Thursday, April 30, 2015

Constructing Issue Class Actions

There's been a lot of chatter over the past few years about the greater use of issue classes.  The Rule 23 Subcommittee in its recent report (p. 41) indicated that issue classes top its agenda for possible reform and there's been a greater willingness to rely on Rule 23(c)(4) among the circuit courts over the last few years.  Much of the scholarship on issue classes thus far, however, has focused on how to use issue classes in conjunction with Rule 23(b)(3)'s predominance requirement.  Professor Laura Hines (Kansas) has, for instance, written a series of articles on the topic and there have been several debates in symposium pages, such as DePaul's 2013 symposium.  

Whatever side of the debate one adheres to on the to-be-or-not-to-be question, the courts are embracing issue classes.  Thus, there remains much work to be done on discerning which issues should qualify for certification, how to think about Seventh Amendment Reexamination Clause questions, and how to compensate plaintiffs' attorneys who initiate issue classes.

I've recently written a paper on issue classes that takes some steps toward fleshing out these problems.  The paper is long since it's meant to be a one-stop shop for judges and attorneys on the subject, but here are the critical points worth underscoring:

First, one of the main difficulties of our system is that the focus in massive lawsuits has shifted to the ways in which the plaintiffs are dissimilarly situated, even when the defendant's conduct is uniform.  Take the GM ignition switch debacle or the Toyota acceleration cases, for example.  Corporate actions are nonindividuated; it doesn't make sense to litigate what GM or Toyota did in 40,000 different cases.  (Draft pp 5-8) But defendants have successfully shifted the procedural focus to how their behavior affected claimants, which tends to defeat class certification because common questions do not predominate over individual ones.  The issue class has the potential to recapture what is common to the plaintiffs: defendant's conduct--at least so long as that conduct is nonindividuated.  One can capture this notion by divvying up the legal elements in any claim or defense as "conduct components," which concern the defendant's conduct, or "eligibility components," which concern a plaintiff's eligibility for relief.  (Draft pp 15-29)

Second, by embracing the standard suggested by the ALI's Principles of the Law of Aggregate Litigation, courts can ease the supposed tension (to the extent any remains) between Rule 23(c)(4) and Rule 23(b)(3).  (Draft pp 31-32)  Courts should certify issue classes where resolving the issue would "materially advance the resolution of multiple civil claims by addressing the core of the dispute in a manner superior to other realistic procedural alternatives, so as to generate significant judicial efficiencies." (Principles, 2.02(a)(1), 2.02 cmt. a, 2.08, 2.08 cmt. a)  Predominance is embedded in the "materially advance" language and superiority is included as a condition that certifying the issue would be "superior to other realistic alternatives" such that it "generate[s] significant judicial efficiencies."  Moreover, the courts themselves seem to have reached a general consensus on this matter, with even the Fifth Circuit embracing issue classes in In re Deepwater Horizon, 739 F.3d 790, 804 (5th Cir. 2014).  (Draft p. 30)

Third, courts must figure out a way to compensate (and thus incentivize) plaintiffs' attorneys.  This is perhaps the trickiest part because of both the lack precedent and doctrinal hurdles such as Lexecon.  Lexecon presents a special challenge in multidistrict litigation cases where issue classes might prove most useful.  Nevertheless, one need not invent a theory out of whole cloth.  Charging liens and the common-benefit doctrine provide sound analogies for fashioning a coherent path forward.  (Draft pp 42-50)

Finally, there are some hurdles to making issue classes stick, such as preclusion doctrines, adequate representation, and the Seventh Amendment Reexamination Clause.  Thus, the paper concludes by suggesting solutions to these problems and arguing that preclusion can provide a way to coordinate dispersed public and private regulators.

As always, comments are welcome (eburch at uga.edu).

April 30, 2015 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Tobacco, Vioxx | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2015

11th Circuit holds Engle progeny cases preempted

You can find the surprising opinion here.   The crux of the opinion is the last paragraph:


Cigarette smoking presents one of the most intractable public health
problems our nation has ever faced. It was not so long ago that anyone would walk
a mile for a Camel: cigarette smoke once filled movie theaters, college classrooms,
and even indoor basketball courts. For fifty years, the States and the federal
government have worked to raise awareness about the dangers of smoking and to
limit smoking’s adverse consequences to the greatest extent possible, all without
prohibiting the sale of cigarettes to adult consumers. To that end, the State of
Florida may ordinarily enforce duties on cigarette manufacturers in a bid to protect
the health, safety, and welfare of its citizens. But it may not enforce a duty, as it
has through the Engle jury findings, premised on the theory that all cigarettes are
inherently defective and that every cigarette sale is an inherently negligent act. So
our holding is narrow indeed: it is only these specific, sweeping bases for state tort liability that we conclude frustrate the full purposes and objectives of Congress.
As a result, Graham’s Engle-progeny strict-liability and negligence claims are
preempted, and we must reverse the District Court’s denial of judgment as a matter
of law. For these reasons, the judgment of the District Court is REVERSED.

Case: 13-14590 Date Filed: 04/08/2015 Page: 50 of 50

April 9, 2015 in Aggregate Litigation Procedures, Class Actions, Tobacco | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

In Memorium: Ronald L. Mottley (1944-2013)

Famed mass tort plaintiffs' lawyer Ron Mottley has passed away, according to an announcement today on the Mottley Rice firm website by his partner Joe Rice. Mottley played a leading role in many of the biggest mass torts -- asbestos, tobacco, 9/11, Gulf oil spill, and lead paint, to name a few. I knew him only from accounts of his work and from reading about him in various books on the tobacco litigation and other mass tort wars. He was known not only for his legal skill and tenacity, but also for his outsized personality and lifestyle. Dionne Searcey at the WSJ law blog describes Mottley as "the gregarious, hard-charging and hard-living attorney who was known for his compassion for victims of corporate wrongdoing."

HME

Update: here's a link to the New York Times article

ECB

August 22, 2013 in 9/11, Asbestos, Avandia, Lawyers, Lead Paint, Tobacco | Permalink | Comments (0) | TrackBack (0)

Monday, August 19, 2013

Supreme Court Petition in Engle Progeny Case

Am Law Litigation Daily has an article on the tobacco companies' filing another certiorari petition in an Engle progeny case: Tobacco Companies Seek Supreme Court Cert in Engle Case, by Ross Todd.  Here's their petition for a writ of certiorari.  The appellate team includes Greg Katsas (Jones Day), Paul Clement (Bancroft), and Miguel Estrada (Gibson Dunn).

I've previously addressed issue preclusion, verdict variability, and problems with the Engle case in my article, Jackpot Justice: Verdict Variability and the Mass Tort Class Action, 80 Temp. L. Rev. 1013 (2007).

BGS

August 19, 2013 in Aggregate Litigation Procedures, Class Actions, Procedure, Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Sunday, July 21, 2013

Khoury, Menard & Redko on the Role of Canadian Private Law in the Control of Risks Associated with Tobacco Smoking

Professors Lara Khoury and Marie-Eve Couture-Ménard (McGill), and Olga Redko (LL.B./B.C.L. Candidate, McGill) have posted to SSRN their article, The Role of Private Law in the Control of Risks Associated with Tobacco Smoking: The Canadian Experience, 39 Am. J. L., Med. & Ethics 442 (2013).  Here's the abstract:

Can private law litigation serve as a tool for advancing public health objectives? With this contentious and oft-asked question in mind, this text tackles Canada’s recent tobacco litigation. This Article first presents critical commentary regarding various lawsuits waged against Canadian cigarette manufacturers by citizens acting as individuals or as parties to class action lawsuits. We then turn to analyze how Canada’s provincial governments rely on targeted legislation to facilitate private law recourses for recouping the healthcare costs of treating tobacco-related diseases. The authors address challenges to the constitutionality of this type of legislation, as well as attempts by manufacturers to transfer responsibility to the federal government.

BGS

July 21, 2013 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship, Procedure, Products Liability, Tobacco | 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)

Friday, March 15, 2013

Florida Tobacco Litigation Soldiers On

The Florida Supreme Court affirmed the preclusive effect of Engle - giving further support to the development of issue class actions.  The opinion is here: http://www.floridasupremecourt.org/decisions/2013/sc12-617.pdf

ADL

March 15, 2013 in Tobacco | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2013

Junk Food: The Next Mass Tort?

The allegation that sugar is "toxic" and the recent article in the NYTimes "The Extraodinary Science of Junk Food" indicates that fast food litigation may indeed be the next tobacco.  I am interested, do we have readers who are litigating or defending cases?  I found a 2008 article in Findlaw on the subject for those interested: Obesity, the Next Tobacco?

UPDATED:  There is an article on one of the centers of food litigation: The Northern District of California in the Recorder (h/t Tort Prof Blog).

ADL

February 28, 2013 in Food and Drink, Tobacco | Permalink | Comments (1) | TrackBack (0)

Friday, November 30, 2012

Engle's Progeny

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

November 30, 2012 in Aggregate Litigation Procedures, Class Actions, Procedure, Tobacco | Permalink | Comments (1) | TrackBack (0)

Saturday, April 14, 2012

Comparative Case Valuation: Tobacco Edition

BNA Class Action Litigation Reporter has an article about Engle's progeny and how the Florida courts are dealing with the variation in jury verdicts in those cases.  Here the link - behind a pay wall unfortunately.

In sum and substance, the Florida Supreme Court permitted an issue class action regarding the conduct of the tobacco companies to stand and ruled that the results have preclusive effect in subsequent cases.  Now the Individual cases are being litigated.  There are many plaintiffs verdicts.  BNA describes that there have been 50 judgments and compensatory damages were awarded in 35 cases.  Of those, in  at least 10 the jury awarded more than $7 million.  Not all have survived on appeal. 

I am interested in this suit because I think issue class actions are the cutting edge of class litigation and because there is potential here to use statistical methods to come up with a solution that is better than spending many millions litigating every case to judgement and appealing it.

  Here is the list of verdicts above $7 million:

$8 million compensatory and $71.2 million punitive damages (vacated on appeal) - Webb  (No. 1D10-6557, 4/9/12) 

$ 8 million compensatory - Tate (No. 2007–CA-021723 (17th Cir. Broward County))

$7.8 million compensatory - Campbell (No. 2008 CA 2147 (1st Cir. Escambia County)) (upheld on appeal).

$10 million compensatory - Cohen (No. 2007–11515 (17th Cir. Broward County)).

$7 million compensatory - Grey (No. 2007–CA-002773 (1st Cir. Escambia County)) (upheld on appeal)

$56.59 million compensatory - Naugle (No. 07–036736CA (17th Cir. Broward County)).

$15 million compensatory - Putney (No. 2007–CV-36668 (17th Cir. Broward County)).

$10.8 million compensatory - Townsend (No. 01–2008–CA-003978 (8th Cir. Alachua County)) (upheld on appeal) (40 million punitive damages award struck down). 

$20 million compensatory - Alexander (No. 07–46830–CA-10–4 (11th Cir. Miami-Dade Co.)) (on appeal)

$10 million compensatory and $20 million punitives - Smith (No. 09-719-CA (14 Cir. Jackson County) (on appeal)

Readers who know of others, or have a list of all the verdicts, please let us know.  ADL

 

 

 

 

April 14, 2012 in Aggregate Litigation Procedures, Tobacco | Permalink | Comments (0) | TrackBack (0)

Saturday, January 28, 2012

Links to the Florida/Tobacco Cert Petitions

Scotusblog has the links to all the linked petitions in the litigation arising out of the use of preclusion in issue class actions.  Here is the link to Scotusblog.

The question presented is "whether the imposition of liability based on earlier litigation without any assurance that the earlier litigation actually decided the precluded issue violates the Due Process Clause of the Fourteenth Amendment."

ADL

January 28, 2012 in Class Actions, Tobacco | Permalink | Comments (0) | TrackBack (0)

Friday, January 20, 2012

The Future of Class Actions (and How to Stop It)

The title of this post is taken, very unimaginatively, from Jonathan Zittrain's The Future of the Internet and How to Stop It

Adam Zimmerman has another great post on PrawfsBlawg today -- called the Privatized Attorney General -- about the possibility that attorneys general might save the class action device through parens patrea suits.  Worth reading.

On the mass torts side of the spectrum, apparently WLF has filed an amicus brief seeking cert in the progeny of Engle - the case is Philip Morris USA, Inc. v. Campbell. The argument is that the use of issue preclusion in these tobacco cases, available because of a Florida Supreme Court ruling upholding an issue class action in the tobacco litigation there.  

If any reader has more information, is submitting additional amicus briefs or authored the cert petition, please the informaiton to me so that I can post about it.  The Wal-Mart v. Dukes opinion indicates to me that the Court (or at least Justice Scalia) is itching to beef up some defense-side due process rights, and this case is a good vehicle for that.

ADL

January 20, 2012 in Class Actions, Tobacco | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Supreme Court Rejects Tobacco Appeal

The Supreme Court yesterday rejected an appeal filed by Phillip Morris of a $270 million dollar judgment in a state court class action in Louisiana.  Justice Scalia had issued an order last September blocking the verdict.  .

As Lyle Dennison writes on Scotusblog, this is suprising given the Court's hints in the Wal-Mart decision. He explains:

After the Wal-Mart decision, the tobacco companies made a new plea to the Court to take up their case, since the Court had not resolved any constitutional questions in the retailer’s case.  But, at the most, Court observers had speculated that, if the Court did not grant review, it at least would wipe out the Louisiana court’s verdict and order it to reconsider under Wal-Mart.  An outright denial was not at all anticipated.

ADL

June 28, 2011 in Class Actions, Tobacco | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

Some Links to Analysis of the Wal-Mart Opinion

Wal-Mart around the blogs:

Adam Steinman's recap of the case is available on Civil Procedure & Federal Courts Prof Blog.

Sergio Campos analyzes the case on Prawfsblawg.

Lyle Dennison's analysis is on Scotusblog.  Dennison points out the concrete importance of Wal-Mart v. Dukes for mass torts, particularlyPhilip Morris USA, Inc., et al., v. Jackson (docket 10-735) :

That is a case that turns entirely on constitutional questions — a massive class-action lawsuit against the nation’s major cigarette companies in Louisiana state court that resulted in an award of $270 million to a class of former smokers.

Justice Scalia stayed that ruling last September.  The Court has been holding the case until it decided the Wal-Mart case.  It now is expected to take action on that case; its options include granting the case, or sending it back to Louisiana courts to consider the impact of the Wal-Mart decision.   Since the Wal-Mart decision turns mainly upon the meaning of a federal court rule (Rule 23) that does not apply to class-action lawsuits in state court, it is unclear how much specific guidance state courts could take from Monday’s decision.

ADL

June 20, 2011 in Class Actions, Resources - Other Blogs of Interest, Tobacco | Permalink | Comments (0) | TrackBack (0)

Saturday, April 30, 2011

Tobacco Companies Not Liable to Missouri Hospitals

Bloomberg News and the New York Times published an article yesterday detailing a Missouri jury's findings in a lawsuit against Phillip Morris, R.J. Reynolds, Lorillard, and other cigarette makers.  Roughly forty MIssouri hospitals alleged that the tobacco companies manipulated the nicotine in cigarettes, misrepresented the health effects of smoking, and requested more than $455 million in damages.  After deliberating for seven days, the jury rejected the hospitals' claims.  The hospitals are still deciding whether to appeal.

The Wall Street Journal Law Blog has a related article, The Best and Worst Weeks for Big Tobacco.

ECB 

April 30, 2011 in Tobacco | Permalink | Comments (0) | TrackBack (0)

Monday, January 24, 2011

Tobacco Medical Monitoring Decision in Eastern District of New York

Judge Amon in the Eastern District of New York last week dismissed plaintiffs' medical monitoring claim in a proposed tobacco class action.  Caronia v. Philip Morris USA, Inc., No. 06-CV-224 (E.D.N.Y. Jan. 13, 2011).  Here's the decision.

BGS

January 24, 2011 in Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Thursday, March 25, 2010

Reynolds' Move Into Smokeless Products

Thorough article in the Wall Street Journal -- Smokeless Products Are Tough Test for Reynolds, by David Kesmodel.

BGS

March 25, 2010 in FDA, Regulation, Science, Tobacco | Permalink | Comments (0) | TrackBack (0)

Friday, March 19, 2010

Florida's Third District Court of Appeals Upholds $24 Million Tobacco Verdict

The Third District Court of Appeal in Florida unanimously upheld a $24.8 million verdict against Phillip Morris USA, Brown & Williamson, and Liggett Group.  It's the first appellate ruling upholding a verdict since the Florida Supreme Court dismantled the Engle class action.  (The appeal to the Eleventh Circuit in Engle is still pending.)

Here's an excerpt from The Daily Business Review's article on the case:

With Lukacs dying, his attorneys sued and pushed for a quick trial in 2002 instead of forcing their cancer-ridden client to wait for the Supreme Court ruling. 

"He wanted his day in court, and the only way to obtain his day in court was to try the case before the Florida Supreme Court made its decision," said Alters Boldt Brown Rash special counsel Bruce Rogow, who argued the appeal for Lukacs' family. 

The jury awarded Lukacs' widow, Yolanda, a total of $37.5 million in 2002. The award was later reduced to $24.8 million. 

Tobacco attorneys appealed, challenging trial decisions and insisting smoker trials could not proceed without a Supreme Court directive. 

The 3rd DCA decision cited the Supreme Court ruling, which allowed smokers to pursue individual lawsuits and offer the original jury's findings as fact. New juries are advised to accept that smoking causes cancer and other illnesses, cigarettes are addictive and tobacco companies defrauded consumers by misleading them. 

"It sends a clear message that Engle is the guiding light in Florida tobacco litigation," Rogow said.

ECB

March 19, 2010 in Tobacco | Permalink | Comments (0) | TrackBack (0)

Monday, March 8, 2010

Amicus Brief - Cert Petition: Legislative Jurisdiction/Extraterritoriality

My colleague at Southwestern Law School, Austen Parrish, is asking that law professors contact him if they might be interested in signing on to an amicus brief in support of a petition for writ of certiorari in British American Tobacco v. United States.  See the notice, below, for details.

BGS

UPDATE -- The links are fixed in the notice below and should now work.

***

Amicus Brief – Extraterritoriality and Legislative Jurisdiction

Max Huffman (Indiana) and Austen Parrish (Southwestern) have written an amicus brief in the case British American Tobacco v. United States in support of a petition for cert.   The cert. petition is part of a massive case brought by the U.S. against the tobacco companies. Various cert. petitions have been filed, including a government petition seeking recovery of a $280 billion disgorgement award.  Details about the underlying case can be found on SCOTUSblog. 

The amicus brief focuses only on the narrow issue of how a court should approach issues of extraterritorial jurisdiction.  They are looking for full-time law professors at U.S. law schools to sign on to the brief.  If you would consider signing on to the amicus brief, please email Austen Parrish at aparrish@swlaw.edu, and he can send you a draft for review. There’s a tight deadline and the brief will be finalized this week: the deadline for providing notice to file the amicus is this Friday and the brief will likely go to the printer early next week.  Because the effects test applies in a number of contexts (antitrust, securities, trademark, labor law, environmental law, criminal law etc.), the D.C. Circuit's decision could have far-reaching implications. This would be a good opportunity for the Court to clarify what is now a confused area of law.

Quick Overview of Case and Issues

The petitioner's cert petition implicates the question of whether RICO applies to the overseas conduct of foreign corporations.  The D.C. Circuit did not directly address whether Congress intended RICO to apply extraterritorially -- an issue on which the lower courts are divided.  Instead, it found: (1) that when domestic effects are felt in the United States, regulation of foreign conduct of a foreign corporation does not implicate extraterritorial jurisdiction; and (2) that it need not decide whether RICO applies extraterritorially so long as the foreign conduct has substantial effects in the United States.  Because the D.C. Circuit found a domestic effect, it presumed that Congress intended RICO to regulate abroad.  The case raises interesting questions about the role of the presumption against extraterritoriality, the effects test, and international law.  It implicates at least a three-way circuit split on how the courts determine legislative (prescriptive jurisdiction).

The amicus brief focuses on how a court should interpret the geographic reach of federal law (the extraterritoriality question).  The brief is being submitted to encourage the Court to grant certiorari. After explaining the confusion that exists in the lower courts on the issue of legislative jurisdiction, the brief clarifies the history and application of the effects test and shows how that history bears upon the proper interpretation of whether Congress intended a statute to reach extraterritorial conduct.  The brief does not take a position on the underlying merits: the federal government's use of RICO to prevent and restrain an alleged scheme to deceive American consumers about the health risks of smoking.  The amicus brief argues that courts should not use the effects to create a presumption in favor of extraterritorial regulation, but rather that the effects test sets the outer limit of Congressional power under international law (assuming one of the other bases for jurisdiction under international law does not exist).  The brief highlights how assuming that legislation applies extraterritoriality can cause harm and undermine the meaningful development of international law. 

Professors Huffman and Parrish have previously written about these issues, which forms the basis for the amicus brief. Professor Huffman’s article on the Foreign Trade Antitrust Improvements Act can be found here.  Professor Parrish has written two pieces.  The first, Reclaiming International Law from Extraterritoriality can be found here.   The second, The Effects Test: Extraterritoriality’s Fifth Business can be found  here.

March 8, 2010 in Aggregate Litigation Procedures, Foreign, Procedure, Products Liability, Tobacco | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 27, 2010

Oral Argument on the Preclusive Effect of the Engle Case

In Engle v. Liggett Group, 945 So.2d 1246, the Florida Supreme Court decertified a smoker class action, but held that factual findings in a class action of cigarette smokers could be preclusive in subsequent actions by individual plaintiffs.  Now the 11th Circuit is charged with deciding whether this violates due process and what exactly the preclusive effect of the factual findings in the original class action will be in Brown v. R.J. Reynolds Tobacco Co., 08-16158.

The case was argued by NYU law professor Sam Issacharoff on behalf of the plaintiffs and Andrew Frey of Mayer Brown for the defendant tobacco company. A description of the argument can be found on Law.com.

Thanks to Richard Nagareda (Vanderbilt) for alerting me to these developments. 

ADL

January 27, 2010 in Class Actions, Procedure, Tobacco | Permalink | Comments (0) | TrackBack (0)