Saturday, November 20, 2010

Other-Regarding Preferences in the 9/11 Workers Settlement

Reading yesterday’s New York Times article on the 9/11 Workers Settlement, I couldn’t help but think of the other-regarding preferences and psychological influences that played a role in garnering the requisite 95.1% agreement.  The two claimants quoted in the article, Jennifer McNamara (whose firefighter husband died of colon cancer last year) and Kenny Specht, a retired firefighter with thyroid cancer, both framed their ultimate decision to participate in the settlement in terms of helping others within the community of plaintiffs.  As described by the N.Y. Times, McNamara “explained to friends in a letter that she did not want to delay the settlement for the many plaintiffs who needed it to pay mortgages and medical bills.”  Specht said, “I am not sure that holding out for a better offer will ever be something that is attainable.”  

I’ve written about this internal group pressure in the past and how claimants might be able to use it to their benefit as opposed to lawyers using it for theirs.  It does appear that Napoli Bern Ripka LLP held at least one town hall meeting (video footage available below), but I’m not sure whether claimants were encouraged or given opportunities to discuss the deal with one another or whether the lawyers did most of the talking.  Given the claimants geographical proximity to one another in the 9/11 Workers Settlement as well as the closeness of the firefighting and police officers’ communities, it appears that altruism, reciprocity, and a concern for others' well-being within their community played a significant role in members’ decision to approve the settlement (though the settlement did not receive the 100% approval rate that would have paid out $712 million).  Others simply appeared to be exhausted by the protracted litigation and wanted finality.  Still others, at least 520 of them, opted out (or did not respond by the deadline).  A New York Times article last August described several plaintiffs' difficult decision-making process.

 

Although the House of Representatives has approved a bill that would reopen the 9/11 Victim’s Compensation Fund, the Senate has yet to approve it and those who have signed on to the 9/11 Workers Settlement will be ineligible for compensation.  

Here's a link to Napoli Bern's press release (with the percentage of claimants signing-on in each tier).

ECB

 

 

November 20, 2010 in 9/11, Current Affairs, Informal Aggregation, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Friday, November 19, 2010

9/11 Settlement Report

The allocation neutral in the World Trade Center litigation reported today that 10,043 claimants have agreed to participate in the settlement.  This number, which constitutes 95.1% of the 10,563 eligible claimants, apparently meets (just barely) the 95 percent threshold required under the terms of the settlement agreement.  But the settlement agreement also required at least 90% participation and 95% participation by particular categories of claimants.  The report filed today states that 87.4% eligible "Tier 1" claimants (2383 out of 2726) signed on.  Does this mean that the settlement fails?  Media reports suggest that the settlement is going forward, but I will be interested to find out whether all of the participation requirements were met.

In general, it comes as no surprise when a mass tort settlement meets a participation threshold, given that clients overwhelmingly follow their lawyers' advice to participate in a settlement.  But the WTC litigation -- and particularly Judge Hellerstein's rejection of an earlier settlement proposal amid questions about whether a judge in a non-class action has any business "approving" or "disapproving" a settlement -- generated enough notoriety that reasonable observers might have wondered how claimants would react.

HME

UPDATE/CLARIFICATION:  The settlement agreement requires 90% participation by each category of claimants with "qualifying injuries" but does not require a specified percentage of participation by claimants with no qualifying injury.  Tier 1 consists of claimants with no qualifying injury.  Therefore, the participation levels do meet the requirement under the terms of the agreement.

 

November 19, 2010 in 9/11, Settlement | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

WTC Disaster Site Litigation Settlement - Results Announced Tomorrow

The results of how many plaintiffs signed on to the WTC Disaster Site Litigation Settlement, which required that 95% of the plaintiffs sign on for the settlement to go forward, will be announced at 1 PM tomorrow.   Click here to see docket & documents online.

Interestingly, the allocation neutral overseeing this aspect of the settlement adminsitration is from Ohio - Matthew Garretson.  His profile can be found here.  Here is the description of the firm's work on allocating settlement proceedings to claimants:

Perhaps the hallmark of our settlement allocation service, GFRG helps ensure that similarly-situated claimants are treated the same under the methodology developed to allocate the settlement proceeds and to help ensure that every claimant is allocated a fair and equitable share of the settlement proceeds (taking into account the terms/conditions of the Settlement Agreement, the severity of the injury and the proof available).

The question of course is whether the terms of the settlement agreement - i.e. the matrix developed by the lawyers - fairly allocates funds and what data is used to make those determinations.

ADL

h/t Fred Mogul, WNYC.

November 18, 2010 in 9/11, Aggregate Litigation Procedures, Environmental Torts, Lawyers, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, September 20, 2010

BP Still Faces Investigations, Lawsuits, and Fines

An article in the Wall Street Journal discusses the remaining BP's remaining challenges stemming from the Gulf Oil Spill -- governmental investigations, civil lawsuits, and fines.  The amount of fines imposed may turn on whether BP is found "grossly negligent."  With regard to lawsuits, much will depend on the extent to which Ken Feinberg can persuade potential plaintiffs to forego their legal claims in exchange for quicker compensation via the $20 billion BP claims fund.

BGS

September 20, 2010 in Aggregate Litigation Procedures, Environmental Torts, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Sunday, September 19, 2010

Toyota Settles Unintended Acceleration Lawsuit

According to an article in the Wall Street Journal, Toyota has settled, for an undisclosed amount, an unintended-acceleration lawsuit involving the deaths of four persons.  The accelerator appeared to have been caught in the floormat.  The article notes that Toyota faces about 200 unintended-acceleration lawsuits.

BGS

September 19, 2010 in Products Liability, Settlement, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)

Friday, September 10, 2010

Simons on Statistical Knowledge

Kenneth Simons (BU Law) has posted an article entitled "Statistical Knowledge Deconstructed."  This piece looks like it will have important implications for mass torts.   The piece seems to focus on the criminal context (what level of knowledge is required for culpability) but in mass torts we struggle with the problem of the creation of increased risk of injury but the difficulty of proving individual injury when the level of culpability Simons discusses (intent) is not at issue.  Here is the abstract:

In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.

This article presents the first systematic analysis of this pervasive but underappreciated problem, and it offers a qualified defense of the distinction. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and often is not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts might cause the actor to acquire statistical knowledge, but such an increase in scale ordinarily does not increase the level of culpability properly attributable to the actor. I articulate two invariant culpability principles, “Invariant culpability when acts are aggregated” and “Invariant culpability when risk-exposures are aggregated,” that formalize this idea.

Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable, and treats his acts as especially difficult to justify, when he knowingly imposes a highly concentrated risk of serious harm on a victim. (Under SSP, speeding to the hospital to save five passengers, knowing that this will likely require killing a pedestrian in one’s path, is much harder to justify than speeding to the hospital to save one passenger, knowing that this creates a 20% chance of killing a pedestrian in one’s path.)

The analysis has a number of implications and is also subject to important qualifications: Notwithstanding the invariant culpability principles, if a faulty actor repeats his unjustifiable acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists; in rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor’s culpability is comparable to that of an actor with individualized knowledge; the higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to “identifiable victims,” except insofar as that duty is a crude version of SSP; the decision by an actor to proceed with an activity after conducting a cost-benefit analysis is not, by itself, evidence of culpability, even if that analysis provides the actor with statistical knowledge that the activity will cause serious harm; a legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.

ADL (h/t Torts Prof Blog)

September 10, 2010 in Aggregate Litigation Procedures, Mass Tort Scholarship, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, August 23, 2010

Comparing the 9/11 Fund and the Oil Spill Fund

Michael Cooper has an article in the NYTimes about the two entitled "Spill Fund May Prove as Challenging as 9/11 Payments."

Richard Nagareda (Vanderbilt) is quoted as saying: "Although he had a very difficult time placing a dollar value on human life, in some way that was a more straightforward job than estimating the long-term harm to a shrimper’s business." 

In both cases, I think, you have a situation where Feinberg is asked to monetize things that are very hard to monetize and about which people have strong and conflicting opinions - but that is what our tort system asks juries to do all the time.  I've recently written on this issue in a piece called "Rough Justice" - an earlier draft is available on SSRN and I plan to post a revision soon.

The NYT article also raises the prospect of fraudulent claims.  The 9/11 Fund was manageable in this regard because, as the paper quotes Feinberg “You’ve got verification of death."

ADL

August 23, 2010 in 9/11, Aggregate Litigation Procedures, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, August 9, 2010

NYTimes Article on Plaintiff Disappointment with 9/11 Settlement

The NY Times' Mireya Navarro has a long article today entitled "9/11 Settlements Bring Moment of Reckoning" about the disappointment of many plaintiffs in the WTC Disaster Site Litigation with the settlements they are being offered.  The settlements take account both of the severity of the injury and the possibility that causation can be proven in court, leaving many with cancer or who have died of cancer getting less than they expected or hoped for. 

A very important twist to the 95% agreement requirement in the settlement is the effect that is having on some plaintiff's decision to settle or not to settle.  One is quoted as saying: "“It weighs heavy on one’s mind that your decision would impact the compensation of those who are sick, because if you don’t get 95 percent you’re not going to settle.”

Another interesting theme that comes out of the article is the expressive uses of the lawsuit for plaintiffs.  One plaintiff who is taking a settlement of approximately $11,000, the article explained "To him, the legal battle was never about the money but about calling attention to the health consequences suffered by those “who stepped up to the plate” after the terrorist attacks."

ADL


August 9, 2010 in 9/11, Aggregate Litigation Procedures, Settlement | Permalink | Comments (0) | TrackBack (0)

Sunday, July 18, 2010

Ken Feinberg Compensation for Administering BP Fund -- A Problem and Possible Solution

Today, I saw on Bloomberg Rewind a video of several questions to Kenneth Feinberg, administrator of the $20 billion BP oil-leak compensation fund.  (Video of the interview apparently not yet available on the internet.)  At one point, the reporter asked Feinberg how he would be paid, and Feinberg responded that BP would pay because neither the victims nor taxpayers should have to pay him.  Fair enough.  But when the reporter asked Feinberg whether his compensation would be disclosed, Feinberg said that his compensation "would be confidential."  

The issue of Feinberg's compensation is interesting.  Feinberg worked pro bono on the 9/11 victim compensation fund -- a remarkable and laudable commitment given the substantial time involved.  I'm not suggesting that Feinberg should go on doing such monumental administrative tasks pro bono -- but is it appropriate for him to keep his compensation from BP confidential?  

As with the 9/11 fund, Feinberg will likely have tremendous discretion in fashioning the administrative claim mechanism for the BP compensation fund.  His exercise of discretion could possibly result in BP saving substantial funds, especially if any remainder of the $20 billion fund is to be returned to BP. Accordingly, a fair process at a minimum requires that both the amount of his compensation, and the method of compensation be disclosed publicly.  If BP has the ability to review and cut his billable hours or his billable-hour rate, for example, Feinberg might have a conflict of interest that could lead him unconsciously to favor BP in structuring the administrative fund or making awards.  As a result, in addition to public disclosure, an even better solution might be for BP and Feinberg also to agree to have a federal judge review Feinberg's billable hours, billable-hour rate, and total fee, much as is already typically done by judges reviewing class counsel fee awards in class-action settlements under Rule 23.  See Fed. R. Civ. P. 23(h) ("In a certified class action, the court may award reasonable attorney's fees and nontaxable costs that are authorized by law or by the parties' agreement."). 

I of course do not mean in any way to call into question Feinberg's integrity; he is widely viewed as the nation's leading claims administrator.  But even federal judges have their compensation set publicly and in a manner that could not be said to incentivize them to favor one litigant over another.  We would never approve of a judge being paid confidentially by only one litigant -- and we shouldn't here either, especially when the claims structure could be seen as quasi-public in light of the President's central involvement and comments that "[i]n order to ensure that all legitimate claims are paid out in a fair and timely manner, the account must and will be administered by an independent, third party."  Ultimately, removing the issue of Feinberg's fees from any controversy would aid Feinberg in making the BP fund a success. 

BGS    

UPDATE -- Professor Andrew Perlman (Suffolk) comments at Legal Ethics Forum on my post above.

UPDATE #2 -- Forbes' On The Docket blog discusses my post above: Feinberg's BP Pay: Should It Be Disclosed?, by Daniel Fisher.

July 18, 2010 in Aggregate Litigation Procedures, Class Actions, Environmental Torts, Ethics, Informal Aggregation, Lawyers, Procedure, Settlement | Permalink | Comments (7) | TrackBack (0)

Monday, June 14, 2010

E-Ferol Class Action Settlement Approved

Today's National Law Journal reports that Judge Sidney Fitzwater of the Northern District of Texas has approved a class-action settlement in the E-Ferol litigation.  E-Ferol was a non-FDA approved vitamin E supplement given to premature babies during the 1980s that is alleged to have caused the deaths of approximately 40 babies.  The class action, brought against defendant manufacturer Carter-Glogau Laboratories and distributor O'Neal, Jones & Feldman, Inc., includes 369 plaintiffs who claimed that E-Ferol caused liver and kidney failure as well as brain bleeds in the affected children.  The settlement amount is $110 million.

ECB

June 14, 2010 in Class Actions, Settlement | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 2, 2010

Lawyers Reduce Fees in WTC Disaster Site Litigation

The civil procedure blog reports on it here.  The AP report can be found here.  


The lawyers have offered to cap their fees at 20% instead of 30%.  But this does not solve all the issues identified by Judge Hellerstein, particularly the "pig in a poke" problem - claimants can't figure out what they will get before signing on. 

This offer to reduce fees reminds me of the governmental attempt to reduce the bonuses AIG had contracted to give certain employees after its implosion.  Not that the situation is the same, but it shares a theme.  The theme: even when you have a signed contract there is the possibility to renegotiate (perhaps something more than a mere possibility in the case where a federal judge says your fees are too high) . 

ADL

June 2, 2010 in 9/11, Aggregate Litigation Procedures, Settlement | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 4, 2010

Link to WTC Settlement

For readers interested, the WTC settlement and various documents can be conveniently found on the Napoli Bern Ripka LLC website here:

http://www.nbrlawfirm.com/blog/read_blog/213/wtc-respiratory-illness-law

I think its a great public service that the firm is being transparent about the agreement and these motions by posting them online.

ADL

May 4, 2010 in 9/11, Aggregate Litigation Procedures, Mass Disasters, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, May 3, 2010

Profile of WTC Litigation Judge in the NYTimes

Mireya Navarro of the New York Times wrote an article published on Sunday about Judge Alvin Hellerstein who is overseeing the 9/11 World Trade Center Disaster Site litigation, and who now famously came out against the proposed settlement in that case.  The article is called "Empathetic Judge in 9/11 Suits Seen By Some As Interfering." 

The theme of the article is Judge Hellerstein's empathy for these special victims.  Some legal experts, Navarro  writes, say that he was acting outside of his judicial capacity -- "such intervention is not the norm outside the class action."

While Judge Hellerstein's actions in this case are very public and the subject of a great deal of interest, its not clear to me that there is a difference between what he did and what judges usually do.  As I see it, the litigants here (or the lawyers more precisely) are trying to put together the kind of settlement that Merck and the plaintiffs lawyers were able to put together in Vioxx.  In that case, the litigants sought Judge Fallon's approval for the settlement, which was controversial.  Judge Fallon's approval - especially because he is a thoughtful, intelligent and well-respected federal judge - was critical to the success of that settlement.  I asked him once why, if it wasn't a class action, his approval was needed.  He replied in sum and substance that the parties wouldn't proceed without his approval.

The WTC lawyers wanted Judge Hellerstein's approval for the same reasons the Vioxx lawyers did - he is a thoughtful, intelligent and well respected federal judge.  His approval of the settlement would give it gravitas; it would make plaintiffs whose lawyers weren't involved in drafting it want to sign on; it would make plaintiffs who had no way of knowing what they would get at the end of the day agree to buy a pig in a poke because they could trust the process.  The lawyers didn't get the Judge's sign-on.  It seems that with their appeal to the Second Circuit they are saying he acted beyond the scope of judicial power now that they got a response from the judge that they didn't like.   

But how is this different than a settlement conference in an ordinary case when the judge opines that a settlement is not giving the plaintiff enough?  After all, the parties came to Judge Hellerstein.  They could settle the cases individually and dismiss them one after the other as settlement is reached.  If they chose to dismiss their individual cases, its not clear to me that there is anything Judge Hellerstein could do other than to tell the client he thought that was a bad idea.  But if the lawyers want an aggregate settlement and they want a Judge to give them legitimacy, then they have to face the reality that he will only legitimate a settlement he thinks is appropriate under the circumstances. 

EDITED TO ADD:  You can find the documents regarding the appeal on the Napoli Bern website.

ADL

May 3, 2010 in 9/11, Aggregate Litigation Procedures, Informal Aggregation, Mass Disasters, Settlement, Vioxx | Permalink | Comments (0) | TrackBack (0)

Monday, April 19, 2010

ACI Conference on Chemical Products Liability and Environmental Litigation

American Conference Institute will be hosting a conference on Chemical Products Liability and Environmental Litigation on April 28-29, 2010 in Chicago, IL.  I will be speaking on mass torts and ethics, with particular attention to the ethics of mass settlements.  Here's the brochure (Download ACI Brochure).  

BGS

April 19, 2010 in Aggregate Litigation Procedures, Conferences, Environmental Torts, Informal Aggregation, Mass Tort Scholarship, Pharmaceuticals - Misc., Products Liability, Settlement | Permalink | Comments (0) | TrackBack (0)

Monday, March 29, 2010

Panel on Pluralism in Tort Law and Litigation at Annual Conference of the Association for the Study of Law, Culture and the Humanities

As previously mentioned, I was part of a panel on Pluralism in Tort Law and Litigation at the annual conference of the Association for the Study of Law, Culture and the Humanities, which took place on Saturday, March 20 at Brown University.  Professor Alan Calnan (Southwestern) moderated the panel, and other participants included Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston).  Below are the abstracts and links to audio from the presentations and Q&A.  Thanks to Alan Calnan for moderating and to all for participating.

***

I.  Prof. Alan Calnan -- Introduction (audio)

II.  Prof. Christopher Robinette -- "The Instrumentalism in Tort Reforms" (audio)

The traditional view among legal historians is that tort was largely deontic private law until the late nineteenth century.  Due to factors such as the Industrial Revolution and the advent of liability insurance, tort became (more) instrumentalist.  A survey of major tort reforms over the course of the last century provides evidence to support this view.  Each of the reforms--workers' compensation, no-fault automobile insurance, products liability, and "modern" tort reforms (such as damage caps)--is based in instrumentalism.  Furthermore, the reforms become increasingly integrated into tort law as time passed.  The earliest reform, workers' compensation, was a substitute for tort law.  By the time of the modern reforms, instrumentalism is operating within tort itself, and covers a multitude of tort cases.

III.  Prof. Byron Stier -- ""Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand" (audio)

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

IV.  Prof. Sheila Scheuerman (audio)

In my presentation, I examine whether and when tort law should permit
"no injury" claims -- claims where the plaintiff's harm has not yet
materialized.  Examples of these suits include medical monitoring
actions, products liability claims where a known defect exists, but the
product has not yet malfunctioned, as well as consumer fraud claims
where the consumer's decision was not affected by the defendant's
alleged misrepresentation.  Recent years have seen an influx of these
suits under an array of tort and contract theories.  Traditionally,
however, tort doctrine has premised liability on an injury to an
identified party.  But is "injury" a necessary pre-requisite?  I address
whether tort values support these "no injury" causes of action.  In
other words, should "no injury" claims be actionable under the varied
rationales for the tort system and, if so, under what circumstances?

V.  Questions and Answers (audio)

***

BGS

March 29, 2010 in Aggregate Litigation Procedures, Books, Class Actions, Conferences, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Regulation, Settlement | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 23, 2010

Litigating Together: Social, Moral, and Legal Obligations

I have posted a draft of the last in a trilogy of articles on nonclass aggregation and thought I would provide a brief retrospective for the interested reader.  The first article in the trilogy is Procedural Justice in Nonclass Aggregation, which explains in-depth the problems and risks presented by nonclass aggregation.  It observes that systemic legitimacy and compliance with judicial decisions hinges on ensuring procedural justice, but that our current system for handling large-scale litigation fails to provide a number of key procedural-justice components including the preference for adversarial litigation, participation opportunities, impartiality, and error correction.  These institutional shortcomings are due in large part to the trade-offs inherent in large-scale litigation.  Those trade-offs include that "litigation is no longer adversarial despite litigants’ preferences, but effective individual litigation is too costly to pursue; aggregate settlements provide few participation opportunities and no avenues for appeal or error correction despite potential conflicts, but, without aggregate settlements, cost and delay could be staggering and the relief may come too late; mediators or special masters might afford claimants additional participation opportunities, but process is then less adversarial and may suffer from legitimacy problems."  Id. at 46. 

The second article in the trilogy is Litigating Groups. In Litigating Groups, I laid the theoretical groundwork for an alternative to our current approach by borrowing insights from other disciplines—social psychology, moral and political philosophy, and behavioral law and economics—and bringing those notions of commitment, community, and groups to bear on nonclass aggregation.  By relying on the other-regarding preferences that tend to form from group membership, I argued that groups of plaintiffs may have or could be encouraged to develop organic or indigenous origins such that they form moral obligations to one another that are reinforced by social and personal norms. (I have also summarized these contentions in a short response to Judge Weinstein - A New Way Forward: A Response to Judge Weinstein.)

The current (and latest) article is the third and final piece in the trilogy.  It's titled Litigating Together, Social, Moral, and Legal Obligations.  This Article translates the theoretical foundation laid in Litigating Groups into concrete, feasible procedures for litigating together.  Although Litigating Groups maintained that plaintiffs who form groups will likely develop other-regarding preferences toward their fellow group members, it did not fully formulate procedures for promoting cooperation and group formation; decide when, whether, or how to impose sanctions when norms and moral obligations fail; contemplate incentives to join the group; or determine when exiting the group is appropriate.  Accordingly, this Article takes up those hard questions as well as the challenge of determining whether and how substantive and procedural law should enforce moral obligations once a certain level of moral interconnectedness exists.  Here's the SSRN abstract:

In a post-Class Action Fairness Act world, the modern mass-tort class action is disappearing. Indeed, multi-district litigation and private aggregation through contracts with plaintiffs’ law firms are the new mass-tort frontier. But something’s amiss with this “nonclass aggregation.” These new procedures involve a fundamentally different dynamic than class actions: plaintiffs have names, faces, and something deeply personal at stake. Their claims are independently economically viable, which gives them autonomy expectations about being able to control the course of their litigation. Yet, they participate in a familiar, collective effort to establish the defendant’s liability. They litigate from both a personal and a collective standpoint.

Current scholarship overlooks this inter-personal dimension. It focuses instead on either touting the virtues of individual autonomy or streamlining mass litigation to maximize social welfare. Both approaches fail to solve the unique problems caused by these personal dimensions: temptations for plaintiffs to hold out and thus derail settlements demanding near unanimity, outliers who remain disengaged from the group but free-ride off of its efforts, and subgroups within the litigation whose members compete for resources and litigation dominance to the group’s detriment. Accordingly, this Article has two principal objectives: one diagnostic, one prescriptive. The diagnosis is this: current procedures for handling nonclass aggregation miss the mark. Process isn’t just an exercise in autonomy or a handy crutch for enforcing substantive laws. Procedures can serve as a means for bringing plaintiffs together, plugging their individual stories into a collective narrative, making sense of that narrative as a community, reasoning together about the right thing to do, and pursuing that end collectively. Thus, the prescription is litigating together.

Along the way, I've developed a few aspects of this overall project in greater detail for various symposia:

 In Aggregation, Community, and the Line Between, I provided a more detailed account of the moral and political theory animating this "litigating together" approach.  This article contends that encouraging plaintiffs to form groups and reach decisions through deliberation relies on a mix of individual consent and moral obligation. Allowing plaintiffs to exercise their free will when deciding whether to associate with others preserves the liberal tenet of self-determination and escapes the anti-democratic criticism leveled at class actions. Yet, a purely liberal approach fails to capture the obligatory aspect of reciprocal promises to cooperate and the communal obligations that attach. Although plaintiffs voluntarily enter into the group, once they are group members and have tied together their collective litigation fates, they should not be permitted to exit when doing so violates their commitments. Of course, the community itself determines the content of its members’ rights and obligations to one another. Thus, the article concludes by explaining the rationale for group autonomy in terms of pluralism and communitarianism. 

In Group Consensus, Individual Consent (which is still very much "in progress," as they say), I explore how this project relates to sections 3.17 and 3.18 of the American Law Institute’s Principles of the Law of Aggregate Litigation and use those principles as a lens for exploring thematic questions about the value of pluralism, group cohesion, governance, procedural justice, and legitimacy in nonclass aggregation.  Both this project and Litigating Together: Social, Moral, and Legal Obligations are still very much in progress, so, as always, I welcome your comments. 

I'm extremely grateful for all of the helpful comments and criticisms of so many scholars in the field along the way.  I'm also looking forward to tackling new and different projects that have been waiting in the wings for some time now.

ECB

March 23, 2010 in Aggregate Litigation Procedures, Class Actions, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Resources - Publications, Settlement, Vioxx, Zyprexa | Permalink | Comments (0) | TrackBack (0)

Saturday, March 20, 2010

9/11 First Responder's Settlement Rejected by Judge

On Friday Judge Hellerstein (SDNY) rejected the settlement that had been reached by lawyers in the 9/11 First Responders Litigation (otherwise known as In Re World Trade Center Disaster Litigation).  He said the settlement was too obscure and that the lawyers were probably being paid too much at 30%.

The New York Times coverage is here:  Judge Rejects Deal on Health Claims of Workers at Ground Zero

The Times reports that the Judge said he would oversee further negotiations and would take "judicial control" over the matter.  "There has to be additional negotiations to come up with a better and fair settlement. I will not preside over a settlement based on fear or ignorance."  He said.  "I want transparency. I want accountability. I want judicial control over this process.  They've got to come up with an agreement under judicial supervision that will make us all proud."

The judge also said he would hear from plaintiffs directly about the settlement when the time came, not from their lawyers.  I recommended that judges do this in an article called The Law and Large Numbers - if you're looking for other similar suggestions, read the last few pages of that piece. 

Now for some law.  The judge does not have formal veto over the settlement the way that he would had this case been certified as a class action (basically impossible now after Amchem).  And the right of a judge to reject a settlement like this has never been tested on appeal.  (Richard Nagareda is quoted in the Times saying this - and he will be posting on Torts Prof Blog Monday so you can read his views on aggregation there). 

The ALI Aggregate Litigation Project has proposed letting judges oversee aggregate settlements in the way Judge Hellerstein is doing but as a formal matter.  What the judge is doing now is not a formal requirement, but a use of discretion.  Of course, once the judge opines that the settlement isn't good whether he has a formal veto or not doesn't matter because there is no way the 95% of the plaintiffs required for the settlement to go forward will agree to accept its terms.  So as a matter of practice it looks like the ALI model is being adopted informally.

ADL 

 

March 20, 2010 in 9/11, Aggregate Litigation Procedures, Settlement | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 17, 2010

ASLCH Annual Conference and Presentation on "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"

On Saturday, March 20, I'll be speaking as part of a panel on "Pluralism in Tort Law and Litigation" at the annual meeting of the Association for the Study of Law, Culture, and Humanities, at Brown University in Rhode Island.  The panel will be moderated by Professor Alan Calnan (Southwestern), and other presenting panelists are Professors Christopher Robinette (Widener) and Sheila Scheuerman (Charleston). A podcast of the panel may later be posted on this blog.  Given the conference's focus on culture and humanities, my talk draws upon literature and political theory.  Here's the abstract for my talk:

Byron Stier -- "Examining Litigant Autonomy in Mass Torts: Insights from the Individualism of Ayn Rand"

Class actions and other aggregate procedural methods raise questions about the relationship of the individual to the group.  Litigant autonomy -- the litigant's interest in controlling his or her lawsuit -- has generally been considered merely one value among others in mass tort litigation, and only recently has a robust commitment to litigant autonomy been seen to call into question the entire structure of class action practice.  In looking for insight into the proper place for litigant autonomy in class actions or other management methods, we might fruitfully turn to political debates concerning the relationship of the citizen to the state, for both settings examine the rights of the individual against the perceived needs of the group or collective.  For discussion of that political question, I look to an unusual source -- outside law, to the literature of one known for her radical political individualism, Ayn Rand.  Her novel, "We The Living," which was published in 1936 and is set in the aftermath of the communist revolution in Russia, puts forth a moral argument for individualism stemming from the sanctity of one's own life, and of one's control of one's own life, for one's own ends, not the group's; she also argues that personal tragedy and systemic corruption accompany an approach that fails to respect individuals' lives and choices.  Turning back to mass tort litigation, I suggest that our notion of litigant autonomy can be informed by Rand's themes and that current class action rules show flaws similar to the collectivism that Rand critiques. Viewing litigant autonomy not merely as one value among others, but instead as an organizing principle that must be respected as a core right, I suggest that current class action rules regarding notice, opt-out, and settlement are problematic because they do not allow adequate expression of individual preference and they blunt each class member's individuality.  In addition, by avoiding individual control, the current class action rules create fertile ground for corruption and collusive settlements.

BGS

March 17, 2010 in Aggregate Litigation Procedures, Class Actions, Conferences, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0) | TrackBack (0)

What Should Plaintiffs In Aggregate Litigation Ask Their Lawyers?

What should plaintiffs in large-scale litigation that settles as an aggregate settlement -- like Vioxx or the WTC litigation -- ask their lawyers in trying to evaluate the settlement?  As a general matter, plaintiffs are trying to compare unknowns and this is really hard. 

If it were the case that a lawyer could tell her client "well, if you go to trial you will get X and if you settle you will get X minus 10 but will save transactions costs" this would be easy.  But nobody knows what will happen at trial, and sometimes settlements themselves can only offer ballpark predictions rather than actual numbers.  For example, the plaintiffs choosing to participate in the 9/11 victims compensation fund were taking a risk that they would get something different than what the tort system would provide and they did not know in advance what that number would be.  Most of them elected to participate in that administrative process rather than the tort system.  Those that did not eventually settled, but it took a lot longer.  Settling is not just about money and the risk of losing at trial or pretrial motions, but also time and the emotional costs of litigation.

Here are some ideas for questions - happy to add others as comments come in:

1. What are the weaknesses in my case? What are the strengths?

2. What are the chances we will lose before or at trial?

3. What are the costs to me of going to trial, in terms of money, time and emotions?

4. If we go to trial, how long will it take for me to eventually get paid? Are there likely to be appeals and how long will that take?

5. How does the amount I am being offered compare to what other, similarly situated plaintiffs are getting?

6. How does the amount I am being offered compare to what plaintiffs who have lesser harm/greater harm are getting?

ADL

March 17, 2010 in Aggregate Litigation Procedures, Settlement | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 16, 2010

WTC Litigation Settlement Link

The WTC Settlement is now available online. I wasn't able to track it down until late last night. Here is the link, from the Bern Napoli website (that is the firm spearheading the settlement):

http://www.nbrlawfirm.com/blog/read_blog/213/wtc-respiratory-illness-law

ADL

March 16, 2010 in 9/11, Settlement | Permalink | Comments (1) | TrackBack (0)