Tuesday, July 28, 2020
The Sixth Circuit will hear oral argument this morning (9:00 am EDT) in the Opioid MDL (In re: Nat’l Prescription Opiate Litigation, No. 19-4097 & 19-4099).
You can listen live to the audio at this link. Sitting on the panel are Judges Moore, Clay, and McKeague.
Friday, June 5, 2020
Today the Lewis & Clark Law Review posted the symposium issue, featuring contributions by Jennie Anderson; Bob Klonoff; Teddy Rave & Zach Clopton; Dave Marcus; David Noll; Lynn Baker & Steve Herman; Josh Davis & Brian Devine; Alexi Lahav; Elizabeth Cabraser & Adam Steinman; Bob Bone; Gerson Smoger; Judith Resnik, Stephanie Garlock & Annie Wang; Brian Fitzpatrick; and Arthur Miller.
My personal thanks to the Pound Institute, Lewis & Clark, and Bob Klonoff for organizing a wonderful symposium, and to the law review editors for their excellent editorial work. It’s great to see the finished product!
Thursday, April 16, 2020
Yesterday a Sixth Circuit panel issued its decision in In re National Prescription Opiate Litigation, granting the pharmacy defendants’ petition for a writ of mandamus regarding the district court’s order allowing the counties to amend their complaints to add new claims in advance of an upcoming bellwether trial. Judge Kethledge’s opinion begins:
The rule of law applies in multidistrict litigation under 28 U.S.C. § 1407 just as it does in any individual case. Nothing in § 1407 provides any reason to conclude otherwise. Moreover, as the Supreme Court has made clear, every case in an MDL (other than cases for which there is a consolidated complaint) retains its individual character. That means an MDL court’s determination of the parties’ rights in an individual case must be based on the same legal rules that apply in other cases, as applied to the record in that case alone. Within the limits of those rules, of course, an MDL court has broad discretion to create efficiencies and avoid duplication—of both effort and expenditure—across cases within the MDL. What an MDL court may not do, however, is distort or disregard the rules of law applicable to each of those cases.
The rules at issue here are the Federal Rules of Civil Procedure, which have the same force of law that any statute does. The petitioners seek a writ of mandamus, on grounds that, in three instances, the district court has either disregarded or acted in flat contradiction to those Rules. We grant the writ.
Monday, December 9, 2019
We covered earlier the State of Arizona’s Bill of Complaint against the Sackler family and related entities arising from the opioid crisis. Arizona filed the bill in the U.S. Supreme Court this summer, invoking the Supreme Court’s original jurisdiction under 28 U.S.C. § 1251(b)(3).
Today’s Supreme Court order list contains a one-line denial of Arizona’s motion for leave to file the bill of complaint.
Monday, November 18, 2019
Pound Civil Justice Institute/Lewis & Clark Law School Symposium: "Class Actions, Mass Torts, and MDLs: The Next 50 Years"
Tuesday, September 3, 2019
Symposium: “Class Actions, Mass Torts, and MDLs: The Next 50 Years” (Lewis & Clark Law School, November 2019)
The Pound Civil Justice Institute and Lewis & Clark Law School are co-sponsoring a symposium entitled Class Actions, Mass Torts, and MDLs: The Next 50 Years.
It will take place at Lewis & Clark Law School in Portland, Oregon on November 1 & 2, 2019.
You can register to attend the symposium here. It’s free for judges, law clerks, academics, law students, and public officials.
Thursday, March 7, 2019
Today on the Courts Law section of JOTWELL is Roger Michalski’s essay, A Primer on Opioid-Epidemic Litigation. Roger reviews a recent article by Abbe Gluck, Ashley Hall & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46 J.L. Med. & Ethics 351 (2018).
Wednesday, March 29, 2017
Nora Freeman Engstrom has posted on SSRN her article, Retaliatory RICO and the Puzzle of Fraudulent Claiming, 115 Mich. L. Rev. 639 (2017). Here’s the abstract:
Over the past century, the allegation that the tort liability system incentivizes legal extortion and is chock-full of fraudulent claims has dominated public discussion and prompted lawmakers to ever-more-creatively curtail individuals’ incentives and opportunities to seek redress. Unsatisfied with these conventional efforts, in recent years, at least a dozen corporate defendants have "discovered” a new fraud-fighting tool. They’ve started filing retaliatory RICO suits against plaintiffs and their lawyers and experts, alleging that the initiation of certain nonmeritorious litigation constitutes racketeering activity—while tort reform advocates have applauded these efforts and exhorted more “courageous” companies to follow suit.
Curiously, though, all of this has taken place against a virtual empirical void. Is the tort liability system actually brimming with fraudulent claims? No one knows. There has been no serious attempt to analyze when, how often, or under what conditions fraudulent claiming proliferates. Similarly, tort reformers support RICO’s use because, they say, conventional mechanisms to deter fraud fall short. But are conventional mechanisms insufficient? Hard to say, as there is no comprehensive inventory of the myriad formal and informal mechanisms already in use; nor do we have even a vague sense of how those mechanisms actually operate. Further, though courts have started to green-light retaliatory RICO actions, no one has carefully analyzed whether these suits are, on balance, beneficial. Indeed, few have so much as surfaced relevant risks. Addressing these questions, this Article attempts to bring overdue attention to a problem central to the tort system’s operation and integrity.
Friday, March 17, 2017
Adam Zimmerman has posted on SSRN a draft of his article, The Bellwether Settlement, which will appear in the Fordham Law Review. Here’s the abstract:
This Article examines the use of "bellwether settlements" in mass litigation. Bellwether settlements are different from “bellwether trials,” a practice where parties choose a representative sample of cases for trial to determine how to resolve a much larger number of similar cases. In bellwether settlements, the parties instead rely on a representative sample of mediations overseen by judges and court-appointed mediators.
The hope behind bellwether settlements is that different settlement outcomes, not trials, will offer the parties crucial building blocks to forge a comprehensive global resolution. In so doing, the process attempts to (1) yield important information about claims, remedies, and strategies that parties often would not share in preparation for a high-stakes trial; (2) avoid outlier or clustering verdicts that threaten a global resolution for all the claims; and (3) build trust among counsel in ways that do not usually occur until much later in the litigation process.
The embrace of such bellwether settlements raises new questions about the roles of the judge and jury in mass litigation.What do bellwether settlements even mean when the procedures and outcomes lack any connection with a jury trial? What function do courts serve when large cases push judges outside their traditional roles as adjudicators of adverse claims, supervisors of controlled fact-finding, and interpreters of law?
This Article argues that, as in other areas of aggregate litigation, courts can play a vital “information-forcing” role in bellwether settlement practice. Even in a system dominated by settlement, judges can help parties set ground rules, open lines of communication, and, in the process, make more reasoned trade-offs. In so doing, courts protect the procedural, substantive, and rule-of-law values that aggregate settlements may threaten.
Friday, March 10, 2017
We covered earlier several bills that could make significant changes to federal civil procedure. Two of these passed the House of Representatives yesterday.
- H.R. 725 (the Innocent Party Protection Act) passed by a vote of 224–194.
- H.R. 985 (the Fairness in Class Action Litigation Act) passed by a vote of 220-201-1.
Stay tuned. Getting to 60 votes in the Senate will be a more difficult proposition.
Thursday, March 2, 2017
The House of Representatives Committee on Rules has announced that it will meet the week of March 6 “to grant a rule that may provide a structured amendment process for floor consideration of” H.R. 720 (amendments to FRCP 11), H.R. 725 (on so-called “fraudulent” joinder), and H.R. 985 (on class actions and MDLs).
Hat tip: Adam Zimmerman
Wednesday, March 1, 2017
In addition to the six bills already reported here and here, House Republicans have also introduced H.R. 1118, the so-called “Innocent Sellers Fairness Act,” which would federalize the law of product liability by limiting liability for the sellers of a product. The bill is sponsored by Rep. Blake Farenthold (R-TX 27), Rep. John Duncan (R-TN 2), and Rep. Lamar Smith (R-TX 21).
The operative provisions of the bill provide:
(a) In general
No seller of any product shall be liable for personal injury, monetary loss, or damage to property arising out of an accident or transaction involving such product, unless the claimant proves one or more of the following activities by the seller:
(1) The seller was the manufacturer of the product.
(2) The seller participated in the design of the product.
(3) The seller participated in the installation of the product.
(4) The seller altered, modified, or expressly warranted the product in a manner not authorized by the manufacturer.
(5) The seller had actual knowledge of the defect in the product as a result of a recall from the manufacturer or governmental entity authorized to make such recall or actual inspection at the time the seller sold the product to the claimant.
(6) The seller had actual knowledge of the defect in the product at the time the seller supplied the product.
(7) The seller intentionally altered or modified a product warranty, warning or instruction from the manufacturer in a way not authorized by the manufacturer.
(8) The seller knowingly made a false representation about an aspect of the product not authorized by the manufacturer.
(b) Liability of seller in cases of negligence
If the claimant proves one or more of the activities described in subsection (a) and such activity was negligent, the seller’s liability is limited to the personal injury, monetary loss, or damage to property, directly caused by such activity.
These provisions resemble Section 8 of the American Legislative Exchange Council's so-called “model policy” on product liability for state legislators to copy.
Unlike the other six bills, this one has not passed the House Judiciary Committee.
Friday, February 17, 2017
Five bills that would generally operate to favor corporate defendants in civil lawsuits have passed the House Judiciary Committee with blinding speed and have been referred to the full House:
Fairness in Class Action Litigation Act
Bob Goodlatte (R-VA-6)
Furthering Asbestos Claim Transparency (FACT) Act
Blake Farenthold (R-TX-27)
Stop Settlement Slush Funds Act
Bob Goodlatte (R-VA-6)
Innocent Party Protection Act
Ken Buck (R-CO-4)
Lawsuit Abuse Reduction Act
Lamar Smith (R-TX-21)
We briefly described four of the bills here. The bills are opposed by over 50 advocacy groups for civil rights, consumer protection, and environmental protection.
Monday, February 13, 2017
While Trump Distracts, Republicans Introduce Four Bills Restricting Ordinary Citizens’ Access to the Courts
Four bills have been introduced in Congress that would limit plaintiffs' access to the courts. The title of each bill is misleading, in that the effect of each bill would be very different from what its title indicates.
1. Probably the most far-ranging bill is the so-called "Fairness in Class Action Litigation Act of 2017," H.R. 985.
This bill would critically hobble class actions by making them much more difficult to certify and reducing the compensation to plaintiffs’ class action lawyers.
The major provisions of the bill with respect to class actions are (this is not an exhaustive list):
Sunday, January 10, 2016
On January 8, the House of Representatives passed the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2016. (The L.A. Times called the "fairness in class action" part of the title "Orwellian" and "shameless.")
For additional coverage of the bill, see our post from last Friday.
The bill goes to the Senate next for consideration.
Friday, January 8, 2016
The House of Representatives is close to taking up a bill (H.R. 1927) that some are calling the "Volkswagen bail-out bill" due to its stymieing effect on class actions. Another part of the bill, the Huffington Post charges, "would force the online disclosure of sensitive personal information of sick and dying asbestos victims seeking compensation for their illnesses."
When we last reported on this bill, it dealt only with class actions. That bill has now been amended and combined with another bill on asbestos claims, resulting in the "Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2015."
The latest draft of the portion of the bill on class actions reads as follows:
SEC. 2. FAIRNESS IN CLASS ACTION LITIGATION.
(a) IN GENERAL.—No Federal court shall certify any proposed class seeking monetary relief for personal injury or economic loss unless the party seeking to maintain such a class action affirmatively demonstrates that each proposed class member suffered the same type and scope of injury as the named class representative or representatives.
(b) CERTIFICATION ORDER.—An order issued under Rule 23(c)(1) of the Federal Rules of Civil Procedure that certifies a class seeking monetary relief for personal injury or economic loss shall include a determination, based on a rigorous analysis of the evidence presented, that the requirement in subsection (a) of this section is satisfied.
The House Judiciary Committee has issued House Report 114-328 on the class action portion of the bill. The Democrats opposing the bill stated in their dissenting views that the bill is “a solution in search of a problem” and “represents the latest attempt to shield corporate wrongdoers and deny plaintiffs access to justice.” They concluded:
H.R. 1927 is an unnecessary bill that threatens to deny millions of plaintiffs access to Federal courts by creating potentially insurmountable obstacles to class action certification and raising litigation costs. Moreover, it disrespects the Federal courts by imposing new burdens on them and by circumventing the congressionally created Rules Enabling Act process by which Federal civil procedure rules are amended after extensive input from the bench and bar.
Meanwhile, at the annual meeting of the Association of American Law Schools, members of the Advisory Committee on Civil Rules are scheduled to discuss potential class actions reforms today. I am not at the conference this year, and would be interested to learn if anyone mentions H.R. 1927 and how that bill might relate to proposals before the Advisory Committee.
The House yesterday passed a resolution limiting amendments to and debate on the bill.
Professor Alexandra D. Lahav testified against the bill last April.
Thursday, April 2, 2015
Now available on the Courts Law section of JOTWELL is an essay by Linda Mullenix entitled Into Litigation’s Black Hole: A Cosmic Solution. Linda reviews Judge Eduardo Robreno’s recent article, The Federal Asbestos Product Liablity Multidistrict Litigation (MDL-875): Black Hole Or New Paradigm?, 23 Widener L.J. 97 (2013).
Saturday, February 28, 2015
I wanted to post a quick blurb about my testimony yesterday before the Subcommittee on the Constitution and Civil Justice of the House Judiciary Committee in the hearing on The State of Class Actions Ten Years After the Class Action Fairness Act.
Here is the Prepared Statement I submitted 48 hours in advance of the hearing.
Not surprisingly given Republicans' control of the House, of the four witnesses testifying at the hearing, I was the only one offered by the Democrats. The others were representing the US Chamber, DRI-the Voice of the Defense Bar, and Skadden Arps.
Continuing the proud tradition of "tort reformers" in spinning corporations' huge legal victories as tragic defeats, one would have never known that Wal-Mart v. Dukes, AT&T Mobility v. Concepcion, and American Express v. Italian Colors (among many other corporate victories in the Supreme Court, the Advisory Committee, and state legislatures) had ever happened. Instead, listening to the Republican-sponsored witnesses and members of the Committee and Subcommittee, it seemed instead that democracy itself, and even the world economy, were threatened by legions of liberal federal judges granting class certifications in cases in which no class members had been injured. (Yes, the new urban myth of corporate interests is the so-called "no injury" class.)
As a former litigator, it was agony sitting there and not being able to object ("Mischaracterizes the evidence!" "Assumes facts not in evidence!" "Irrelevant!") to some of the things coming out of people's mouths.
It was also depressing to calculate how much I would have earned at the going hourly rate of an attorney with my background and experience in an urban market IF ANYONE HAD BEEN PAYING ME -- which of course, no one was. (My dear law school, St. Thomas, reimbursed my measly travel expenses.)
Somehow, I doubt that the other three witnesses were appearing pro bono.
But someone has to stand up for rights of injured, cheated, and discriminated-against Americans and the plaintiffs' lawyers who represent them. I am honored to have tried my best to do so.
Monday, December 8, 2014
Although I have only a passing familiarity with the incredibly convoluted BP litigation, I predicted this summer (but not publicly), when BP filed its petition, that the Court would deny cert. BP repeatedly attempted to undo a settlement agreement that it negotiated for a year and strongly advocated to be approved at the time, and the procedural posture of its cert petition was murky.
Based on a quick reading of the cert petition, it seemed to me that BP mischaracterized both the settlement agreement and the lower courts' orders so it could manufacture a claimed "circuit split." BP characterized the class as including people who suffered no damage traceable to Deepwater Horizon, but that didn't seem accurate to me. I think that under the settlement agreement (which is 1,000 pages long and I admittedly have not read it), the claimants have to file a form that certifies that they did suffer such damage. BP, which agreed to that in the settlement, later changed its mind and said that wasn't good enough proof.
In 2012 the Court also denied cert in the DB Investments (a/k/a De Beers Diamonds) antitrust class action, which was cited in BP's cert petition. Objectors to the De Beers settlement agreement urged a similar argument that some class members had no cognizable claim.
Sunday, August 17, 2014
Rhonda Wasserman (Pittsburgh) has posted on SSRN a draft of her article, Future Claimants and the Quest for Global Peace, which will appear in the Emory Law Journal. Here’s the abstract:
In the mass tort context, the defendant typically seeks to resolve all of the claims against it in one fell swoop. But the defendant’s interest in global peace is often unattainable in cases involving future claimants – those individuals who have already been exposed to a toxic material or defective product, but whose injuries have not yet manifested sufficiently to support a claim or motivate them to pursue it. The class action vehicle cannot be used because it is impossible to provide reasonable notice and adequate representation to future claimants. Likewise, non-class aggregate settlements cannot be deployed because future claimants will not have contacted attorneys whose participation is critical to those alternative methods of dispute resolution.
In lieu of class actions and non-class aggregate settlements, this Article proposes a hybrid public-private claims resolution process designed to provide many of the benefits of global peace, while preserving the constitutional rights of future claimants and ensuring them fair compensation as their injuries manifest. Under this proposal, defendants would secure judicial approval of a fair and reasonable class action settlement of the current claims and then, through an extra-judicial process, make fair offers on comparable terms to future claimants as their claims mature, adjusted to take into account the time value of money and intervening changes in legal doctrine and medical advances. Since the class action settlement would not purport to bind the future claimants, their constitutional rights would be protected. And even though the future claimants would not be bound by the class action judgment nor obligated to accept the fair offers on comparable terms, they would have an incentive to accept them, rather than sue in tort, because they would be assured fair compensation without incurring the costs of litigation.