Thursday, August 29, 2019
If you're interested in mass litigation--either through class actions or multi-district litigation--you undoubtedly know that the area can be overwhelmingly and mind-numbingly complex. Mass Tort Deals by Elizabeth Chamblee Burch cuts through with simple language and accessible stories to help frame the key policy issues. So far, I'm through the first chapter and have some thoughts.
The book frames the key issues well--how do we balance competing interests and resolve mass tort disputes. And there are plenty of interests sitting in tension with each other: judicial economy, efficiency, judicial desires for novelty and importance, plaintiffs' counsel fees, lead plaintiff counsel fees, defense interests in global resolution, and more. How we set the procedures up for these cases effectively controls how these cases will be resolved. If judges lock less cooperative litigants out and limit access to discovery or other information, it essentially forces them to come to the table and play ball with the court's chosen lawyers for a case.
From someone who has studied the class action context closely, one of the most surprising things to me about norms in the non-class mass tort space has been that the leadership arrangements seemingly operate as a lawless scrum. There are no clear rules for how to set up a mass action governance structure for moving these claims through pre-trial proceedings. This sets the stage for all sorts of jockeying by lawyers. Even the lawyers courts appoint as lead counsel cannot keep control:
Lead counsel negotiate settlements and dictate trial strategy, but few rules govern this undemocratic process. For example, Judge Susan Wigenton appointed a five-member plaintiffs' liaison counsel . . . to head lawsuits against Zimmer over its poorly designed Durom hip cup. Yet, Chris Seeger, one of those five members, quietly joined forces with nonlead lawyer Mark Lanier. Without the other counsel's members' knowledge or consent, Lanier and Seeger hashed out a global deal with Zimmer, which they signed on behalf of something they dubbed, the 'claimants' liaison counsel.' Judge Wigenton 'approved' their private deal over the real liaison counsel's objections. Seeger later suggested that instituting rules 'would take the fun out of mass torts.'
This is wild! I can see how it would be fun to steal the initiative from the other plaintiffs' lawyers and just forge the deal you think right if they don't agree with you. But you have to wonder about who really benefits from this dynamic? Defense counsel certainly has an incentive to strike a deal with a wildcat if it will give better terms to the corporation. This risks leaving money on the table for the plaintiffs.
Burch's book isn't without detractors. As I read the above paragraph, I recalled something I'd seen when I bought the book off Amazon. One reader thought the book was terrible.
You have to wonder if it's the same guy.