's Kelsey Larson and Carlos Lazatin.
Skadden has issued a useful analysis of upcoming cases to watch and potential developments for 2013 in class actions and product liability. The analysis includes contributes by Skadden's John Beisner, J. Russell Jackson, and Jessica Miller.
The Stanford Journal of Complex Litigation is hosting a symposium on the Chevron Litigation on February 8, 2013. Our own Howard Erichson will be speaking on the ethics of transnational litigation.
Here is a description:
The ongoing litigation between Chevron and the people of Lago Agrio, Ecuador regarding alleged environmental harms dating from Texaco’s oil exploration and extraction in Ecuador now spans three continents and nearly twenty years; and concerns the largest judgment ever awarded in an environmental lawsuit, eighteen billion dollars. The litigation has been called both “a shakedown,” and “a landmark victory,” yet it continues to be litigated around the world and divide both the bar and the academy. What are the consequences of this case? With complex litigation becoming increasingly transnational, what general lessons can be drawn from this case? These questions are at the heart of SJCL’s inaugural symposium.
Tuesday, December 18, 2012
Rich Freer (Emory) has posted a draft of his latest piece, The Supreme Court and the Class Action: Where We are and Where We Might be Going, on SSRN. Here's the abstract:
In 2010 and 2011, the Supreme Court decided five class action cases. In 2012, it has agreed to hear four more. This piece summarizes what the Court has done and where it appears to be going concerning aggregate litigation. The goal of this piece is more practical than theoretical: to place all nine cases in context and draw preliminary conclusions about the impact these cases have had and will have -- not only on class action practice, but in other areas, including the Erie Doctrine, waivers of class arbitration, anti-suit injunctions, the binding effect of judgments on class members, enforcement of Rule 10b-5, and the apparent efforts of defendants to front-load litigation by demanding greater consideration of merits-based facts (and qualification of experts) at the class certification stage.
The cases dealing with waivers of class arbitration implicate the role of the civil suit in law enforcement. If small (usually consumer) claims cannot be pursued on an aggregate basis, they may never be vindicated; individuals and lawyers will not find it economically feasible to do so. Yet the Court appears unwilling to recognize a public-policy exception to the primacy of contract. Thus, if the underlying contract waives aggregate litigation or arbitration, apparently this will not be trumped by the concern that the relevant law (often consumer protection laws) will not be enforced through civil litigation.
Friday, November 30, 2012
On November 26 the Supreme Court denied cert in RJ Reynold Tobacco Co. v. Clay, an appeal from a Florida state court decision to give the Engle court ruling preclusion effect.
Engle, recall, is the tobacco issue class action certified and upheld by the Florida Supreme Court. Does the denial of cert pave the way for issues class actions to flourish (at least for the moment) or is this just not the right vehicle?
See Scotusblog for a summary and links. ADL
Wednesday, November 28, 2012
Prof. John C. Coffee and I have posted "The New Class Action Landscape: Trends and Developments in Certification and Related Topics" on SSRN.
This is a memorandum that provides an overview of the trends and highlights in class certification rulings from 2012. Its going to be another interesting year for class actions at the Supreme Court and we provide a summary and evaluation of the upcoming cases, in addition to highlighting appellate and district court cases of interest.
On Friday, Nov. 30, Fordham Law School will host a symposium entitled Lawyering for Groups: Civil Rights, Mass Torts, and Everything in Between. Organized by Benjamin Zipursky and myself, the conference participants include Elise Boddie, Elizabeth Burch, Kristen Carpenter, Brian Fitzpatrick, Bruce Green, Samuel Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, Russell Pearce, Theodore Rave and Eli Wald. It is co-sponsored by the Stein Center for Law and Ethics and by the Fordham Law Review, which will publish the papers.
As I read the authors' drafts in preparation for the symposium, I am struck by how difficult the fundamental questions remain. What does it mean, really, for a lawyer to represent a group of similarly situated claimants? Is it a bundle of individual lawyer-client relationships, or is it better understood in practice as a relationship between a lawyer and a group, with the primary duty owed to the group as a whole? Does class certification fundamentally change the nature of the representation, or in some cases is the class action better understood as an acknowledgement of the reality of mass representation and the imposition of a set of procedural protections?
I am struck, as well, by how these questions transcend any particular area of practice. The symposium grew out of Ben Zipursky's and my shared interest in the ethics of group lawyering. He and I have lectured to mass tort lawyers on ethics in mass tort litigation, as well as to civil rights lawyers on the ethics of civil rights litigation. Each area brings its own challenges, but the core questions about collective representation apply to both. Convinced that these issues deserve attention, we pulled together a group of proceduralists and ethicists with widely varying views on aggregate litigation and different areas of expertise. I'm looking forward to learning a lot. The agenda is here.
Tuesday, November 27, 2012
Call for Papers: "The Public Life of the Private Law: The Logic and Experience of Mass Litigation" A Conference in Honor of Richard A. Nagareda
Here's the announcement from Vanderbilt Law School:
Vanderbilt Law School announces a conference in honor of the late Richard Nagareda, the David Daniels Allen Distinguished Chair in Law and founding Director of the Cecil D. Branstetter Litigation and Dispute Resolution Program. “The Public Life of Private Law: The Logic and Experience of Mass Litigation” Conference will be held on September 27 and 28, 2013, at Vanderbilt and is jointly sponsored by the Branstetter Program, the Journal of Tort Law, and the University of Texas Center on Lawyers, Civil Justice, and the Media. Conference organizers are Tracey George (Vanderbilt), John Goldberg (Harvard), Sam Issacharoff (NYU), and Charlie Silver (Texas). We invite junior scholars to submit paper proposals for the conference by February 15.
In the spirit of Oliver Wendell Holmes, Richard Nagareda devoted himself to studying the life of the law‐‐the law as it actually plays out in lawyer‐client relationships, the maneuvering of adversary litigation, the efforts by judges to manage an unruly litigation process, and the construction of elaborate settlement agreements that now dominate the modern landscape of civil litigation. Yet despite his relentless focus on the “realities” of civil litigation, Richard never fell prey to skepticism about law. Indeed, he insisted that lawyerly efforts to fashion new claims and new forms of dispute resolution are and should be shaped by substantive law, the rules of professional responsibility, and ultimately principles of administrative law. The hallmark of his work is its commitment to taking seriously both the logic and the experience of mass tort law and complex litigation.
This conference pays homage to Richard’s scholarship by inviting a new generation of scholars to address topics and concerns related to his work. Each panel will be organized around a junior scholar’s paper with senior scholars commenting on papers. Senior scholars will include Lynn Baker, Bob Bone, Beth Burch, Brian Fitzpatrick, Tracey George, Myriam Gilles, John Goldberg, Sam Issacharoff, Bill Rubenstein, Suzanna Sherry, Charlie Silver, and Patrick Woolley. All papers and comments will be published in the Journal of Tort Law.
If you are a junior scholar interested in participating, please submit a five‐page paper proposal to Branstetter.Program@vanderbilt.edu no later than February 15. If your proposal is accepted, we will inform you by March 15. All travel expenses will be covered for invited junior scholars. If you have any questions, please email Branstetter Director Tracey George (email@example.com).ECB
Monday, November 12, 2012
Vanderbilt is conducting its annual New Voices in Civil Justice Workshop on May 6-7 and has issued a call for papers. Papers should be submitted by January 1, 2013. Both Alexi and I participated last year and I can attest that it's a great program and a wonderful way for junior scholars to receive feedback from senior folks in the field in a relaxed environment. (Plus, Nashville is lovely in the spring if you need an additional reason to submit a paper!) Here's the information from Vanderbilt and a link to the program website:
Vanderbilt Law School’s Cecil D. Branstetter Litigation & Dispute Resolution Program holds an annual New Voices in Civil Justice Workshop in the spring. Junior scholars’ works are selected based on an anonymous review of an outstanding group of papers submitted for consideration. A senior scholar briefly introduces and comments on each paper before opening the session up to discussion about the work. The senior scholars typically include Branstetter faculty and several distinguished visitors.
The Branstetter Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution. The New Voices workshop brings together junior scholar authors, invited senior scholars, and Vanderbilt faculty in the areas of civil justice.
This year, four junior scholars will be selected via a blind review process to present at the New Voices Workshop. The 2013 New Voices in Civil Justice Scholarship Workshop will be held at Vanderbilt Law School on May 6-7, and the Branstetter Program invites submissions for the workshop.
The New Voices format maximizes collegial interaction and feedback. Paper authors thus do not deliver prepared “presentations” as such. 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.
Saturday, October 20, 2012
The conference will take place on October 24, 2012 in Washington, D.C., and includes panels on third-party litigation financing and global litigation (including the Chevron Ecuadoran litigation and the adoption of class actions in other countries).
Friday, October 19, 2012
Did you know our Mass Tort Litigation Blog also has a Mass Tort Litigation Facebook page that is regularly updated with links to posts from this blog? If you prefer to receive Mass Tort Litigation Blog posts in your Facebook feed, feel free to "like" our Facebook page, and you'll get access to our blog posts soon after they appear here.
HB Litigation Conferences has put together a Judicial & Lawyers’ Forum on Cost-Driven Litigation Strategies — The New Paradigm: When is a Case Too Big to Litigate?, on November 9, 2012, at the University of Chicago. Here's the brochure.
Wednesday, October 17, 2012
Professor Stacey Lee (Johns Hopkins, Carey School of Business) has posted to SSRN her article, Pliva v. Mensing: Generic Consumers' Unfortunate Hand, Yale J. Health Pol'y L. & Ethics (forthcoming 2012). Here's the abstract:
The United States Supreme Court held in PLIVA v. Mensing that federal preemption immunizes generic drug manufacturers from liability for state law failure-to-warn claims. As a result, consumers harmed by a mislabeled generic drug will be unable to bring actions against generic manufacturers under state law. The Court confessed that the resulting federal drug-labeling scheme dealt consumers an “unfortunate hand.” By removing generic manufacturers’ duty to improve the adequacy of their products’ warning labels, the Supreme Court calls into question the safety of generic drugs.
Monday, October 15, 2012
On October 12, 2012, the New York Times reported on several decisions holding that Taishan Gypsum, the Chinese manufacturer of questionable drywall, was subject to personal jurisdiction in the United States. Specifically, Judge Fallon in the federal MDL (located in Louisiana) and Judge Farina in the Miami Dade Circuit Court both ruled that Taishan Gypsum targeted the Florida market by "courting Florida companies, mailing drywall samples to Florida, [and] selling large amounts of drywall to Florida-based companies."
Even Congress has gotten involved and some members have introduced the Contaminated Drywall Safety Act that would insist the Chinese government force manufacturers to acquiesce to American jurisdiction. So far, however, the bill has been passed only in the House.
The NY Times article is available here.