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)

Monday, August 7, 2017

For Journalists Reporting on Bellwether Trials

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.

See this article in the New York Law Journal as an example of what journalists should do when reporting on bellwether trials.    If you want to know more, you can check out my primer for judges on SSRN. 

 

August 7, 2017 | Permalink | Comments (0)

Sunday, August 6, 2017

James Henderson on the Impropriety of Punitive Damages in Mass Torts

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.

August 6, 2017 in Mass Tort Scholarship, Products Liability | Permalink | Comments (0)

Recent Judicial Panel on Multidistrict Litigation Hearings in Los Angeles

Saturday, July 29, 2017

WSJ Article on the Waning of the Era of Tort Lawsuits

Article in the Wall Street Journal -- We Won't See You in Court: The Era of Tort Lawsuits is Waning, by Joe Palazzolo.

July 29, 2017 in Lawyers, Procedure, Products Liability | Permalink | Comments (0)

Friday, July 28, 2017

Legislative Update on HR 985, 725, and 720

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/ 

July 28, 2017 in Current Affairs | Permalink | Comments (0)

Sunday, July 23, 2017

Skadden Summer 2017 Class Action Chronicle

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.

July 23, 2017 in Aggregate Litigation Procedures, Class Actions, Lawyers, Procedure | Permalink | Comments (0)

Saturday, July 15, 2017

Judge Weinstein, 50 Years on the Bench

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).

July 15, 2017 in Aggregate Litigation Procedures, Lawyers, Procedure, Products Liability | Permalink | Comments (0)

Friday, June 2, 2017

A Note to Mass Tort Plaintiffs on HR 985

HR 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, has now passed the House and is pending in the Senate's Committee on the Judiciary.  How might that bill affect plaintiffs involved in mass torts like mesh, Essure, Yaz, Mirena, NuvaRing, Ortho Evra, Power Morcellator, or the many hip implant suits?

Simply reading the bill, I'm afraid, won't help too much.  It's shrouded in legalese.  As such, I've marked up the bill to explain in non-legalese which provisions help and hurt mass-tort victims and consumers.

Many of the class action provisions in HR 985 don't affect mass-tort plaintiffs at all since those lawsuits rarely proceed as class actions (albeit, there are some notable exceptions, like the NFL concussion cases and the injuries incurred during the clean-up of the BP oil spill; both litigations were certified as settlement class actions).  

There is, however, a possibility for judges to use class actions as a means to step in and ensure that plaintiffs are being adequately represented (and that resulting settlements are fair, reasonable, and adequate).  How?  Through the issue class action.  Unfortunately, as HR 985 is currently written, it would completely eliminate that possibility.  

I've studied MDLs for many years now and have written articles that are critical of both repeat player plaintiffs' attorneys and the manner in which judges sometimes handle these cases. Over the past four years, I've collected data on and analyzed 73 multidistrict proceedings.  Although I'm still in the process of writing a book about my findings, one thing has become glaringly clear to me: the systematic lack of checks and balances in our courts seem to profit everyone but the plaintiffs.

Analyzing the deals repeat players make, the “common-benefit” attorneys’ fees that the lead plaintiffs’ attorneys receive to run the proceedings, and the judicial rulings in mass-tort cases consolidated over 22 years and settled over 12 years reveals a disturbing pattern: repeat plaintiff and defense attorneys persistently profit from the current system.

Corporate defendants end sprawling lawsuits and lead plaintiffs’ lawyers broker deals that reward them handsomely and sometimes pay litigants very little. For example, in litigation over the acid-reflux medicine, Propulsid, only 37 of 6,012 plaintiffs (0.6 percent) recovered anything through the strict settlement program. Their collective recoveries totaled no more than $6.5 million. Yet, the lead plaintiffs’ attorneys received over $27 million in common-benefit attorneys’ fees, vividly illustrating the worry that a corporate defendant might trade higher fees for less relief to plaintiffs.

So, is reform needed?  Absolutely.  Is HR 985 the right ticket?  No, not as it's currently written.

As such, I've marked up the bill in a way that begins to instill the necessary reforms and eliminates (or changes) provisions that set up further (and unnecessary) roadblocks for plaintiffs.  It also explains what the proposed provisions do in plain English:  Download HR985 Burch Mark-up

If you want some version of HR 985 to pass, please consider forwarding this revised version to your Senator and do not support the bill as it reads now.

For those who care more about the legalese, I was contacted by a House subcommittee to provide nonpartisan, academic commentary on the bill, which I did.  That write up is included here (note, however, that this is a commentary on the original House bill and some changes have been made to the current bill that address a few of the concerns I raised):  Download Burch Final Comments on Fairness in Class Action Litigation Act

There's no need to take just my word for it, though.  Every other academic that I know of opposes this bill, as has the Federal Rules Committee.  This committee, formally known as the Committee on Rules of Practice and Procedure, just happens to include Neil Gorsuch, now Justice Gorsuch (of the U.S. Supreme Court), whose views are reflected in the letter below as well.

Here's a link to that letter:  Download Federal Rules Committee Letter
As well as to the American Bar Association's letter opposing HR 985:  Download ABA's Letter on HR 985

And here are links to other academic commentary - 

Professor John C. Coffee, Jr. (Columbia Law School):  Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Professor Howard Erichson (Fordham Law School):  Download Erichson-hr985-letter
Professor Myriam Gilles (Cardozo Law School):  Download Gilles Letter to James Park on HR 985

June 2, 2017 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Settlement | Permalink | Comments (0)

Friday, May 12, 2017

Iowa Class Action Against Grain Plant Affirmed

An Iowa class action (subject to CAFA's local class exception) has been approved by the Iowa Supreme Court.  Here is the report from Iowa radio.   You can find the opinion here: Freeman v. Grain Processing Corporation.  

The court considers arguments that individual defenses ought to defeat class certification, as well as arguments based in the Supreme Court's opinions in Wal-Mart and Tyson Foods and rejects them.  It explained: 

GPC argues that class certification will deny it the fair opportunity to contest whether individual homeowners have suffered injury or damage. We disagree. The plaintiffs have proposed a formula for damages. GPC can contest the appropriateness of that formula before the jury. If a special jury verdict is entered approving this formula and that verdict is supported by substantial evidence, then potentially this formula can be used in subsequent claims administration by the court while preserving GPC’s due process and jury trial rights. If no damage formula is approved, then there would have to be subsequent individual trials on damages. Either way, GPC’s rights would be protected.  (33)

One additional aspect of the case is worth noting.  The Court specifically differentiates this nuisance class action, which alleges injury in the form of property damage, from a personal injury action and distinguishes some federal precedent on that basis.  As I show in a forthcoming article in NYU Law Review called Mass Tort Class Actions: Past, Present and Future, that is a common pattern for mass tort classes that have been certified for litigation. For example, the first asbestos class actions certified were property damages classes.  In that article, I review all the mass tort class actions considered by the federal court from the promulgation of the class action rule through Amchem, and explain how they relate to developments in tort law during the same period.  I will be posting this article to SSRN in July.

 

May 12, 2017 in Aggregate Litigation Procedures, Class Actions, Environmental Torts, Mass Tort Scholarship | Permalink | Comments (0)

Wednesday, April 26, 2017

BMS v. California - Oral Argument Yesterday

Yesterday the Supreme Court held oral arguments in a personal jurisdiction case involving purchasers of the drug Plavix who bought the drug in Ohio but wanted to join a suit in California where the company does almost 1 billion dollars worth of business.  There is a marvelous amicus in the case by Alan Morrison who argues for a new test for personal jurisdiction.  Its a "must read" for those of us who think about civil procedure or teach mass torts.

Here is a link to the brief.

 

April 26, 2017 | Permalink | Comments (0)

Tuesday, April 4, 2017

HR 985 and Congress's Judicial Mistrust

With everything else that's dominated the news, it's easy to place the "Fairness in Class Action Litigation Act" on the back  burner. But to forget that it's still an active bill (having now passed the House and pending before the Senate) would be a mistake.

Professor Myriam Gilles (Cardozo) and I recently published an op-ed with Bloomberg Law, which appeared in yesterday's Product Safety & Liability Reporter and will be in next week's Class Action Litigation Report titled Congress's Judicial Mistrust.  You can read it here:  Download Bloomberg Law - Congress's Judicial Mistrust.

We explained our legal positions more fully in our respective letters to the House Judiciary's subcommittee.  Download Burch Final Comments on Fairness in Class Action Litigation ActDownload Gilles Letter to James Park on HR 985.

 

April 4, 2017 in Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0)

Friday, March 17, 2017

Zimmerman on Bellwether Settlements

Adam Zimmerman has posted his new article "Bellwether Settlements" to SSRN.  The abstract is below:

This Article examines the use of bellwether mediation in mass litigation.
Bellwether mediations are different from “bellwether trials,” a practice
where parties choose a representative sample of cases for trial to determine
how to resolve a much larger number of similar cases. In bellwether
mediations, the parties instead rely on a representative sample of settlement
outcomes overseen by judges and court-appointed mediators.

The hope behind bellwether mediation is that different settlement
outcomes, not trials, will offer the parties crucial building blocks to forge a
comprehensive global resolution. In so doing, the process attempts to (1)
yield important information about claims, remedies, and strategies that
parties often would not share in preparation for a high-stakes trial; (2) avoid
outlier or clustering verdicts that threaten a global resolution for all the
claims; and (3) build trust among counsel in ways that do not usually occur
until much later in the litigation process.

The embrace of such “bellwether settlements” raises new questions about
the roles of the judge and jury in mass litigation. What function do courts
serve when large cases push judges outside their traditional roles as
adjudicators of adverse claims, supervisors of controlled fact-finding, and
interpreters of law? This Article argues that, as in other areas of aggregate
litigation, courts can play a vital “information-forcing” role in bellwether
settlement practice. Even in a system dominated by settlement, judges can
help parties set ground rules, open lines of communication, and, in the
process, make more reasoned trade-offs. In so doing, courts protect the
procedural, substantive, and rule-of-law values that aggregate settlements
may threaten.

March 17, 2017 | Permalink | Comments (0)