Tuesday, October 27, 2015

Repeat Players in MDL: VW edition

The New York Times has an article by Barry Meier called Lawyers Jostle for Lead Position in Volkswagen Suits.  

Quoted in the article are our own Beth Burch (who has recently written a great article on repeat players in MDL litigation) and Howard Erichson (who has written significant articles about the ethics of settlements in mass tort including Vioxx).


October 27, 2015 in Aggregate Litigation Procedures, Mass Tort Scholarship, Vehicles | Permalink | Comments (0)

Wednesday, September 23, 2015

Trust, VW Brand Management, and Emissions Litigation

Harvard Business Review has a an article, What VW Didn't Understand About Trust, by Andrew Wilson.  As perhaps occurred in the Toyota Unintended Acceleration Litigation, VW may be motivated to settle somewhat swiftly any civil litigation or regulatory or criminal inquiries and fines, as part of a larger strategy to regain the public's trust and preserve its brand.   

September 23, 2015 in Class Actions, Products Liability, Travel, Vehicles | Permalink | Comments (0)

The Economist on VW Share-Price Drop and Emissions-Related Fines

The Economist has posted an article, Why Volkswagen’s share price has fallen so far.

September 23, 2015 in Regulation, Travel, Vehicles | Permalink | Comments (0)

Growing VW Emissions Litigation, and Potential Parallels to the Toyota UAL Litigation

Tuesday, July 1, 2014

Coverage of GM's New Fund

Joe Nocera has a short opinion piece on Ken Feinberg and his work in progress - the GM claims fund. You can find the piece here.  The question for Feinberg is always - is this replicable?  The answer depends on the company's tolerance for risk and desire for atonement.  

The New York Times' Danielle Ivory also covered the new fund here, explaining how the fund works.

I also recommend the Valukas report on GM. My favorite part is his description of the "GM nod."  Everyone at a meeting nods their head to a plan, nobody actually does anything to move it forward.   

July 1, 2014 in Aggregate Litigation Procedures, Informal Aggregation, Lawyers, Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Thursday, May 29, 2014

Lawyers Seek MDL Status for Ignition-Switch Liability Suits Against GM

Plaintiffs' attorneys huddled in Chicago on Wednesday to strategize about where to ask the MDL Panel to send the GM ignition switch cases.   As usual, there are several things that will influence plaintffs' attorneys' pick.  

According to this morning's article in the WSJ, Elizabeth Cabraser called the litigation "a perfect storm for a class action."  Maybe.  But that will largely depend on which circuit and which judge hears the case, how GM's bankruptcy affects the pending claims, and whether attorneys forgo personal injury claims (they will likely be excluded in the class definition) to pursue product liability and economic injuries.  

Choice of procedural law, like how to apply Rule 23, can vary.  Under Chan v. Korean Airlines, Ltd. (D.C. Cir. 1989), the Van Dusen doctrine, which holds that transferee courts must apply the choice of law interpretation of the transferor circuit, may not apply to 1407 transfers.  Rather, when it comes to procedural and other federal law matters, Korean Airlines suggests that transferee courts are obligated to follow their own interpretation of the relevant law.  Several circuits follow this rationale including the Second, Eighth, Ninth, and Eleventh.  Other circuits, including most notably, the Seventh, have held that a transferee court should use transferor court's interpretation of federal law.

 According to Bloomberg, several plaintiffs' attorneys are pushing for a California venue before Judge James Selna, who is currently handling the Toyota acceleration MDL.  This strategy makes sense on several fronts.  The Ninth Circuit, which originally upheld (in part) the certification in Dukes v. Wal-Mart Stores, Inc., has shown a willingness to resolve aggregate cases through class actions.  And given that courts in the Ninth Circuit apply their own procedural law where circuit splits are concerned, this could further help plaintiffs.  Finally, Judge Selna, who certified an economic loss settlement class action in the Toyota litigation, is a logical choice.

But other plaintiffs' attorneys (and of couse GM) have other ideas about where the MDL should land.  Bloomberg reports:

Other plaintiffs want the cases to be heard in Chicago, Miami or Corpus Christi,Texas, where they have sued. GM wants the cases consolidated in the federal court in Manhattan, about a mile from where a prior incarnation of the company filed for bankruptcy in 2009. Company lawyers say proximity to the bankruptcy court trumps Selna’s experience.

While the Panel considers the forum requests by the parties, it is in no way limited to those venues.  There are several factors that it typically cites in favor of forum selection such as the location of discovery materials, convenience of the witnesses, location of grand jury proceedings, possibility of coordination with related state-court proceedings, where the majority of cases are located, knowledge of the transferee judge, and the willingness and motivation of a particular judge to handle an MDL docket.  Of these factors, the transferee judge is by far the most important.  The Panel tends to look for judges who have handled MDLs successfully in the past.  And, for better or worse, "successful" means quick settlement (see here, p. 11-12 for more).

The Judicial Panel on Multidistrict Litigaiton is comprised of seven judges from around the country. Judge David Proctor is the Panel's newest edition and was added just this year to replace Judge Paul Barbadoro.

For more on the process that will--and should--unfold once a transferee judge is appointed and how those judges should go about appointing lead lawyers, see here.



May 29, 2014 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Procedure, Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 12, 2014

Why the GM Litigation May Not Be Your Usual Products Case

Hilary Stout of the New York Times reports in a piece today called "Lawyers Prepare for GM Suits with Novel Strategies."    The issue may be not just products liability, but fraud in the working out of the GM Bankruptcy.


March 12, 2014 in Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Sunday, December 15, 2013

Possible Toyota Mass Settlement in Unintended Acceleration Cases

Article in the Los Angeles Times:  Toyota looks to settle sudden-acceleration lawsuits, by Ken Bensinger.  I'm quoted in the article.


December 15, 2013 in Products Liability, Settlement, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)

Friday, October 25, 2013

Toyota Settlement in Unintended Acceleration Case Following $3 Million Compensatory Damages Verdict

According to the New York Times, the jury had also determined that Toyota had acted with "reckless disregard" and was about to begin deliberations on punitive damages when the settlement was announced.  The New York Times article also appropriately emphasizes that the case is noteworthy because plaintiffs' tried their claims of electronic throttle control problems.  

Though the New York Times article notes the ages of the plaintiff driver was 82 (the Los Angeles Times says she was 76), the New York Times article does not note that there have been in the past been particular concerns of pedal misapplication by older drivers, and the article does not reference a government report that found no problems in Toyota's electronic throttle control system.  According to CNNMoney, Toyota apparently argued that the plaintiff in Oklahoma case hit the gas, rather than the brake.  In response, plaintiffs pointed to long skid marks on the road, suggesting the driver was hitting the brake.  One wonders if the event data recorder in this car might have shed more light on the issue.  Toyota would certainly want to avoid having juries deciding unintended acceleration cases based on the believability of the testimony of a driver who claims to have hit the brake, rather than the accelerator.  If Toyota is unable to exclude plaintiffs' proferred expert testimony of electronic throttle control defect on the grounds that such testimony is not scientifically reliable, then Toyota should also be concerned that the jury may be unable to grasp the arcane details of software code design.  I'm reminded of the line by Robert Duvall's character in the film, A Civil Action, depicting the Woburn water contamination case; waiting for a jury decision, his character opines, "[I]t's not going to have anything to do with dates or groundwater measurements or any of that crap, which nobody can understand anyway.  It's going to come down to people like it always does."


October 25, 2013 in Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 23, 2010

Economic Claims Against Toyota Move Forward

Last week, District Judge James Selna refused to dismiss the economic injury claims by Toyota owners who alleged that the unintended acceleration problems caused a decrease in their cars' value.  The multi-district litigation includes more than 200 economic injury class actions and around 100 personal injury and wrongful death claims.  Judge Selna will consider Toyota's motion to dismiss the cases alleging wrongful injury and death on December 9.  Here's a link to the National Law Journal story.


November 23, 2010 in Current Affairs, Vehicles | Permalink | Comments (0) | TrackBack (0)

Monday, November 22, 2010

Two Families in Fatal Toyota Accident Join to Sue Toyota for Unintended Acceleration

The family who lost a son and granddaughter in the accident has come together with the man driving the Toyota to file a suit against Toyota for unintended acceleration.  Jan Crawford of CBS has the story.


November 22, 2010 in Products Liability, Vehicles | 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.


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

Monday, May 17, 2010

Mass Tort Crisis Management

Recent crises stemming from BP's oil spill and Toyota's acceleration problems have brought a swarm of media coverage, congressional hearings, regulatory agency activity, corporate news conferences, and lawsuits.  Indeed, theories of liability may stem not only from the initial traumatic incident or incidents, but from the corporation's putative mishandling of the crisis once it unfolds.  On the corporate side, what's called for is thoughtful and coherent crisis management that moves the corporation through the crisis in a way that resonates with corporate core values, thereby maintaining the value of the ongoing enterprise, and that is mindful of impending theories of liability.

Despite the great need for such a coherent approach to mass tort crisis management, what's remarkable is the apparent paucity of attention given the subject by legal scholars.  That may be because crisis management involves public relations and communications, as well as management and leadership; hence crisis management has been the focus of public relations consultants and some professors in communications schools and business schools.  But at the heart of corporate crises are frequently the law and liability, so law professors should not be absent.  Lawyers and law firms already occasionally promote their ability to handle an emerging corporate crisis by quickly assembling a team of lawyers from a broad array of areas -- see, e.g., Skadden's Crisis Management; and lawyer practitioners have delivered various continuing education talks and papers on crisis management, as well as an interesting short symposium paper by Harvey L. Pitt and Karl A. Groskaufmanis, When Bad Things Happen to Good Companies: A Crisis Management Primer, 15 Cardozo L. Rev. 951 (1994).  But while practitioners bring on-the-ground expertise, they may lack the theoretical depth and interdisciplinary zeal of law professors, and practitioners present a conflict-of-interest risk in preferring, for example, fee-heavy litigation over other methods of mass tort crisis management and resolution.  A full academic account of mass tort crisis management would entail an awareness and integration of various legal areas -- tort, procedure, litigation, ethics, regulatory action, congressional investigations and activity (including possible compensation funds), and pertinent constitutional issues -- with public relations and management.  I look forward to turning my attention increasingly to that task.

Where do you look for corporate crisis management expertise in mass torts?  Books, articles, law firms, or consultants?  Does your law firm market itself as offering corporate crisis management; if so, what's your approach?  If you work at a consulting group that does crisis management, do you have in-house lawyers that assist you or do you work with the corporation's outside counsel?  Feel free to post a resource or comment.


May 17, 2010 in Aggregate Litigation Procedures, Current Affairs, Environmental Torts, Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship, Procedure, Regulation, Vehicles | Permalink | Comments (0) | TrackBack (0)

Thursday, May 6, 2010

I Call Shotgun!

The article referenced by Beth Burch below reads like a who's who of mass tort and class action litigation.  But really the reason for this post was the nerdy title. 

h/t Robin Effron at the Civil Procedure Blog


May 6, 2010 in Aggregate Litigation Procedures, Lawyers, Vehicles | Permalink | Comments (0) | TrackBack (0)

Monday, April 12, 2010

JPML Consolidates Toyota Lawsuits in Souther District of CA

Friday, March 26, 2010

Toyotal Lawsuits - behind the scenes at an MDL

Here is an interesting article about the JPMDL oral arguments in the Toyota lawsuits: Lawyers Play Speed-Date in Toyota Tussle.

The issue the article discusses (rather disdainfully) is who will be the lead lawyers in the Plaintiffs' Management Committee because those lawyers will lead the litigation, garner the most fees, etc.

More needs to be written about procedures to allocate power among plaintiffs attorneys as well as fees, a process that could use more process.

Note too the names raised in the article: Mark Lanier (Houston based) who tried the Vioxx cases, Mark P. Robinson Jr (who according to the article was involved in the Ford Pinto litigation in the 70's), and Mark Geragos (who is best known for representing Michael Jackson).

h/t Todd Gilbert


March 26, 2010 in Aggregate Litigation Procedures, Lawyers, Procedure, Products Liability, Vehicles | Permalink | Comments (0) | TrackBack (0)

Monday, March 15, 2010

Walter Olson Attempts to Defuse the Toyota Panic

His article, Exorcising Toyota’s Demons, was published today in the National Review online.


March 15, 2010 in Lawyers, Products Liability, Regulation, Science, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)

Monday, February 22, 2010

Array of Lawsuits Expected Against Toyota

Professor David Owen (South Carolina) and I are quoted in a report tonight on All Things Considered on National Public Radio; the audio report -- Toyota Seen Facing Multiple Lawsuits, by Wendy Kaufman -- will also be posted on the web tonight at 7:00 p.m. EST.


February 22, 2010 in Aggregate Litigation Procedures, Class Actions, Informal Aggregation, Lawyers, Procedure, Products Liability, Regulation, Resources - Federal Agencies, Travel, Vehicles | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Crisis Prevention and Toyota's Corporate Culture

The Economist suggests a connection between Toyota's continuing manufacturing problems and a corporate culture that fails to raise problems because it is overly deferential.  I have separately heard that Asian airplane co-pilots have had to be specifically trained to overcome their traditional cultural deference and challenge the actions of pilots, if warranted, in emergency situations.  Here's an excerpt from article:

Toyota’s problems are its alone, but they highlight broader failings in Japanese corporate governance that make large companies particularly vulnerable to mishandling a crisis in this way. Such firms typically have a rigid system of seniority and hierarchy in which people are reluctant to pass bad news up the chain, thus keeping information from those who need to hear it in a misguided effort to protect them from losing face. In many firms, including Toyota, family ties make challenging the boss all but impossible. Any attempt to short-circuit the hierarchy is deemed an act of disloyalty and a violation of the traditional consensual corporate culture. Groupthink becomes entrenched because there is so little mobility between companies: hiring from outside is thought to disrupt a firm’s internal harmony, and an executive willing to move will be stained as a disloyal “job-hopper”. This further hinders firms’ ability to take bold, decisive action. The preference for harmony crowds out alternative viewpoints.


February 14, 2010 in Products Liability, Travel, Vehicles | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 9, 2010

Class Actions Against Toyota