Monday, February 11, 2019
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), email@example.com
Dave Marcus (UCLA), firstname.lastname@example.org
Liz Porter (UW), email@example.com
Brooke Coleman (Seattle U), firstname.lastname@example.org
Friday, February 8, 2019
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.
Thursday, February 7, 2019
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.
Wednesday, February 6, 2019
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.
Tuesday, December 4, 2018
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 email@example.com rather than my University of Georgia email.
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
Article in the Wall Street Journal -- Judge Reduces Jury Award Against Bayer's Roundup to $78.5 Million, by Sara Randazzo and Jacob Bunge.
Tuesday, October 2, 2018
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).
Monday, March 26, 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
- 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 firstname.lastname@example.org at least two weeks in advance. Eligible for CT CLE credit.
Tuesday, March 6, 2018
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), email@example.com
Dave Marcus (Arizona), firstname.lastname@example.org
Liz Porter (UW), email@example.com
Brooke Coleman (Seattle U), firstname.lastname@example.org
Wednesday, February 21, 2018
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):
|Yael Braudo, TIL Editorial Board|
|Keynote Address - The American Class Action: From Birth to Maturity|
|Arthur R. Miller|
|Publicly Funded Objectors|
|Elizabeth Chamblee Burch|
|Can and Should the New Third-Party Litigation Financing Come to Class Actions?|
|Brian T. Fitzpatrick|
|The Global Class Action and Its Alternatives|
|Zachary D. Clopton|
|Class Actions in the United States and Israel: A Comparative Approach|
|Alon Klement, Robert Klonoff|
|Regulation Through Litigation — Collective Redress in Need of a New Balance Between Individual Rights and Regulatory Objectives in Europe|
|Towards Collaborative Governance of European Remedial and Procedural Law?|
|Class Action Value|
|When Pragmatism Leads to Unintended Consequences: A Critique of Australia’s Unique Closed Class Regime|
|Vicki Waye, Vince Morabito|
|Rethinking the Relationship Between Public Regulation and Private Litigation: Evidence from Securities Class Action in China|
|Robin Hui Huang|
|The Regime Politics Origins of Class Action Regulation|
Thursday, February 15, 2018
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!
Monday, October 9, 2017
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.
Wednesday, August 16, 2017
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:
Monday, August 7, 2017
Bellwether trials are a mass tort phenomenon that is often reported in the media, but too often journalists put more emphasis on an individual trial or even a small set of trials than is warranted. This post tries to explain why more care and nuance is needed in reporting on these trials.
A bellwether is a kind of test trial, a vehicle for the judge and the parties to obtain information about a mass litigation in order to settle a large number of lawsuits at once. That settlement might happen through a settlement matrix, in groups as lawyers settle their "inventory" of cases, through a class action, or all three. Often cases where we see bellwether trials are MDLs -- multi-district litigation that has been transferred to a single federal judge for resolution. If you are a journalist writing about complex litigation, all this will be familiar to you.
Trial verdicts in bellwether cases seem like they should be big news. After all, if the case really is "representative" of the run of cases then the verdict should help us predict what will happen in settlement. It can help us understand what risks a company faces, for example.
The problem is, that bellwether trials will rarely tell you what the run of cases are like or how they will come out. This is true for several reasons. It is good to keep them in mind when you are reporting on bellwether trials:
1. Mass tort cases are often heterogenous. The bellwether trial is just one trial out of a larger, varied group. Even if everyone was injured by the same toxin or drug or product, they likely different injuries and different levels of injury. So picking one of them doesn't tell us much about the others. The same is true not only for the injury itself but for other elements of the legal claim, especially causation.
2. Bellwether cases are picked by the parties. The parties try to pick their best cases. For defendants this means cases they are likely to win; same for plaintiffs. So we would expect bellwether cases to be outliers. They do not necessarily reflect the run of cases. What do we (the public) know about the run of cases in the litigation? Often very little. The parties tend to know a lot, but they are not likely to share that information. We can assume that the cases are varied. See point #1.
3. The universe of cases is not always the universe of cases. This is because cases will settle. A defendant might decide that it is in its best interest to settle out the most high value cases, leaving low value cases to be tried. This might create the misleading appearance that the run of cases are very low value, and that there is little litigation exposure for the defendant. It is important to ask about what cases have been settled as well as what cases are tried.
4. The trial verdict is not the outcome. One reason is that cases will settle. For example, the parties may have reached a high-low settlement before trial, so that the defendants' payout has a ceiling above which it need not pay and the plaintiff has a floor, below which he or she will not lose. Another reason is that cases will be appealed. Or retried. Or the verdict remitted. Reports of high verdicts without nuance are shocking and exciting, but they misrepresent what really goes on in the justice system.
When you report on bellwether trials and there is an exciting verdict -- either because the defendant won or the plaintiff did -- I hope you will remember that while it is very interesting how the bellwether came out, it doesn't really tell us very much about the defendant's exposure.
Sunday, August 6, 2017
Professor James Henderson (Cornell Law) has posted to SSRN his article, The Impropriety of Punitive Damages in Mass Torts, 52 Ga. L. Rev. (forthcoming). Here is the abstract:
Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.
Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.
Saturday, July 29, 2017
Friday, July 28, 2017
Bruce Kaufman, at Bloomberg BNA, has posted an update on class action and MDL legislation pending in the Senate. The bottom line is that these reforms seem to have stalled (and rightly so, I might add).
As Kaufman writes:
The bills, two of which still lack Senate sponsors, are:
The Fairness in Class Action Litigation Act and Furthering Asbestos Claims Transparency Act ( H.R. 985) affects nearly all facets of class action practice, and mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies. It passed the House March 9 by a 220-201 vote.
The Innocent Party Protection Act ( H.R. 725) targets what is known as fraudulent joinder—the improper addition of local defendants to suits in a bid to keep cases in more plaintiff-friendly state courts. It passed the House March 9 by a 224-194 margin.
The Lawsuit Abuse Reduction Act ( H.R. 720; S. 237) requires judges to impose mandatory sanctions on attorneys who file “meritless” civil cases in federal courts. It passed the House March 10 by a 230-188 margin.
Kaufman's full article is available here: https://www.bna.com/businessfriendly-litigation-overhaul-n73014462386/
Sunday, July 23, 2017
Skadden Arps has posted its Class Action Chronicle for Summer 2017, which includes updates on Third-Party Litigation Funding, Class Certification Decisions, and Class Action Fairness Act Decisions.
Saturday, July 15, 2017
Judge Jack Weinstein of the Eastern District of New York, who is noted for his opinions in many mass torts including Agent Orange, has surpassed 50 years on the bench. Shibani Gokhale, At 95, Weinstein Keeps Going After 50 Years on Bench, Law.com (July 13, 2017).