Thursday, April 25, 2019

Updated: When Trial is Too "Expensive" for Law Firms

After posting this yesterday, Bryan Aylstock reached out to provide some procedural history.  While his information better contextualizes the letter that went out, as I note below, I am still troubled by the idea that a lawyer would dismiss his client's case unless she takes some affirmative action to the contrary. As my conversations with some of the affected plaintiffs reflect, at least some feel a great deal of pressure to dismiss their claims.

As I noted, for the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I'd heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of discovery while they continue to evaluate their settlement prospects.

The text of the AWKO letter (included fully below) tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial."  As I suggested yesterday, I suspect that’s what most plaintiffs want. (As plaintiffs often tell me, “this is not about the money for me.”)

Let me fill in some background on the “aggressive deadlines” order that the letter refers to. Judge Goodwin has maintained an “inactive docket” as well as an active docket of pelvic mesh cases.  (There were, at one point, over 104,000 cases pending before him.) On February 4, 2019, he issued Pretrial Order 328 in the Ethicon MDL, which moves a list of cases from the inactive to the active docket.  He begins his order by saying:

Despite representations in inactive docket orders proposed by the parties and entered by the court, that the cases on Exhibit A have been settled or entered into a settlement model, and despite repeated warnings by the court that cases will not remain on the inactive docket indefinitely, the number of cases on the inactive docket remains in the thousands.

Judge Goodwin thus removed the listed cases from the inactive to the active docket and put discovery deadlines in place. For instance, plaintiffs had to file their fact sheets by February 15, 2019; written discovery requests by March 25, 2019; and expert disclosures by May 24, 2019.

After a case completes the discovery process and goes through dispositive motions, like motions for summary judgment, it is ready either for trial in the Southern District of West Virginia (the location of the MDL) or a remand to its original court where it could then be placed on a trial docket. 

The AWKO letter says: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."

Consequently, the firm wants to dismiss clients’ claims that are in the settlement process:

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs.

As Aylstock explained, this letter only went out to clients who had indicated that they’d like to consider a potential settlement.  The firm negotiated an aggregate settlement with Ethicon awhile ago, and these cases are being processed through that program. 

When I asked him whether there was a walkaway provision within the deal that was driving this, he said that there was a walkway threshold (meaning that Ethicon could walk away from the deal unless enough plaintiffs participate), but that it was “exceedingly low” and had been already been met (and was met shortly after it was negotiated).

In my earlier post, I said that the law firm wanted their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial.  (The letter mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and recommends that the client accept "your Ethicon settlement offer.")

Aylstock said that he had no problem taking cases to trial and had lawyers flying around the country taking depositions all the time. Nor was he hesitant about spending money the money to do so.

Instead, he wanted those clients who were in the settlement process not to have to go through discovery expenses if they planned to take the settlement offer. He said a client would be no worse off for having a case dismissed without prejudice under the agreement he negotiated with Ethicon, which waives the statute of limitations. 

Judge Goodwin has stopped accepting cases into the MDL, so presumably if a case were dismissed and refiled it would be in a state or federal court outside of the MDL proceeding.  Aylstock likewise told me that the filing fee to refile a lawsuit would be far less than the costs of experts and that he thinks a plaintiff would not be back to square one because the firm would have only case-specific discovery left to do.

As I told him, what I found most troubling about the AWKO letter was this phrase: "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice." To me, this seems like a powerful use of default rules to push plaintiffs toward settlement.

The letter apparently went out sometime in the last week, and it gave recipients only until April 24 to decide.  The folks with whom I spoke had this to say about their conversations with the firm’s case managers:

  • Client 1: “I talked live with Ann and her tone was like a bull in a china shop. . . . She said, ‘You need to be ready for deposition in two weeks, hiring your own experts and witnesses, paying your way to fly around the country at your own dime.’”
  • Client 2: “I let them know that I do NOT want them to dismiss my case. They have told me that means I will likely be dropped from them. . . . Right now they are trying to bully me, and that just isn't working!”

Perhaps other clients feel differently.  Still, two points bear mention:

First, the lawyers are the ones who initially bear the expenses associated with discovery and trial, not clients. Ultimately, costs and attorneys' fees are deducted from any judgement or settlement that the plaintiff receives, but those should not be out-of-pocket expenses for the clients.

Second, it’s apparent that at least some of AWKO’s clients are under the impression (right or wrong) that they must settle or the law firm will no longer represent them.  When I asked Aylstock about this, he said, in a much more detailed way, that it depends on an individual analysis for each client.

In general, before withdrawing from representing a client, Fla. R. Jud. Admin. 2.060 requires attorneys to file a motion setting out the reasons for withdrawing and the client’s name and address.  The motion must be set for a hearing, and the firm must serve the motion on both the client and opposing counsel.

In contingency fees governed by Florida law, Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994), holds that when an “attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.”  Only “if the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule” is the withdrawing attorney entitled to a fee.

And Rule 4-1.2(a) makes it clear that: “A lawyer must abide by a client’s decision whether to settle a matter.”  Florida also has detailed rules for contingent fees that I found interesting:

(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards are presumed, unless rebutted, to be clearly excessive:

Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action:
  • 1.) 33 1/3% of any recovery up to $1 million; plus 2.) 30% of any portion of the recovery between $1 million and $2 million; plus 3.) 20% of any portion of the recovery exceeding $2 million.
After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:
  • 1.) 40% of any recovery up to $1 million; plus 2.) 30% of any portion of the recovery between $1 million and $2 million; plus 3.) 20% of any portion of the recovery exceeding $2 million.
If all defendants admit liability at the time of filing their answers and request a trial only on damages:
  • 1.) 33 1/3% of any recovery up to $1 million; plus 2.) 20% of any portion of the recovery between $1 million and $2 million; plus 3.) 15% of any portion of the recovery exceeding $2 million.
An additional 5% of any recovery after institution of any appellate proceeding or postjudgment relief or action is required for recovery on the judgment.

Comments welcome from all sides.  They will not show up immediately, but I will approve them as I see them coming in.

The entire letter follows: 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

 After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye

Case Manager

Transvaginal Mesh Litigation
Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200
Pensacola, FL 32502

Phone: (850) 202-1010

Toll Free: (888) 255-AWKO (2956)
Facsimile: (850) 916-7449
Email: ajaye@awkolaw.com

 

April 25, 2019 in Aggregate Litigation Procedures | Permalink | Comments (0)

Wednesday, April 24, 2019

When Trial is Too "Expensive" for Law Firms

For the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I've heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of trial.
 
Who bears trial expenses?  The lawyers, at least initially.  Ultimately, costs and attorneys' fees are deducted from any judgment or settlement.  
 
The text of the letter tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial." Good, right? That's what most plaintiffs want, I suspect.
 
But wait. The letter continues: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."  Now, that seems odd.  Why would that be?  A credible threat of trial is what raises settlement values and creates the pressure to settle in the first place.
 
Here's the clincher: the firm wants its clients to dismiss their claim without prejudice to avoid trial. "To avoid this problem" (i.e., the problem of expense for the law firm) "we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs."
 
Wow.  So, the law firm wants their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial?  The letter then mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and notes that it recommends that the client accept "your Ethicon settlement offer."
 
Then, "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice."
 
I'm speechless.
 
The entire letter has been replicated below: 
 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

  After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye

Case Manager

Transvaginal Mesh Litigation
Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200
Pensacola, FL 32502

Phone: (850) 202-1010

Toll Free: (888) 255-AWKO (2956)
Facsimile: (850) 916-7449
Email: ajaye@awkolaw.com

 

April 24, 2019 in Aggregate Litigation Procedures | Permalink | Comments (2)

Sunday, March 17, 2019

William C. Powers, Jr. (1946-2019)

Professor William C. Powers, Jr. passed away on March 10.  A torts and products liability scholar, Professor Powers served as President of the University of Texas from 2006 to 2015.  He also served as Dean of the University of Texas School of Law, and was a member of the faculty there for more than 40 years.  Among many other honors, he served as Co-Reporter for the Restatement (Third) of Torts: Apportionment of Liability and Co-Reporter for the Restatement (Third) of Torts: Liability for Physical Harm.  The University of Texas recounts his remarkable accomplishments in UT Mourns Former President William C. Powers Jr., Who Fought for the University’s Soulnoting that the university tower was darkened on March 10 in his honor as the university mourns.

Among his most influential articles related to torts and products liability were the following: The Insubstantiality of the "Substantial Factor" Test for Causation, 73 Mo. L. Rev. 399 (2008) (with Joseph Sanders and Michael D. Green); Sports, Assumption of Risk, and the New Restatement, 38 Washburn L.J. 771 (1999); Judge and Jury in the Texas Supreme Court, 75 Tex. L. Rev. 1699 (1997); Some Pitfalls of Federal Tort Reform Legislation, 38 Ariz. L. Rev. 909 (1996); Border Wars, Tex. L. Rev. 1209 (1994); What a Comparative Bad Faith Defense Tells Us About Bad Faith Insurance Litigation, 72 Tex. L. Rev. 1571 (1994); Negligence, Breach of Contract, and the "Economic Loss" Rule, 23 Tex. Tech. L. Rev. 477 (1992) (with Margaret Niver); A Modest Proposal to Abandon Strict Products Liability, 1991 U. Ill. L. Rev. 639; Distinguishing Between Products and Services in Strict Liability, 62 N.C. L. Rev. 415 (1984); and The Persistence of Fault in Products Liability, 61 Tex. L. Rev. 777 (1983).

 

March 17, 2019 | Permalink | Comments (0)

51 Ex-Gymnasts Sue Olympic Committee for Negligence regarding Sexual Abuse by Team Doctor

Plaintiffs filed the complaint in federal district court in Colorado.  Article on the case, Doe v. U.S. Olympic Committee, in Bloomberg -- Ex-Gymnasts Hit Olympic Committee With Sexual Abuse Suit.

 

March 17, 2019 in Sexual Abuse | Permalink | Comments (0)

Bayer's Essure Suits Back to State Court Because Preemption Does Not Create Federal Question Jurisdiction

Recent ruling from the Fourth Circuit described in Bloomberg article -- Bayer Must Face Revived Essure Suit in N.C. State Court.  The article notes that as of January 28, nearly 30,000 Essure users are suing Bayer. 

March 17, 2019 in Procedure, Products Liability | Permalink | Comments (0)

Connecticut Supreme Court Decision Allowing Suit Against Gun Manufacturers for Sandy Hook Shooting

Growth in Biometric Privacy Suits and Related Firm Practice Groups

Monday, February 11, 2019

5th Annual Civil Procedure Workshop Call for Papers

The University of Texas will be hosting the 5th Annual Civil Procedure Workshop on October 25-26, 2019.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure.

Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2019 include Kevin Clermont, Mechele Dickerson, J. Maria Glover, Tara Leigh Grove, Olatunde Johnson, Linda Mullenix, James Pfander, Charlie Silver, Shirin Sinnar, Steve Vladeck, and Patrick Woolley. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 15, 2019.

While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by April 22, 2019. Please send all submissions or related questions to Bob Bone.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.

Bob Bone (UT Austin), rbone@law.utexas.edu

Dave Marcus (UCLA), marcus@law.ucla.edu

Liz Porter (UW), egporter@uw.edu

Brooke Coleman (Seattle U), colemanb@seattleu.edu

February 11, 2019 in Conferences | Permalink | Comments (0)

Friday, February 8, 2019

Sarah Swan on Preempting Plaintiff Cities

Professor Sarah L. Swan (Florida State Law) has posted to SSRN her manuscript, Preempting Plaintiff Cities, Fordham Urb. L. J. (forthcoming).  Here is the abstract:

Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.

But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.

What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.

Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.

February 8, 2019 in Current Affairs, Mass Tort Scholarship, Regulation | Permalink | Comments (0)

Thursday, February 7, 2019

Nikki Chamberlain on Class Actions in New Zealand

Professor Nikki Chamberlain (University of Auckland) has posted her article, Class Actions in New Zealand: An Empirical Study, 24 New Zealand Bus. L. Q. 132 (2018).  Here is the abstract:

This article contains the first empirical study on opt-in class actions, which are referred to as representative actions, filed under r 4.24 of the High Court Rules 2016 in the New Zealand High Court and the New Zealand Employment Court. The findings of this study reveal that opt-in class actions are now part of the New Zealand legal landscape in substance, if not in name. In particular, the data reflects the rise of consumer class actions in New Zealand, which, in part, have been assisted by litigation funders entering into the market. However, despite an increase in opt-in class actions, New Zealand’s civil procedure mechanism for managing class action litigation is inefficient, uneconomic and creates significant uncertainty for all class action stakeholders. This article examines the empirical data, the trends in the data, and the reasons for those trends. It concludes by discussing why reform is required against the backdrop of this study and New Zealand’s procedural process values as contained in the High Court Rules.

 

February 7, 2019 in Aggregate Litigation Procedures, Class Actions, Foreign, Mass Tort Scholarship, Procedure | Permalink | Comments (0)

Wednesday, February 6, 2019

Eri Osaka on the Fukushima Nuclear Disaster Compensation Scheme

Professor Eri Osaka (Toyo University) has posted to SSRN her manuscript, Current Status and Challenges in the Fukushima Nuclear Disaster Compensation Scheme: An Example of Institutional Failure?  Here is the abstract:

The Fukushima Nuclear Disaster brought widespread and long-term damage. Soon after the accident, the government hastily set up the Fukushima nuclear disaster compensation scheme under the existing law to deal with a large number of compensation claims by the victims. It published the compensation guidelines and established the nuclear damage alternative dispute resolution (ADR) process to promote the voluntary efforts by Tokyo Electric Power Company (TEPCO) as well as victims to resolve their nuclear damage disputes. It also has been pouring public money into TEPCO.

This paper examines whether the scheme has been functioning well, in other words, whether the victims have been compensated through the scheme. Section 2 gives an overview of the scheme. It begins with the Act on Compensation for Nuclear Damage, the basis of the current scheme. Next it explains the responsibilities fulfilled by the government and TEPCO under the scheme. It also briefly addresses the current discussion on the scheme reform. As it turns out, the current scheme is far from successful. Then, Section 3 focuses on litigation as a realistic tool to change the malfunctioning scheme under existing conditions. It introduces a discussion of the current development of cases pursuing just and equitable relief for the nuclear damage victims. However, litigation is not a panacea. Section 3 also discusses its obstacles and possible solutions.

 

February 6, 2019 in Aggregate Litigation Procedures, Environmental Torts, Foreign, Mass Disasters, Mass Tort Scholarship, Procedure | Permalink | Comments (0)

Tuesday, December 4, 2018

Are you a plaintiff involved in a women's health mass tort? Or do you know people who are?

Today's post is really a plea for help with a new project that I've just started.  I've created a new survey that allows plaintiffs to tell me about their interaction with the court system and their attorneys.

I’m hoping to hear directly from plaintiffs who are involved in women’s health mass torts like pelvic mesh, breast implants, NuvaRing, Mirena, and Yasmin/Yaz. 

If you're a plaintiff involved in one of those cases, please consider taking this short survey.  It will ask you questions about whether you had opportunities to tell your side of the story and present evidence, how you felt your lawyer handled your case, how you felt about the process and your outcome, and whether you used third-party funding.

If you're a lawyer or reporter, I'd love your help publicizing the project. Participants' answers will be kept completely confidential, and I am not asking for details that would be covered by a confidentiality provision in a settlement.  

I am not affiliated with the courts or with the lawyers on either side in any way and I do not have any clients of my own.  I don’t consult for any of the lawyers in these cases, and all of my funding comes from the University of Georgia—not from a private company or interest.  In other words, I have no financial ties that affect the way I conduct my research.

Here's more information about me and the research I am doing: https://www.elizabethchambleeburch.com/womens-mdls

If you have questions, please feel free to contact me--if confidentiality is important, please use masstortsuga@gmail.com rather than my University of Georgia email.  

Screenshot 2018-12-04 12.45.43

December 4, 2018 in Aggregate Litigation Procedures, Current Affairs, Lawyers, Mass Tort Scholarship, Medical Devices - Misc., Pharmaceuticals - Misc., Prempro, Products Liability | Permalink | Comments (0)

Tuesday, October 23, 2018

Judge Reduces Roundup Verdict Against Bayer to $78.5 Million

Article in the Wall Street Journal -- Judge Reduces Jury Award Against Bayer's Roundup to $78.5 Million, by Sara Randazzo and Jacob Bunge.  

October 23, 2018 in Products Liability | Permalink | Comments (0)

Tuesday, October 2, 2018

Types of Litigation Finance (for journalists)

I'm at a conference on litigation funding and realized it might be useful, especially for journalists, to think through what we mean when we talk about litigation funding or litigation finance.  

Journalists and others tend to describe all forms of investment that support litigation under one umbrella: “litigation funding.”  But in fact the litigation funding market is highly specialized. Types of litigation funding should be considered separately because they are very different financial products with different costs and benefits.   This is my stab at setting out the parameters of this space: 

  • Commercial litigation funding. This type of litigation funding is offered by investors and can be used by either plaintiffs or defendants. The funding agreements involve sophisticated parties on both sides, either firms or clients.  It well recognized in international arbitration and is increasingly used in other types of commercial cases.   Funding may be for an individual litigation or for a portfolio of suits. 
  • Appeals funding. This type of funding is given to lawyers against fees (often contingency) and to clients against expected recoveries. 
  • Patent litigation funding. These involve three types of entities.  First, some entities purchase patents and prosecute patent infringers but have no relationship to the inventors.  Second,  a company may sue the infringers and give a small percentage of the recovery to the inventors.  Third, universities or companies may monetize their patent portfolios using a funder. 
  • Law firm financing. Law firms may obtain financing usually structured as a loan with their receivables as collateral.
  • Consumer litigation funding. These funders provide small retail level non-recourse loans to individual tort or contract plaintiffs, typically under $5,000.  This type of funding is the most like “payday” loans. 
  • Mass tort monetizations. These types of funders may advance money to lawyers against future earned fees and to clients against expected recoveries in aggregate tort litigation such as multidistrict litigation after a settlement matrix is in place.  Depending on how it is used, this may be more like law firm financing for a portfolio of cases of a particular type (cases filed against a particular defendant for example) or consumer litigation funding, directly offered to the client.  These funders specialize in mass torts, but loans to lawyers should be differentiated from advances to clients because lawyers are sophisticated market actors who can protect themselves, whereas tort clients tend to be more vulnerable. 

(This was edited to correct the amount that individuals usually obtain from consumer funding).  

October 2, 2018 in Aggregate Litigation Procedures, Conferences, Lawyers, Mass Tort Scholarship, Regulation | Permalink | Comments (0)

Monday, March 26, 2018

Conference Announcement: Pricing Litigation Risk -- April 27, 2018

The University of Connecticut School of Law and Insurance Law Center invite you to a conference on

“Pricing Litigation Risk in the 21st Century”

Friday, April 27, 2018 from 9 to 2

Please join us for a first of its kind conference on measuring and managing litigation risk.  Bringing together thought leaders in law, finance, insurance, and economics, from practice and academia, this conference will explore new approaches to evaluating litigation risk, including the latest tools available such as digital and data analytics, artificial intelligence, and game theory.  We will examine the methods for evaluating risk currently in use, explore new approaches, and consider what limitations constrain our ability to evaluate and quantify litigation risk.

Panel Topics Include:

  • Current Methods: Perspectives from Law Firms, Finance, and Insurance
  • Innovations: Probability Theory and Data Analytics
  • New Directions, Possibilities and Critique

Speakers:

  • David Abrams, Professor, University of Pennsylvania Law School
  • Natalie Chairamonte, Vice President, Sovereign Insurance
  • Andrew Cohen, Vice President, Burford Capital
  • Eric Falkenberry, Partner, DLA Piper
  • James Heavner, Senior Vice President, Director of Litigation, The Hartford
  • Daniel Martin Katz, Associate Professor, Illinois Tech - Chicago Kent Law
  • William Narwold, Partner, Motley Rice
  • Elizabeth Sacksteder, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
  • Selvyn Seidel, CEO, Fulbrook Capital Management
  • Kathryn Spier, Professor, Harvard Law School
  • Marc Victor, President, Litigation Risk Analysis

To register, please visit ilc.law.uconn.edu/litigationrisk18

Registration is required by April 23. Continental breakfast and lunch will be served.

Registration is free of charge, parking $3/day. If you require reasonable accommodations for a disability, please contact the Law School at 860-570-5130 or law.access@uconn.edu at least two weeks in advance.  Eligible for CT CLE credit.

March 26, 2018 in Conferences | Permalink | Comments (0)

Tuesday, March 6, 2018

Fourth Annual Civil Procedure Workshop - Call for Papers

The Fourth Annual Civil Procedure Workshop will be held on November 9-10, 2018 at Stanford Law School.  Here's the blurb from its tireless organizers:

We are excited to announce the fourth annual Civil Procedure Workshop, to be held Stanford Law School in Palo Alto, California on November 9-10, 2018.

The CPW gives both emerging and established civil procedure scholars an opportunity to gather with colleagues and present their work to an expert audience. Scholars will present their papers in small panel sessions. A senior scholar will moderate each panel and lead the commentary. In addition to paper presentations, we intend to engage members of the judiciary and federal civil rulemaking bodies in discussions about current developments in procedure. Our ongoing goal is for the CPW to strengthen the study of procedure as an academic discipline, and to deepen ties among the academy, rulemakers, and the judiciary.

Confirmed participants for 2018 include the Hon. Diane Wood, Janet Alexander, Elizabeth Burch, Margaret Lemos, David Engstrom, Myriam Gilles, and Deborah Hensler. We welcome all civil procedure scholars to attend. Those wishing to present a paper for discussion should submit a two-page abstract by March 23, 2018.

While we welcome papers from both emerging and senior scholars, preference may be given to those who have been teaching for less than ten years. We will select papers to be presented by May 4, 2018. Please send all submissions or related questions to Norman Spaulding.

The CPW will provide meals for registrants. Participants must cover travel and lodging costs. We will provide information about reasonably priced hotels as the date approaches. Feel free to contact us with questions.

Norman Spaulding (Stanford), nspaulding@law.stanford.edu

Dave Marcus (Arizona), dmarcus@email.arizona.edu

Liz Porter (UW), egporter@uw.edu

Brooke Coleman (Seattle U), colemanb@seattleu.edu

March 6, 2018 in Conferences, Current Affairs | Permalink | Comments (0)

Wednesday, February 21, 2018

Fifty Years of Class Actions - A Global Perspective

Theoretical Inquiries in Law has just published a symposium volume on FiftyYears of Class Actions - A Global Perspective

It's chock full of interesting ideas and features a keynote from Professor Arthur Miller (NYU).  Here's the table of contents (if the PDF links below don't work, the full volume is available at the link above):

Introduction PDF
Yael Braudo, TIL Editorial Board  
Keynote Address - The American Class Action: From Birth to Maturity PDF
Arthur R. Miller  
Publicly Funded Objectors PDF
Elizabeth Chamblee Burch  
Tiered Certification PDF
Shay Lavie  
Can and Should the New Third-Party Litigation Financing Come to Class Actions? PDF
Brian T. Fitzpatrick  
The Global Class Action and Its Alternatives PDF
Zachary D. Clopton  
Class Actions in the United States and Israel: A Comparative Approach PDF
Alon Klement, Robert Klonoff  
Regulation Through Litigation — Collective Redress in Need of a New Balance Between Individual Rights and Regulatory Objectives in Europe PDF
Brigitte Haar  
Towards Collaborative Governance of European Remedial and Procedural Law? PDF
Fabrizio Cafaggi  
Class Action Value PDF
Catherine Piché  
When Pragmatism Leads to Unintended Consequences: A Critique of Australia’s Unique Closed Class Regime PDF
Vicki Waye, Vince Morabito  
Rethinking the Relationship Between Public Regulation and Private Litigation: Evidence from Securities Class Action in China PDF
Robin Hui Huang  
The Regime Politics Origins of Class Action Regulation PDF
Agustín Barroilhet

February 21, 2018 in Class Actions, Conferences, Current Affairs | Permalink | Comments (0)

Thursday, February 15, 2018

The Class Action Awakens

Hi Everyone! I am sending along a draft of a paper I have been working on for awhile that tries to make sense of the Supreme Court's recent class action decisions. Here is a link to the paper, and here is an abstract:

For the past eight terms the Supreme Court has increased its focus on the law of class actions. In doing so, the Court has revised the law to better accord with a view of the class action as an exception to an idealized picture of litigation. This “exceptional” view of the class action has had a profound impact not only on class action law, but procedural and substantive law in general. However, in the October 2015 term the Court decided three class action cases which support an alternative, “functional” view of the class action, one that does not view the class action as exceptional, but as one of many equally permissible tools to serve the objectives of substantive law. This alternative view has the potential to have a similarly significant impact on the law, but it is not certain whether the Court will further develop this alternative, especially given its most recent class action decisions. This article discusses the development of the “exceptional” view of the class action, the awakening of a “functional” alternative view, and the uncertain path ahead.

I would appreciate any comments you may have!

February 15, 2018 | Permalink | Comments (0)

Monday, October 9, 2017

Information is the Key to Enforcement: A New Case Study

A new and really fascinating case study about environmental mass tort litigation against Du Pont was posted recently by the NBER.  You can find the piece here.  It demonstrates how a company came to ignore the injuries that its product (in this case a toxin called C8) and how it can be that this decision was value maximizing for shareholders.

The bottom line answer is that the company's ability to hide information and delay payment of any penalties, combined with the relatively low exposure in tort and regulatory penalties, made it sensible because it knew it would not have to internalize the full costs of its conduct.  It demonstrates that information and secrecy is at the core of the effectiveness (or ineffectiveness) of regulation and litigation.  

October 9, 2017 in Mass Tort Scholarship | Permalink | Comments (0)

Wednesday, August 16, 2017

What duties do lead counsel owe plaintiffs in multidistrict litigation?

There is a persistent question in multidistrict proceedings: what duties do lead lawyers owe to individual plaintiffs who have no direct attorney-client relationship with them?

That's the question at the heart of a recent opinion by Judge David Herndon in the Yazmin/Yaz litigation, although the opinion itself is about whether remand to state court is appropriate. (Spoiler: Judge Herndon thinks it's isn't.)

After the negotiating parties in the underlying MDL reached a global settlement for the ATE (arterial thromboembolism) cases, Judge Herndon issued a series of orders designed to usher plaintiffs into the deal.  One of those was a Lone Pine order that required every non settling plaintiff to produce fact sheets, over three years worth of pharmacy and medical records, and a case-specific expert on general and specific causation--all within three months.  Those who didn't comply faced dismissal.

As you might guess, the plaintiffs currently suing missed that deadline and their various attorneys failed to respond to Bayer's motion to dismiss.  As such, with new counsel, they are now suing lead counsel (Micheal S. Burg, Roger Denton, Michael A. London, and Mark R. Niemeyer) for legal malpractice under Illinois common law.

What question lies at the heart of the case?  You guessed it: what duties do lead lawyers owe to non-client plaintiffs in a multidistrict proceeding?

Returning for a moment to the question of federal jurisdiction, given the way that the complaint is framed, jurisdiction appears to lie under CAFA, 28 USC 1332(d)(2) (it's pled on behalf of a class).  But the parties take different routes.  Disgruntled plaintiffs argue that it's a mass action that contains fewer than 100 people (despite it being pled as a class action), and defendants argue that it presents federal question jurisdiction under 1331.  Relying on Grable and Gunn, the court agrees.

I confess, I'm not yet convinced that these state-law malpractice claims implicate a federal issue under Grable.

Either way, as Judge Herndon (and lead lawyers) framed it, even if the dissatisfied plaintiffs sued individually, federal question jurisdiction would lie over their claims, thereby allowing defendants to remove and send it to Judge Herndon. Judge Herndon, you may recall, presided over the original claims and appointed the leaders in the first place.

There hasn't been a ton written on the fiduciary question, but Professor Charlie Silver's work comes readily to mind.  In his article, The Responsibilities of Lead Lawyers and Judges in Multidistrict Litigation, he writes:

Given that both lawyers who represent individual claimants and lawyers who handle class actions are fiduciaries, it would be surprising to discover that lead lawyers in MDLs were not. . . . Given the dearth of authority directly on point, judges may take guidance from other bodies of law.  If they do, they will quickly conclude that lead attorneys are fiduciaries.  Mass tort lawyers are fiduciaries, and so are lawyers who represent plaintiff classes.  These examples are the most analogous to lead counsel. 

My own view is similar.  Without imposing fiduciary duties on lead lawyers, all sorts of mischief could result.  Of course, whether lead lawyers in Yasmin/Yaz breached those duties in a way that amounts to malpractice is a separate question.  But, given the lengths they've taken to have the malpractice claims heard before Judge Herndon, leaders clearly think they have a much better chance there than in IL state court.

Casey et. al. v. Roger Denton, et. al. is worth following.  Here are a few of the relevant documents:

Download Casey v. Denton - 53 - 08.11.17 - Order on Motion to Remand

Download Casey v. Denton - 1 - 05.16.17 - Ex. 2 Casey Complaint

Download Casey v. Denton - 1 - 05.16.17 - Notice of Removal

August 16, 2017 in Aggregate Litigation Procedures, Current Affairs, Mass Tort Scholarship, Products Liability | Permalink | Comments (0)