Friday, September 27, 2013
Don Gifford & Bill Reynolds (Maryland) have published in the North Carolina Law Review Addendum The Supreme Court, CAFA, and Parens Patriae Actions: Will it Be Principles or Biases?. The abstract provides:
The Supreme Court will hear a case during its 2013-2014 term that will test the principles of both its conservative and the liberal wings. In Mississippi ex rel. Hood v. AU Optronics Corp., Justices from each wing of the Court will be forced to choose between the modes of statutory interpretation they usually have favored in the past and their previously displayed pro-business or anti-business predispositions. The issue is whether the defendant-manufacturers can remove an action brought by a state attorney general suing as parens patriae to federal court. Beginning with their actions against tobacco manufacturers in the mid-1990s, state attorneys general often sued as parens patriae in litigation of nationwide significance. In Hood, the Supreme Court considers whether mass plaintiffs’ attorneys, by partnering with state attorneys general in parens patriae actions, will be able to circumvent the requirements of the Class Action Fairness Act that allow defendants to remove class actions and other forms of mass actions to the typically more defendant-friendly confines of federal courts. Resolution will turn on the Court’s interpretation of the statutory term “mass action.” A textualist interpretation, usually favored by Justice Scalia and his conservative colleagues, would not allow such removal—a decidedly anti-business result. At the same time, a purposive approach to interpreting the statutory provision, promoted by Justice Breyer, possibly would allow such removal. For each group of Justices, the conflict is clear: Will they follow their previously articulated principles of statutory interpretation or their ideological biases?
Tuesday, September 24, 2013
Laura Hines (Kansas) has posted to SSRN The Unruly Class Action. The abstract provides:
This article examines the modern “issue class action” and its tenacious existence in a hostile class action landscape. I contend that this unauthorized, unbounded device is on a collision course with decades of Supreme Court jurisprudence narrowly interpreting the federal class action rule. Rather than either suffering such an ignoble fate or continuing to stumble forward as an evolving judicial creation, I advocate instead a robust vetting and evaluative process through formal rulemaking channels.
The issue class action derives from Rule 23(c)(4), which has steadily emerged from a position of near obscurity in the federal class action rule to a widely embraced alternative to the classic (b)(3) damages class action. This approach – authorizing a class action comprised solely of issues common to the class and excluding from that action adjudication of any issues requiring individual consideration – effectively eliminates one of (b)(3)’s two defining requirements, that common issues predominate over individual issues. The Supreme Court’s recent class action decisions have underscored the Court’s consistently constrained reading of Rule 23, particularly with regard to lower court innovative efforts to bypass (b)(3)’s predominance requirement.
In my view, the wide-ranging implications of the issue class action can best be evaluated through an open process of formal rulemaking that includes consideration of recent judicial experimentation, Supreme Court precedent, the input of scholars, practitioners, judges, and other interested parties. Only through such a robust inquiry could we determine whether the issue class action furthers the goals of Rule 23 and, if so, how to amend Rule 23 to accommodate this novel class action in order to reduce its risks and optimize its potential rewards.
Monday, September 2, 2013
David Weinstein and Christoper Torres (Greenberg Traurig) have written an article surveying the use of Lone Pine orders, a case management tool used in mass tort cases. In the article, "[t]he authors have compiled a table of decisions or orders issued in 83 cases, (see pages 4 through 7), which are categorized by case name, basic case type, jurisdiction, whether a Lone Pine order was entered, and, if so, whether it was enforced."
A copy of the article can be downloaded here.
Tuesday, August 20, 2013
Thursday, June 13, 2013
Keith Hylton (Boston University) has posted to SSRN The Economics of Class Actions and Class Action Waivers. The abstract provides:
Class action litigation has generated a series of recent Supreme Court decisions imposing greater federal court supervision over the prosecution of collective injury claims. This group of cases raises the question whether class action waivers should be permitted on policy grounds. I examine the economics of class actions and waivers in this paper. I distinguish between the standard one-on-one litigation environment and the class action environment. In the standard environment, waivers between informed agents enhance society’s welfare. In the class action environment, in contrast, not all waivers are likely to enhance
Wednesday, June 5, 2013
Video of the panels from the April 16 symposium on Mass Tort Litigation is now available.
Panel 1; Mass Tort Theory: Deborah Hensler (Stanford), Linda Mullenix (Texas), Mike Green (Wake Forest), and Aaron Twerski (Brooklyn)
Panel 2; Emerging Issues in Mass Tort Practice: Hon. Thurbert Baker (McKenna Long & Aldridge), John Beisner (Skadden Arps), Tobias Millrood (Pogust Braslow & Millrood), and Victor Schwartz (Shook Hardy & Bacon)
Distinguished Address: Hon. Eduardo Robreno (E.D. Pa.); Federal Asbestos Litigation: Black Hole or New Paradigm?
Panel 3; Keystone State Civil Justice Issues: Nancy Winkler (Eisenberg Rothweiler Winkler Eisenberg & Jeck), Nicholas Vari (K&L Gates), Mark Behrens (Shook Hardy & Bacon), and Scott Cooper (Schmidt Kramer)
Panel 4; Asbestos-Related Bankruptcy Issues: Todd Brown (Buffalo), Bruce Mattock (Goldberg Persky & White), and WIlliam Shelley (Gordon & Rees)
Panel 5; Mass Tort Ethics: Sheila Scheuerman (Charleston) and Byron Stier (Southwestern)
Friday, May 24, 2013
Howard Erichson and Ben Zipursky of Fordham recently chaired a symposium on "Lawyering for Groups." Participants included Beth Burch, Kristen Carpenter, Sam Issacharoff, Alexandra Lahav, Troy McKenzie, Nancy Moore, and Eli Wald. The papers are available at Mass Tort Lit Blog.
Wednesday, April 24, 2013
Linda Mullenix (Texas) has posted to SSRN The Practice: Class Action Cacophony at the Supreme Court. The abstract provides:
Commentary and analysis of the Supreme Court’s February and March 2013, decisions in three major class action appeals: Amgen Inc. v. Connecticut Retirement Plan and Trust Funds (February 27, 2103); Standard Fire Ins. Co. v. Knowles (March 19, 2013), and Comcast Corp. v. Behrends (March 27, 2013). The article surveys the Court’s liberal and conservative divide on class certification issues, giving some support to both the plaintiff and defense sides of the class action docket. In Amgen, in an opinion by Justice Ginsburg, a divided Court again saved the fraud on the market presumption for certification of securities class actions. On the other hand, in Comcast, in an opinion authored by Justice Scalia, an equally divided Court found fatal to class certification the failure of proof of classwide damages for a Rule 23(b)(3) damage action. The Comcast decision, coupled with a concurrence by Justice Alito, suggests that there may be at least four votes for the Court to consider the original fraud on the market presumption announced in the landmark case, Basic v. Levinson.
Although embodying different outcomes, the Amgen and Comcast decisions both embrace the same litany of core class certification principles. However, the Court in neither case has clarified or illuminated further the debate over the extent to which trial courts may properly assess the underlying merits of class claims as part of the certification process. Instead, the Court in both cases deflected the merits conversation into the Rule 23 predominance requirement.
Finally, in Standard Fire Ins. Co. v. Knowles, in an opinion by Justice Breyer, a unanimous Court agreed that a class representative could not stipulate to less than the $5 million damage threshold in order to evade removal under the Class Action Fairness Act of 2005. A class representative could bind himself, but had no power or authority to bind absent class members.
Tuesday, March 12, 2013
A front page article in yesterday's Wall Street Journal reported on a WSJ investigation into the state of asbestos litigation. The article, "Asbestos Claims Rise, So Do Worries About Fraud," is behind a pay wall. In part, the article reports:
The Wall Street Journal reviewed trust claims and court cases of roughly 850,000 people filed since the late 1980s until as recently as 2012.
The analysis found numerous apparent anomalies: More than 2,000 applicants to the Manville trust said they were exposed to asbestos working in industrial jobs before they were 12 years old.
Hundreds of others claimed to have the most-severe form of asbestos-related cancer in paperwork filed to Manville but said they had lesser cancers to other trusts or in court cases.
The Manville trust declined to comment on individual cases, citing privacy concerns. The trust's general counsel, David Austern, said the trust tightened its oversight after a 2005 claims scandal, adding: "We audit periodically and haven't found any fraud."
Accompanying the article is a neat graphic showing the connections between various law firms and the asbestos bankruptcy trusts.
Monday, February 18, 2013
Claims regarding the meningitis outbreak tied to injectable steroids has been consolidated in a MDL before Judge F. Dennis Saylor of the District of Massachusetts. The National Law Journal has the full story (behind a free registration wall).
Thanks to Lisa Smith-Butler for the alert.
Tuesday, February 12, 2013
The Pennsylvania Record reports that rules changes to the mass torts program at the Philadelphia Court of Common Pleas have resulted in a 70% drop in mass tort filings.
Monday, October 1, 2012
Forthcoming in the December issue of Enterprise & Society, Rachel Maines (Cornell School of Electrical and Computer Engineering) has an article on "The Asbestos Litigation Master Narrative: Building Codes, Engineering Standards, and "Retroactive Inculpation." You can download a pdf of the article here: Download Maines Asbestos Litigation Master Narrative 2012
Tuesday, September 25, 2012
The Wall Street Journal reports that mass tort filings in the Philadelphia Court of Common Pleas have "skyrocketed from 550 in 2008 to nearly 2,700 last year. The surge left an already busy court system buried in lawsuits and scrambling to repair the damage." The article reports:
Also contributing to the surge of cases: the success of the Complex Litigation Center, a specialized Philadelphia court established in 1992 largely to handle the growing asbestos and pharmaceutical docket. The center adopted techniques that were designed to move cases through quickly, such as setting early trial dates, holding frequent meetings among the lawyers, and consolidating similar cases.
The Complex Litigation Center drew more mass-tort cases to Philadelphia. But until recently, it was largely able to manage its docket. Since 2008, the backlog of asbestos and pharmaceutical cases has shot up from about 2,600 to more than 6,100 through last month. Last year, 88% of the pharmaceutical cases were filed by out-of-state plaintiffs, according to the court.
The mess is now largely Judge Herron's to deal with. Since taking over as the administrative judge late last year, he has put into place several measures designed to reverse the trend—and to send a message to out-of-state lawyers to take their lawsuits to other courts. "Go elsewhere," he says, when asked to describe the message he is hoping to send to out-of-state lawyers. "There are a lot of really wonderful courts in the U.S., and you should make broader use of them."
Monday, June 18, 2012
The Recorder (via law.com) reports that:
Apple Inc. will face a proposed class action accusing the company of letting advertisers track users' activity without their permission, a federal judge ordered Tuesday.
Owners of Apple devices, including the iPhone, iPad and iPod Touch, may pursue claims under two California consumer protection laws, U.S. District Judge Lucy Koh said.
Friday, June 8, 2012
Plaintiffs have filed a master complaint in the MDL concerning the NFL concussion litigation. The complaint was filed in the U.S. District Court for the Eastern District of Pennsylvania, and consolidates 86 suits involving 2,300 retired players.
Update: BBC News also has coverage.
Wednesday, May 23, 2012
The Recorder reports that Facebook has settled a putative class action that alleged that Facebook's "Sponsored Stories" feature violated the right to publicity under California law. According to the story, " 'Sponsored Stories' are paid advertisements that appear on someone's Facebook page when a friend "likes" an advertiser, complete with that person's name and photograph." As a putative class action, the settlement requires judicial approval.
Tuesday, May 15, 2012
U.S. District Judge Jose Linares (NJ) consolidated five separate putative class actions against Gerber last week. The suits allege that Gerber misrepresented the benefits of its probiotic baby food. New Jersey Law Journal has more behind a free registration wall.
Monday, May 7, 2012
Judge Barbier rejected numerous objections and gave preliminary approval to the BP Settlement last week. The settlement is estimated by BP to be worth $7.8 billion. Notably, as part of the agreement, BP is going to pay the attorneys' fees and costs of the plaintiffs' steeting committee. (Of course, plaintiffs remain responsibile for their own individual attorney's fees). The Court Supervised Settlement Program is scheduled to begin June 4th. Louisiana lawyer Patrick Juneau will be handling the economic damages payments, and the Garretson Resolution Group will be handling the medical claims.
Friday, April 27, 2012
Behind a free registration wall, the National Law Journal reports that Judge Selna has "tentatively dismissed" the economic damages claims of Florida and New York consumers in the sudden acceleration litigation on the ground that they had not actually experieced any SUA problems.
Thursday, March 1, 2012
As I mentioned yesterday, kudos to the students of the Federal Courts Law Review here at the Charleston School of Law for the Mass Torts in the Federal Courts symposium last week. In addition to the keynote address by Ken Feinberg and remarks by Judge Corodemus, the day included three lively panel presentations.
Panel One focused on Preemption. Moderated by my colleague, Bill Janssen, the panel featured (left to right) Jim Beck (Drug & Device Blog/Dechert), Deepak Gupta (Senior Counsel, Consumer Financial Protection Bureau), and Cathy Sharkey (NYU). Beck focused on the presumption against preemption and pointed out the Supreme Court's inconsistency on the doctrine. Beck termed the presumption a "judicial football," and noted that Justice Kennedy holds the "key vote" on the issue. Gupta provided a consumer protection viewpoint, and noted that agencies rely on the tort system to supplement and inform the agency's work. Sharkey pointed out the "absurdity" of the Court's rulings in Wyeth v. Levine and Pliva v. Mensing: If you take the generic version of a drug, preemption applies, but if you take the brand name version of the same drug, preemption does not apply. Sharkey advocated a new framework for the Court to view the preemption question focusing on agency consideration: whether the governing agency has paid particular attention to the risk of the plaintiff's injury should control the premption question.
I moderated Panel Two on "Aggregation and Mass Torts." Sheila Birnbaum is speaking in the photo, while seated left to right are myself, Timothy Eble, Alexandra Lahav (Connecticut) and Linda Mullenix (Texas). Eble and Lahav focused on the current litigation system, while Mullenix and Birnbaum addressed the fund approach. Eble focused on settlement class actions and presented a case study involving a medical monitoring settlement class action. He argued that the settlement class is an appropriate use of Rule 23. Lahav discussed the tension between individualism and efficiency in the debate over how to adjudicate mass torts, and asserted that a third value was missing from this discussion: equality. Responding to Ken Feinberg, Mullenix argued that the fund approach is not "sui generis," but increasingly the chosen method for resolving mass torts. Her presentation focused on the voluntariness of a plaintiff's election of remedies under a fund system, and suggested three solutions to combat what she argued was uninformed consent. Her solutions included provision of pro bono counsel to fund claimants, bar association counseling of fund claimants, and judicial invalidation of fund award's based on lack of informed consent. Birnbaum agreed that we are "going to have lots and lots of funds." In response to Mullenix, Birnbaum pointed out that most of the 9/11 claimants had counsel and discussed her work with the 9/11 litigants as well as with the new 9/11 Fund claimants. Birnbaum asserted that the fund approach can provide "more justice" than litigation and criticized the expense and delay involved in the tort system.
The final panel considered Ethical Issues Surrounding Fees and Settlements in Mass Torts. Nathan Crystal (Charleston) moderated the panel, with presentations by (left to right) Lynn Baker (Texas), Beth Burke (Richardson Patrick), John Beisner (Skadden), and Morris Ratner (Visting, Harvard/Professor-Elect, UC Hastings). Burke discussed aggregate settlements under Model Rule of Professional Responsibility 1.8, and the use of a point-based allocation system as opposed to a dollar-based system. Ratner addressed a new phenomena - trial courts relying on the ethical rules to impose caps on attorneys' fees in non-class settlements. He argued that the ethics rules do not provide the right guidance to fill this procedural gap, and further that incorporating the ethical rules in this fashion imposed a cost on the system. Beisner proposed that the ethics rules should be strengthened to better address conflicts of interest at the outset of mass tort litigation. In response to Ratner, Beisner suggested that courts felt a need to do something about fees that were perceived to be too high. Finally, Baker also considered the trend of judges imposing caps on fees in non-class actions, and asked whether the plaintiffs' attorney ethically may challenge the cap where the court sua sponte has now created a conflict of interest between the attorney and her client.
My thanks to all the participants for a wonderful conference.