Sunday, June 9, 2013

Class Settlement of Plumbing Fittings Products Liability Litigation Upheld

     These class actions (consolidated in an MDL in Minnesota) are notable for the whimsical names of their subclasses, the Soggy Plaintiffs and the Cloggy Plaintiffs.  The Eighth Circuit upheld the settlement of several class actions alleging damage caused by defective brass plumbing fittings sold by defendants Radiant and Uponor.  The Soggy Plaintiffs have already experienced leaking (in some cases causing severe damage) and the Cloggy Plaintiffs have not yet experienced leaks but have the same fittings.
     "The proposed settlement agreement stipulated that after two leaks, soggy plaintiffs would be entitled to have their entire plumbing system replaced at Uponor and Radiant's expense. Cloggy plaintiffs who had demonstrated 'by way of a flow test that a differential in water flow . . . of more than 50% [exists] between the hot and cold lines' would also be entitled to replacement of their brass fittings, and if that proved insufficient, to a new plumbing system."
     After notice of the proposed settlement had been sent, Ortega, a California resident, moved to intervene as of right.  His motion was denied as untimely.  He and 26 other class members then objected to the settlement, arguing that notice had been deficient, that the scope of the release of defendants was overbroad, and that the settlement did not account for a cause of action available under California law.  All of these arguments were rejected and the district court's approval of the settlement was upheld.  In re Uponor, Inc., F1807 Plumbing Fittings Products Liability Litigation, No. 12-2761 (8th Cir. June 7, 2013).

PM

 

June 9, 2013 in Class Actions, MDLs, Recent Decisions | Permalink | Comments (0)

Sunday, June 2, 2013

Twelve Asbestos Plaintiffs' Claims Dismissed Under Rule 41(b) for Noncompliance with Administrative Order

The Third Circuit has upheld the dismissal of twelve plaintiffs' claims in the Asbestos MDL for failure to comply with an administrative order requiring them to include specific histories of their exposure to asbestos.  The first paragraph of the opinion is:

This appeal comes to us from Multidistict Litigtion case number 875 ("MDL 875"), otherwise known as the "Asbestos MDL," involving asbestos cases from around the country, pending before Judge Robreno in the United States District Court for the Eastern District of Pennsylvania.  The District Court, overseeing several thousand asbestos cases, dismissed the claims of twelve Plaintiffs pursuant to Rule 41(b) of the Federal Rules of Civil Procedure based on non-compliance with the District Court's Administrative Order No. 12 ("AO 12").  Specifically, Judge Robreno determinated that the Plaintiffs' submissions were fatally flawed in that they failed to include specific histories of Plaintiffs' exposure to asbestos.  Plaintiffs contend on appeal, as they did in the District Court, that AO 12 did not impose this requirement, and urge, alternatively, that even if it did, under a proper balancing of the factors we outlined in Poulis v. State Farm Fire and Casulaty Company, 747 F.2d 863 (3d Cir. 1984), dismissal with prejudice was not warranted.  For the reasons discussed below, we will affirm the District Court's dismissal of the twelve cases at issue.

In re: Asbestos Products Liability Litigation, No. 12-2061 (3d Cir. May 31, 2013).

PM

June 2, 2013 in MDLs, Recent Decisions | Permalink | Comments (0)

Friday, March 22, 2013

Moore on Confronting the Myth of "State Court Class Action Abuses"

In the shameless self-promotion category . . .

I have posted on SSRN a draft of my article "Confronting the Myth of 'State Court Class Action Abuses' Through an Understanding of Heuristics and a Plea for More Statistics."  The paper has been accepted for publication in the UMKC Law Review, Volume 82, No. 1 (2013).

Abstract:

      The Supreme Court heard five cases involving class actions this term.  One of these cases, Standard Fire Insurance Company v. Knowles, brought the Class Action Fairness Act to the Court for the first time.  Petitioner insurance company and its numerous business-interest amici repeatedly claimed before the Court that "state court class action abuses" should justify removal of the case (which was based on state law and filed in state court) to federal court. 

      The charge of "state court class action abuses" echoes the same rhetoric that CAFA's supporters used in their ultimately successful efforts to pass the legislation.  Hyperbolic assertions of a "flood of state court class actions" in which plaintiffs' lawyers were "abusing" the limits of diversity jurisdiction to keep cases in state court, and state courts were "abusing" the class action device by granting "drive-by" class certifications, fill the pages of CAFA's legislative history.

        Unfortunately for the quality of the debate, then and now, no current data and very little past data about class actions are readily and publicly available, for federal or state courts.  In other words, courts in the United States offer no data on such basic questions as the number of cases filed as class actions, the percentage of cases designated as class actions that are eventually certified as such, or the ultimate disposition of such cases.  

        To be sure, the herculean efforts of the Federal Judicial Center, the California Office of Court Research, and private academic researchers have resulted in the compilation of databases that provided partial answers to some of these questions.  But these limited efforts are well beyond the resources and skill available to the public, the press, and even to most policy-makers and the Court. 

      What does the lack of baseline data on class actions mean?  A wealth of psychological research has shown that human cognition and judgment are subject to a variety of heuristics and biases.  For example, the mantra of "state court class action abuses" has a "priming effect" making it easier to see or imagine such "abuses."  Further, the mind automatically attempts to create a coherent story out of the information it has, even if that information is incomplete or invalid.  This manifests itself in many ways, including the "anchoring effect," the "availability heuristic," and the "representativeness heuristic," which are exploited by those spreading the myth of "state court class action abuses."  Even if a person knew the base rate of class action filings or dispositions, for example, the "representativeness heuristic" would make it difficult to avoid making judgments about class actions based on negative stereotypical anecdotes.  Without such base rates available at all, it will be almost impossible.  One can only hope that the Court will resist the lure of class action mythology as it considers the five class action cases pending this term.

PM

March 22, 2013 in Class Actions, MDLs, Recent Scholarship | Permalink | Comments (0)

Friday, February 8, 2013

Judge Rules on Motion to Dismiss Second Amended Complaint in BP Securities Litigation

On February 6, Judge Keith Ellison in the Southern District of Texas granted in part and denied in part defendants' motion to dismiss the Second Amended Complaint in MDL No. 10-md-2185, In re BP p.l.c. Securities Litigation. The ruling was summarized in the National Law Journal as "allow[ing] investors to go forward on claims that BP and former chief executive officer Anthony Hayward misled the public about the scope of BP's operating management system, or OMS—a safety program introduced before the 2010 [Deepwater Horizon] disaster spread millions of gallons of oil throughout the Gulf of Mexico."

--PM

February 8, 2013 in Class Actions, MDLs, Recent Decisions | Permalink | Comments (0)

Friday, May 4, 2012

Preliminary Approval Granted for Deepwater Horizon Settlement

The story is reported by the National Law Journal here.  The link to the Oil Spill litigation web site, which contains additional links to the court's actual orders regarding the preliminary approval, is here.

Class members have until August 31 to object and until October 1 to opt out.  The final fairness hearing is set for November 8.

PM

May 4, 2012 in Class Actions, Current Affairs, In the News, Mass Torts, MDLs | Permalink | Comments (0)

Saturday, March 3, 2012

BP Oil Spill Settlement

A settlement has been reached in the Gulf Oil Spill Litigation, which was set to begin trial in Louisiana federal court on Monday. Story from the New Orleans Times-Picayune here.

--A

March 3, 2012 in In the News, Mass Torts, MDLs | Permalink | Comments (0)

Friday, December 30, 2011

Pilot project in Southern District of New York to simplify complex cases

The project, to begin January 2011, is spearheaded by Judge Shira Scheindlin, and is reported in The Third Branch here. 

PM

December 30, 2011 in Class Actions, Federal Courts, MDLs | Permalink | Comments (0)

Friday, October 21, 2011

Lahav on Trial by Formula

Alexandra Lahav (University of Connecticut) has posted The Case for Trial By Formula to SSRN.

Abstract:      
The civil justice system tolerates inconsistent outcomes in cases brought by similarly situated litigants. One reason for this is that in cases such as Wal-Mart v. Dukes, the Supreme Court has increasingly emphasized liberty over equality. The litigants’ right to a “day in court” has overshadowed their right to equal treatment. However, an emerging jurisprudence at the district court level is asserting the importance of what this Article calls “outcome equality” – equal results reached in similar cases. Taking the example of mass torts litigation, this Article explains how innovative procedures such as sampling are a solution to the problem of inconsistent outcomes. Outcome equality, achieved through statistical adjudication, is gaining force on the ground. Despite the Supreme Court’s principled stance in favor of liberty in a series of recent opinions, a victory for outcome equality will improve our civil justice system. 

To date, the discussion about civil litigation reform has focused on the conflict between the individual’s right to participation and society’s interest in the efficient disposition of the great volume of outstanding litigation. This conflict is real and is particularly troublesome in mass torts, where tens of thousands of plaintiffs file related cases making it impossible for the courts to hold a hearing for each claimant. But the fixation on this conflict ignores the fact that an individual’s right to equal treatment is also a critical value and can conflict with the individual’s right to participation. This Article reframes the debate about procedural justice in the mass torts context as a conflict between liberty and equality rather than liberty and efficiency. The rights at stake are not only the individual’s right to a day in court to pursue his claim as he wishes, but also the right to be treated as others are treated in similar circumstances. This Article defends district court attempts to achieve equality among litigants by adopting statistical methods and advocates greater rigor in the use of these methods so that courts can more effectively promote outcome equality.

RJE

October 21, 2011 in Class Actions, Federal Courts, Federal Rules of Civil Procedure, Mass Torts, MDLs, Recent Scholarship | Permalink | Comments (0)

Wednesday, September 21, 2011

Forum Non Conveniens Dismissal of BP Oil Spill Shareholder Suit

Last week Judge Ellison of the U.S. District Court for the Southern District of Texas issued an order dismissing on forum non conveniens grounds a shareholder derivative suit against BP arising out of the Deepwater Horizon explosion and oil spill. See In re BP Shareholder Derivative Litigation, 2011 WL 4345209, MDL No. 10-md-2185 (S.D. Tex. Sept. 15, 2011). From the opinion (citations omitted):

The Court concludes that England, as the focal point of this litigation, is the far more appropriate forum. Because this derivative lawsuit involves the internal governance of an English corporation, the convenience of the parties and the interests of justice favor England as a more convenient forum. This case is unique because it is a derivative lawsuit involving the internal affairs of a foreign corporation. Indeed, because Plaintiffs are just a handful of the thousands of potential shareholders that could sue the individual defendants on behalf of BP, their choice of forum is accorded less deference than the typical home forum plaintiff in a traditional two party lawsuit. Moreover, because this lawsuit calls for an inquiry into the knowledge and actions of BP's Board of Directors, the lion's share of the relevant documents and the majority of the individual defendants are located in England. Given the decreased deference accorded to Plaintiffs' choice of an American forum, the private interest factors weigh slightly in favor of dismissal.

It is the public interest factors, however, that most strongly favor England as the appropriate forum in which to proceed with this case. These factors persuade the Court that this action should be dismissed. The primary concern of this derivative litigation is the internal affairs of an English corporation, and the suit seeks to recover damages for the benefit of BP only. Accordingly, England has a greater interest in the resolution of this dispute. Moreover, English law governs this dispute and will determine whether the individual defendants breached their fiduciary duties and harmed BP in the process. Thus, English law would predominate and, if the case were to continue here, the Court would be faced with the formidable exercise of interpreting and applying a still nascent and evolving body of foreign law. The Court would be saddled with not only the ordinary task of adjudication, but also the additional administrative tasks characteristic of derivative actions articulated in Koster. Dismissing this case would relieve this Court of the substantial burdens of such undertakings. Finally, the citizens of Louisiana should not be burdened, as factfinders, with the exercise of applying complex English law to determine whether the individual defendants harmed an English company through unlawful acts and inadequate oversight. As these public interest considerations counsel strongly in favor of dismissal, Defendants' Motion is hereby GRANTED.

--A

(Hat Tip: Marc Poirier)

September 21, 2011 in MDLs, Recent Decisions | Permalink | Comments (0)

Thursday, September 1, 2011

Summary Judgment in Fosamax Case Leaves Only One Claim Standing

There is only one federal court claim left in the 1500 case Fosamax MDL in the Southern District of New York.  Although trial will begin on September 7, the judge granted partial summary judgment for Merck on several issues, including the fact that the plaintiff cannot seek punitive damages.  The opinion relies heavily on the outcome of the previous cases, despite the fact that the plaintiff's injury occurred during a later time frame, thus possibly changing the facts as to Merck's knowledge of risks and defects.

This decision raises questions about not only res judicata, but the scope of "law of the case" in large MDLs in which the plaintiffs are still bringing their own suits in their own names.  One wonders how this plaintiff would have fared in a non-MDL situation.

The New York Law Journal reports here.

RJE

September 1, 2011 in Federal Courts, Mass Torts, MDLs, Recent Decisions | Permalink | Comments (0)

Friday, August 19, 2011

BP Oil Spill MDL Gushes On

Judge Barbier in the Eastern District of Louisiana held a monthly status conference on August 12, 2011.  The minute order  entered thereafter hints at a plethora of civil procedure issues going on in the cases.  At one point, without further explanation, the court “reminded parties of the public website for MDL 2179.” 

--Patricia Hatamyar Moore

August 19, 2011 in Mass Torts, MDLs | Permalink | Comments (2)

Saturday, July 30, 2011

Note on Approval and Rejection of Non-Class Settlements

Alexandra Rothman (Fordham Law Review) has posted a draft of her note Bringing an End to the Trend: Cutting "Approval"and "Rejection" Out of Non-Class Mass Settlement to SSRN.

Abstract:      
In March 2010, Judge Alvin K. Hellerstein of the U.S. District Court for the Southern District of New York rejected a mass settlement between the City of New York and the 9/11 first responders and rescue workers. The settlement was not a class action but some ten thousand cases aggregated for efficiency purposes. Nonetheless, Hellerstein, invoking the spirit of Rule 23(e) of the Federal Rules, which provides for judicial approval of settlement in class actions, decided that the settlement was not enough. Hellerstein’s actions inspired a debate over whether judges have the authority to approve or reject settlements absent class certification. This Note continues this discussion, and in doing so, contends that the 9/11 “rejection” was part of a larger trend of judges “approving” non-class mass settlements, even though the Federal Rules do not sanction such conduct. In presenting this trend, this Note discusses three examples of non-class action, multidistrict litigation before turning to the 9/11 settlement. This Note concludes that judicial “approval” and “rejection” of settlement, although a pragmatic response to the burdens of mass litigation, is inconsistent with the Federal Rules and adversarial system, and therefore, courts should bring an end to this practice. 

RJE


July 30, 2011 in Mass Torts, MDLs, Recent Scholarship | Permalink | Comments (0)

Sunday, July 24, 2011

SDNY Dismisses Class Action Claim under Illinois State Law, Distinguishing Shady Grove

            The SDNY recently considered a motion to dismiss the third amended class-action complaint alleging federal and state antitrust violations by major record labels in selling music over the internet.  In re Digital Music Antritrust Litigation, 2011 WL 2848195 (S.D.N.Y. July 18, 2011, No. 06 MD 1780). 

            Plaintiffs had added a claim under Illinois antitrust law on behalf of all Illinois-resident indirect purchasers.  The Illinois statute at issue authorized a suit for damages by an injured private party, but provided that only the State Attorney General, not a private party, could “maintain a class action in any court of this State for indirect purchasers asserting claims under this Act.”

            Applying Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., 130 S. Ct. 1431 (2010), the court first concluded that Rule 23 applied to the situation, but reached a different conclusion from Shady Grove on whether Rule 23 in this instance “abridge[d], enlarge[d], or modif[ied] a substantive right.”  As to that question, the court held that Justice Stevens’ concurrence in Shady Grove formed the “narrowest grounds” and was therefore controlling over Justice Scalia’s plurality opinion.  

            Under Justice Stevens’ analysis of §2072(b), then, the court held:

[The Illinois indirect-purchaser] statute provides a procedure that is “so bound up with the state-created right or remedy that it defines the scope of that substantive right or remedy.” Shady Grove, 130 S.Ct. at 1450 (Stevens, J., concurring in part and concurring in the judgment). Therefore, applying the federal rule to override this process would be “an application of a federal rule that effectively abridges, enlarges, or modifies a state-created right or remedy” and is disallowed. Id. at 1451. Unlike the New York law at issue in Shady Grove, its limitation is not contained in a generally applicable procedural rule but, rather, in the same paragraph of the same statute that creates the underlying substantive right. In re Wellbutrin, 756 F.Supp.2d at 677. It applies only to that statute. Id. “Furthermore, courts have observed that the Illinois statute represents a policy judgment as to the feasibility of managing duplicative recovery, which the legislature has entrusted to the Attorney General but not to individual indirect purchasers.” Id. That policy judgment is substantive.

            Thus, the court dismissed plaintiffs’ claim on behalf of indirect purchasers under Illinois law.  (Numerous other claims, however, remain pending.)

--PHM

July 24, 2011 in Class Actions, Federal Rules of Civil Procedure, MDLs, Recent Decisions | Permalink | Comments (0)

Friday, July 1, 2011

Could Wal-Mart Extend Beyond Class Actions?

Like Adam, I have also gotten into the Op-Ed game for Wal-Mart commentary.  My Op-Ed appears in today's National Law Journal and explores the ways in which the 23(a)(2) analysis might leak into interpretations of the common question language found in other Federal Rules.

RJE

July 1, 2011 in Class Actions, In the News, MDLs, Recent Decisions, Supreme Court Cases | Permalink | Comments (0)

Monday, May 16, 2011

Campos on Mass Torts and Due Process

Sergio Campos (University of Miami) has posted Mass Torts and Due Process to SSRN.

Abstract:      
Almost all courts and scholars disfavor the use of class actions in mass tort litigation, primarily because class actions infringe on each plaintiff's control, or autonomy, over the tort claim. The Supreme Court has stressed the importance of litigant autonomy in other contexts, most recently in decisions involving the Rules Enabling Act, preclusion, and arbitration. Indeed, this term the Court will decide four cases involving class actions that will likely reaffirm the importance of protecting a plaintiff's autonomy over the claim. In all of these contexts the Court, and most scholars, have understood protecting litigant autonomy as a requirement of procedural due process. 

In this article I argue that protecting litigant autonomy in the mass tort context is mistaken, and, in the process, challenge basic notions of procedural due process. Relying on recent property theory, I first show that protecting litigant autonomy in mass tort litigation causes collective action problems that undermine the deterrent effect of the litigation. Thus, protecting litigant autonomy leads to more mass torts. Counterintuitively, this tragedy can be avoided by taking away each plaintiff's autonomy over the claim, such as through a mandatory class action. 

I then use the self-defeating nature of litigant autonomy in the mass tort context to reexamine the law of procedural due process. I argue that an interest in deterrence, understood as an individual interest in avoiding the tort altogether, should be included in the due process analysis. I also argue for a more impartial method to balance competing interests. I conclude that the law of procedural due process should permit mandatory collective procedures in mass tort and similar contexts. I further suggest that the law of procedural due process should focus less on procedural rights such as litigant autonomy, a "day in court," and even the opportunity to be heard, and focus more on often ignored aspects of procedural design.

 RJE


May 16, 2011 in Class Actions, Mass Torts, MDLs, Recent Scholarship | Permalink | Comments (0)

Saturday, April 9, 2011

Actuarial Litigation Symposium at UConn

On Friday, April 15, the University of Connecticut Law School is hosting a conference on actuarial litigation.  If you are interesting in attending, please contact patricia.carbray@law.uconn.edu.

Schedule and list of speakers after the jump.

Continue reading

April 9, 2011 in Class Actions, Conferences/Symposia, Mass Torts, MDLs | Permalink | Comments (0)

Tuesday, March 8, 2011

Campos and Erichson Debate the Future of Mass Torts on PENNumbra

PENNumbra, the online companion to the Penn Law Review is hosting a debate about the procedural future of mass torts between Sergio Campos (University of Miami) and Howard Erichson (Fordham University). 

From Sergio's opening statement:

The evolving case law on aggregate litigation, based largely on notions of notice and due process (embodied in “day in court” principles), has been met with significant criticism on both sides by reformers who claim that the system is inherently unfair or encourages wasteful litigation.

In The Future of Mass Torts... And How to Stop It, Professor Sergio Campos argues for a change in course from the current treatment of mass torts. The current model of providing each individual plaintiff a “day in court,” he suggests, ultimately undermines plaintiffs’ interests by dividing the potential recovery—and thus the litigation incentives—among the plaintiffs while leaving the defendant with the full incentive to avoid litigation. Although the Supreme Court has recently upheld plaintiffs’ right to individual litigation, due process need not be inherently inflexible. By looking to older precedent, such as Mullane v. Central Hanover Bank & Trust Co., Campos supports a “compelled, collective ownership” of claims by procedures such as multi-district litigation or the mandatory class action. Although this model may infringe on “litigant autonomy,” Campos argues that this is ultimately necessary to best protect the interests of mass tort plaintiffs.

RJE

 

March 8, 2011 in Class Actions, Mass Torts, MDLs, Recent Scholarship | Permalink | Comments (0)

Thursday, December 16, 2010

BP Litigation and Parallel Proceedings

The Blog of the Legal Times has a posting today about the implications of parallel proceedings in criminal and civil court given the recent suits that the DOJ has filed against BP regarding the oil spill.

RJE

December 16, 2010 in Federal Courts, Mass Torts, MDLs | Permalink | Comments (0)

Monday, November 8, 2010

NYTimes Sunday Magazine Cover Story about BP Litigation

The Sunday Magazine of the New York TImes has a long and interesting feature on the role on organization of lawyers in the BP litigation with a particular emphasis on the personalities involved and their past association with complex litigation.  A very interesting read.

RJE

November 8, 2010 in In the News, Mass Torts, MDLs | Permalink | Comments (0)

Monday, October 4, 2010

Toyota's Twombly/Iqbal Strategy

Toyota has filed motions to dismiss in many of sudden acceleration cases including a case recently filed in Virginia.  They argue that the plaintiffs have failed to state a claim because they cannot identify a specific defect which caused the accelaration, therefore failing to meet the "heightened" Twombly/Iqbal standard.

The National Law Journal reports here.

RJE

October 4, 2010 in Federal Rules of Civil Procedure, In the News, Mass Torts, MDLs | Permalink | Comments (0)