Wednesday, November 28, 2012

The New Class Action Landscape

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.

ADL

November 28, 2012 in Class Actions, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Lawyering for Groups symposium

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.

HME

November 28, 2012 in Conferences, Ethics, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

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 [email protected] 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 protected]). 

ECB

November 27, 2012 in Conferences | Permalink | Comments (0) | TrackBack (0)

Monday, November 12, 2012

Vanderbilt's New Voices in Civil Justice Workshop

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.

ECB

November 12, 2012 in Conferences, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Saturday, October 20, 2012

U.S. Chamber of Commerce 13th Annual Legal Reform Summit

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).

BGS

October 20, 2012 in Aggregate Litigation Procedures, Class Actions, Conferences, Environmental Torts, Foreign, Procedure | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2012

Mass Tort Litigation Blog Facebook Page

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.

BGS 

October 19, 2012 in Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Conference on Cost-Driven Litigation Paradigms -- When is a Case Too Big to Litigate?

ABA Litigation Section Conference on Current Issues on Pharmaceutical and Medical Device Litigation

The conference will take place on November 16, 2012 in Boston, Massachusetts.  Here's the brochure.

BGS

October 19, 2012 in Conferences, Medical Devices - Misc., Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Kiobel and the Alien Tort Statute

Interesting article in the Harvard Law Bulletin on the Supreme Court argument in Kiobel and the Alien Tort Statute generally.

BGS

October 19, 2012 in Foreign, Procedure | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 17, 2012

Class Action Sought For Alleged Victims Tortured by Chicago Police For Confessions

The ABA Journal has more on the case being brought by two legal clinics, including Northwestern's Roderick MacArthur Justice Center.

BGS

October 17, 2012 in Class Actions | Permalink | Comments (0) | TrackBack (0)

Hormone Replacement Therapy (HRT) Class Action Certified in Southern District of California

The PR news wire has more on the case being brought against Wyeth by plaintiffs' firms Beasley Allen, Gregory Holt & Associates, P.A., and Rushall McGeever.

BGS

October 17, 2012 in Class Actions, Pharmaceuticals - Misc. | Permalink | Comments (0) | TrackBack (0)

Stacey Lee on Federal Preemption of Generic-Drug Failure-to-Warn Claims

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.

BGS 

October 17, 2012 in Mass Tort Scholarship, Pharmaceuticals - Misc., Products Liability | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2012

NY Times Article on Chinese Drywall

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.

ECB

October 15, 2012 in Current Affairs, Environmental Torts, Products Liability | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2012

Legal Crisis Management

Two years ago, I blogged about the need for greater scholarly attention to mass tort crisis management.  Since then, crisis-management practice groups at law firms have continued to burgeon.  Here's a sampling of crisis-management groups at large law firms: Baker Hostetler, Bingham, Cooley, Covington & Burling, Freshfields, Gibson Dunn, McCarter & English, McDermott Will & Emery, Patton Boggs, Pillsbury Winthrop, Skadden, and Steptoe & Johnson.

For media coverage of recent growth in crisis-management groups, see the following: 

(1) Ashby Jones, On Covington and the 'Crisis Management' BoomletWall Street Journal Law Blog (Jan. 6, 2011, 1:37 p.m.);

(2) Leigh Kamping-Carder, Savvy Firms Seek Business Through Crisis Management, Law360 (Feb. 19, 2010, 7:12 p.m.) (online registration required for article); and

(3) David Lat, A Look at Orrick's Crisis Management Practice, Above the Law (Oct. 8, 2009, 11:06 a.m.). 

While business schools have offered courses on crisis management and leadership, public-policy schools have offered courses on governmental crisis management, and communications schools have offered courses on crisis communications, law schools appear not to have provided curricular attention to legal crisis management. (The University of Texas School of Law has a course on crisis management, but it appears to track public-policy courses focusing on the government's role in a crisis.)  What might a law-school course on legal crisis management look like, focusing on the role of lawyers in preventing, managing, and resolving crises?  Here's a draft description I put together for such a course that I've been considering more fully developing:

Legal Crisis Management and the Media
Although crisis management has long been an important skill for lawyers, formal crisis management practices today proliferate among global law firms seeking to aid clients facing complex crises that span various countries, practice areas, and advocacy settings such as judicial, legislative, regulatory, or media inquiries.  This course will examine and integrate insights on legal crisis management from multiple disciplines, including not only law, but also management, leadership, communications, and public relations.  Within law, the course will draw upon ethics, counseling, negotiation, and alternative dispute resolution, and address lawyers' and clients' interaction with the media during a crisis, including global perspectives on the legal limits of media coverage.  In addition to developing conceptual approaches, the course will discuss case studies of legal crisis management implicating the law, culture, and media of multiple countries and areas, and consider lawyers' actual and potential contributions to successful resolution of the crises.   
BGS

October 14, 2012 in Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship | Permalink | Comments (0) | TrackBack (0)

Saturday, October 13, 2012

The Economist on Global Fake and Substandard Pharmaceuticals

The Economist discusses the growing global problem of fake and substandard pharmaceuticals in Fake pharmaceuticals: Bad medicine -- The world's drug supply is global.  Governments have failed to keep up.  Absent from The Economist's discussion of government regulators and industry self-policing is the role of private litigation.  Couldn't emerging global tort litigation also deter wrongdoers and be part of the solution?

BGS

October 13, 2012 in Foreign, Pharmaceuticals - Misc., Products Liability | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2012

Three Class-Action Cases to be Argued Before SCOTUS

Daniel Fisher at Forbes has an interesting article previewing three class-action cases being argued before the Supreme Court of the United States this fall: Class-Action Lawyers Face Triple Threat At Supreme Court.

BGS

October 12, 2012 in Aggregate Litigation Procedures, Class Actions, Procedure | Permalink | Comments (0) | TrackBack (0)

Possible BP Settlement with Federal Government Over Deepwater Horizon Gulf Oil Spill

Two Wall Street Journal articles in recent days have tracked recent settlements talks between BP and the federal government regarding civil and criminal liability in connection with the Deepwater Horizon oil spill in the Gulf.  On Wednesday, the Journal reported, BP Close to Spill Settlement: Multibillion-Dollar Deal With U.S. Would Combine Civil, Criminal Liabilities.  But on Thursday, the Journal noted in Slick Complicates BP Liability Talks that a new thin oil slick determined to be related to the prior Deepwater Horizon spill has appeared. 

BGS

October 12, 2012 in Environmental Torts, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Compounding Pharmacy, Pharmaceutical Manufacturers, and the Fungal Meningitis Outbreak

A Wall Street Journal article, Pharmacy in Outbreak Acted Like Drug Maker, by Mark Maremont, Jonathan D. Rockoff, and Timony W. Martin explores the history of the companies allegedly involved in the fungal meningitis outbreak.  The article notes that a class action has already been filed in federal court in St. Paul, Minnesota.

BGS

October 12, 2012 in Pharmaceuticals - Misc., Products Liability, Regulation | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 10, 2012

7th Annual ABA Chemical Products and Toxic Torts Regional Seminar

The seminar will take place in downtown New York at St. John's University School of Risk Management, on October 29, 2012.  Here's the brochure.

BGS

October 10, 2012 in Asbestos, Conferences | Permalink | Comments (1) | TrackBack (0)

Michael Downey on Ethical Issues Related to Incentive Payments for Class Representatives

As part of the ABA Sound Advice series, Michael Downey (Armstrong, Teasdale) addresses ethical issues related to incentive payments for class representatives.

BGS

October 10, 2012 in Class Actions, Ethics, Lawyers | Permalink | Comments (0) | TrackBack (0)