Saturday, June 25, 2016

New Book on Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation

A new book, Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation, has been published by Edward Elgar Publishing (also available on Amazon).  The editors of the book are Associate Dean Deborah Hensler (Stanford Law) and Professors Christopher Hodges (Oxford) and Ianika Tzankova (Tilburg Law).  A global group of aggregate-litigation scholars contributed to the book, including Dean Camille Cameron (Dalhousie Law, Canada); Associate Dean Manuel Gomez (Florida International Law); Professors Agustin Barroilhet (U. Chile Law), Naomi Creutzfeldt (Research Fellow, Oxford), Axel Halfmeier (Leuphana U., Germany), Kuo-Chang Huang (Member, Taiwan national congress and formerly of National Cheng-Chi U., Taiwan), Jasminka Kalajdzic (Windsor Law, Canada), Alon Klement (Tel-Aviv U., Israel), Elizabeth Thornburg (SMU Law), and Stefaan Voet (U. Leuven & U. Hasselt, Belgium); and myself.  

I authored a chapter, The promise and peril of media and culture: The Toyota unintended acceleration litigation and the Gulf Coast Claims Facility in the United States, and Professor Ianika Tzankova and I co-authored another chapter, The culture of collective litigation: A comparative analysis.    

The book was a remarkable and fascinating undertaking, with many of us contributors gathering at several conferences across the globe over recent years to discuss and compare our ongoing research.  Here is a brief description of the book:

In recent years collective litigation procedures have spread across the globe, accompanied by hot controversy and normative debate. Yet virtually nothing is known about how these procedures operate in practice. Based on extensive documentary and interview research, this volume presents the results of the first comparative investigation of class actions and group litigation ‘in action’.

Produced by a multinational team of legal scholars, this book spans research from ten different countries in the Americas, Europe, Asia and the Middle East, including common law and civil law jurisdictions. The contributors conclude that to understand how class actions work in practice, one needs to know the cultural factors that shape claiming, the financial arrangements that enable or impede litigation and how political actors react when mass claims erupt. Substantive law and procedural rules matter, but culture, economics and politics matter at least as much.

This book will be of interest to students and scholars of law, business and politics. It will also be of use to public policy makers looking to respond to mass claims; financial analysts looking to understand the potential impact of new legal instruments; and global lawyers who litigate transnationally.

We are honored that Professor Geoffrey Hazard (Emeritus, UC Hastings Law & Penn Law) offered the following comment on the book:

Class Actions in Context is a penetrating analysis of class and group actions worldwide. A group of international scholars brings to bear legal, economic, and political analyses of this evolving judicial remedy. It explores various substantive claims ranging from consumer protection to securities litigation. Drawing on case studies of practice as well as legal analysis, it demonstrates the importance of factors running from litigation finance to background cultural traditions. It is worth study in every legal system.

 

June 25, 2016 in Aggregate Litigation Procedures, Class Actions, Environmental Torts, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Travel, Vehicles | Permalink | Comments (0)

Thursday, March 31, 2016

Plaintiffs Lose Second GM Ignition Switch Trial

You can find the report by Erik Larson & Patricia Hurtado on Bloomberg here.  Bill Vlasic at the New York Times also has a piece on the win for GM.

This case involved a crash on an icy bridge in New Orleans during a rare ice storm in that part of the country.  The plaintiffs suffered minor injuries.

The jury found the accident was caused by the ice storm, not the defect.  It did, however, also find that the car was "unreasonably dangerous."  With respect to that determination, Prof. Carl Tobias (Richmond) is quoted in the Bloomberg article saying: “The plaintiffs can claim a victory at least insofar as the jury made that finding, which is a critical finding.  Every case will be on its own merits, but I think they can claim that as an important development.”  

It looks like one can find documents relating to the case here.   The next case to go to trial is Yingling v. GM, which was the subject of the dispute earlier this year.

March 31, 2016 in Aggregate Litigation Procedures, Products Liability, Vehicles | Permalink | Comments (0)

Tuesday, February 2, 2016

GM Bellwether Trial - Developments

Some more news coverage of the GM Bellwethers and the allegations made against the lead lawyer.

An interview with Robert Hilliard can be found here: Amanda Bronstad, Plaintiffs Lawyer Hilliard Saw No Red Flags in Case, National Law Journal, Feb. 1, 2016. 

Amanda Bronstad, Lawyer Claims GM Bellwether Counsel Cut Sweetheart Deal with Automaker, National Law Journal, Jan. 28, 2016. 

Sara Ranzaddo & Mike Spector, GM, Plaintiffs Lawyers Dispute Misconduct Allegations in Ignition Switch Cases, Wall Street Journal, Feb. 2, 2016. 

February 2, 2016 in Aggregate Litigation Procedures, Products Liability, Vehicles | Permalink | Comments (0)

Tuesday, January 26, 2016

GM Ignition Switch Litigation Bellwethers

Lance Cooper, a lawyer with ignition switch cases against GM, has made a motion to remove the MDL plaintiffs counsel in the ignition switch litigation.  You can find some coverage by Sara Randazzo & Mike Spector at the Wall Street Journal. (I haven't seen the motion). 

The first lawsuit to proceed to trial - of a total of six, three picked by plaintiffs, three by defendants - has ended with a dismissal with prejudice under a cloud of allegations of fraud.  What does this say about bellwethers?

I think it says nothing about the underlying cases, or not very much.  (It does tell you something about lawyer error, but that's a topic for another day).  However, the recent events at trial do show that the way bellwether trials are structured is deeply flawed.  If the cases tried are going to be meaningful, they should be randomly selected and the number of trials should be related to the variation in the underlying group of cases.  If there is a high variation, you will need more trials to tell you much about the underlying run of cases.  A number that is convenient (six, for example) is just that, convenient, but convenience should not be confused with meaningful.  Now a lot is riding on this case because one would imagine, since plaintiffs picked it and they only get three, its a really good case for plaintiffs.  So a skewed sample can tell you something - but what it ends up telling you is more about the lawyers than the underlying run of cases. 

To understand this, imagine you have a jar full of marbles.  If you know all the marbles are the same color, you can just pick one marble out of the jar to find out what the color of all the marbles is.  But if the marbles are of various colors picking one marble is not enough.  If you have a sense of the distribution of colors in the jar - say you know that there are some black and some red marbles - you can calculate how many marbles to pick out so that you will have a pretty good estimate of the proportion of red to black.   The same with cases.  If your cases are homogeneous, you can just try a few to get a sense of their value.  The more heterogeneity, the greater the number of cases that need to be tried.  This was the basis for Francis McGovern's idea of maturation of mass torts - you try lots of cases, and over time a value emerges.  It was also the basis for the structure of bellwether trials in the 9/11 First Responders' Litigation.  

Of course, its easy for me to say this. I am not running an MDL and I don't have to pay for all those trials, which are expensive. But that said, if you want to get a sample that could mean something, the sample size needs to be related to the variance of the underlying class and the method of selection needs to be random.  That's basic statistical methods.  I think that MDL judges need to partner with statisticians and have a serious conversation about what bellwether trials are trying to achieve and how best to do this.  Judges have a lot of discretion and they can use it wisely to lead to fair and equitable results for everyone. There are ways to do better, we just need to find them.  

January 26, 2016 in 9/11, Aggregate Litigation Procedures, Trial, Vehicles | Permalink | Comments (0)

Thursday, January 21, 2016

GM Ignition Switch Bellwethers

Thursday, December 17, 2015

Feinberg to head VW Compensation Fund

Now that we know where the VW MDL will go (Northern District of California - cue if you're going to San Francisco...) and that Judge Charles Breyer will be in charge, VW has announced that Ken Feinberg will run their claims administration program.  You can find Danielle Ivory's New York Times article about the announcement here

As this Wall Street Journal article by Sara Randazzo points out, the highest concentration of affected cars (but not the highest concentration of cases) is in California.  But there were lots of reasons (which she lists) to pick other locations.

There are a number of ways that Feinberg can help resolve this litigation, but one very important question is how his work will interrelate with that of the many powerful plaintiffs firms now involved.  There are lots of ways to calculate the damages here that would seem fair, such as for example predicting based on past driving habits a given driver's likely use of the car and paying for the difference in gas mileage (since the cars complying with emissions standards will have lower gas mileage than promised), or calculating the value of the car on the secondary market and paying the difference of what it would have been worth had the representation been accurate (the "Edmonds/Kelly Bluebook approach").  It will be interesting to see what Feinberg does.

 

 

December 17, 2015 in Aggregate Litigation Procedures, Vehicles | Permalink | Comments (0)

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 (1) | 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.

ADL

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.

BGS

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."

BGS

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.

ECB

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.

BGS

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.

BGS

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.


BGS

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

ADL

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