Thursday, June 3, 2010
Aaron Twerski (Brooklyn) & James Henderson (Cornell) have posted to SSRN Reaching Equilibrium in Tobacco Litigation. The abstract provides:
Recent pro-plaintiff developments in tobacco litigation may lead to the conclusion that such litigation will go on endlessly and threaten the financial viability of the tobacco industry. This article takes the opposite position. Although the industry may take some near-term losses, it is far more likely that tobacco companies will survive short-term losses and that tobacco litigation will reach a stable equilibrium within the next fifteen to twenty years. The threat of third-party payer claims is no longer viable. Courts have unanimously rejected them. With the exception of cases pending in Florida and West Virginia, there are few individual personal injury claims pending throughout the United States. Both the Florida and West Virginia trial plans are subject to serious constitutional challenge. Two possible serious threats to the tobacco industry remain – punitive damage awards and cases for economic loss based on fraudulent marketing of light cigarettes. The former are likely to come under serious constitutional scrutiny and the latter cases are viable only as class actions. Under the Class Action Fairness Act (CAFA), new cases will end up in federal courts which have been hostile to class certification in cigarette litigation. The relatively few pre-CAFA class actions that have been certified in state courts will have to grapple with difficult issues in attempting to assess damages.