Wednesday, January 3, 2007
Did I say anarchy? I meant "scholarly discussions."
I spent most of today at a session on "Remedies: Justice and the Bottom Line," in particular sessions on "Aggregate Litigation: Time to Address Remedies" (with Elizabeth Cabraser of Lieff Cabraser and Sam Issacharoff of NYU) and "The Political and Policy Debate Over Tort Remedies" (with Cathy Sharkey of Columbia, Deborah Hensler of Stanford, Keith Hylton of BU, and Olivier Moreteau of LSU).
Things that caught my eye enough to write them down:
Sam Isaacharoff provided his top ten remedy issues related to aggregate litigation, based in part on his work as reporter for the ALI's efforts on aggregate litigation. Here's my list of them, with an emphasis that I may have specifics incorrect - I didn't get a copy of his presentation.
1. Contractual waiver of class action membership, often joined with arbitration clauses. He referred to this as the “dark side of ADR.”
2. In what he called the "good side of ADR," he discussed a Second Circuit case, In re Nassau County Strip Search. In a case where the county apparently allowed semi-public strip searches of prisoners, the county stipulated liability but said, cleverly, that the stipulation knocked out potential class claim – because all that was left was damages, which were individual by their nature. That stipulation, according to the county, necessarily knocked out the necessity of class notice. The Second Circuit disagreed, allowing a class notice, implying that they assumed there would be a semi-class-based ADR worked out in the future, justifying the class notification process.
3. Issue classes. In particular, the issue of what happens to merits evaluations when a class is decertified later.
4. Relationship between class action as litigation-inducing mechanism and statutory liquidated damages as litigation-inducing mechanism. Combining classes and presumed or liquidated damages can cause troubles. Both are set up to encourage litigation even in low-value cases, but if you combine them, you end up getting too-large damages, from an incentives perspective.
5. Cy pres & fluid remedies, with a cottage industry developing of nonprofits seeking a chunk of damages even when completely unrelated.
6. Mass cases where the only evidence is epidemiological where it is clear that some increased number of people suffered a particular harm due to exposure to the product, but when individual causation is impossible. Various proposals, including allowing damages to be discounted by the percentage likelihood that the particular harm was caused by the product. That obviously runs straight into the tradition of individualized causation proof and litigation.
7. Collateral attack – what is the scope of challenge to a final settlement? The issue here, obviously, is getting finality for litigants.
8. Increased use of MDL class-like mechanisms (e.g., Wienstein in Zyprexa).
9. CAFA, setting up funny role for state courts as a place to park collusive settlements.
10. Aggregate settlement rule, based on ABA model rules, which provides that client must have right to approve any settlement at any time, and that client can give right to negotiate, but can never be irrevocable. Causes trouble for mass settlements due to holdouts. Suggestion was to allow more of that to be contracted for at the start of representation, as a tradeoff for the increased value of having a firm who has lots of the same type of case.
The remedies reform session was also really interesting but harder to summarize. I missed the first part (where Hensler spoke). Much of the rest of the discussion -- in particular Hylton's discussion -- focused on the law & economics aspects of punitive damages, addressing the Williams case in particular. If I can make sense of my notes, I'll try to write more on it later.
(Thanks to West for the lunch for network bloggers!)