Mass Tort Litigation Blog

Toyota MDL Plaintiffs' Mgmt Committee Appointed

BNA Class Action Litigation Report has the latest.  The personal injury piece will be led by Elizabeth Cabraser of Lieff Cabraser Heimann & Bernstein of San Francisco and Mark P. Robinson Jr. of Robinson, Calcagnie & Robinson in Newport Beach, Calif.  The economic loss piece will be led by Frank M. Pitre of Cotchett Pitre & McCarthy in Beverly Hills and Marc M. Seltzer of Susman Godfrey in Los Angeles. 

See In re Toyota Motor Corp. Unintended Acceleration Marketing, Sales Practices, and Products Liability Litigation, C.D. Cal., No. 8:10ML151, 5/14/10.  For those interested in following the litigation, the Central District of California has posted opinions in the case here. 

ADL

Size of BP Leak Larger Than BP Earlier Estimated

BP had been saying 5,000 barrels a day had been leaking into the Gulf, but the clean-up siphon is itself now pulling up 5,000 barrels a day and the siphon is only reaching a portion of the escaping oil.  For more, see the CNN story, BP: Oil gusher bigger than we estimated.

And here's some recently released video of the BP rig on fire after the initial explosion.

BGS

Mass Tort Crisis Management

Recent crises stemming from BP's oil spill and Toyota's acceleration problems have brought a swarm of media coverage, congressional hearings, regulatory agency activity, corporate news conferences, and lawsuits.  Indeed, theories of liability may stem not only from the initial traumatic incident or incidents, but from the corporation's putative mishandling of the crisis once it unfolds.  On the corporate side, what's called for is thoughtful and coherent crisis management that moves the corporation through the crisis in a way that resonates with corporate core values, thereby maintaining the value of the ongoing enterprise, and that is mindful of impending theories of liability.

Despite the great need for such a coherent approach to mass tort crisis management, what's remarkable is the apparent paucity of attention given the subject by legal scholars.  That may be because crisis management involves public relations and communications, as well as management and leadership; hence crisis management has been the focus of public relations consultants and some professors in communications schools and business schools.  But at the heart of corporate crises are frequently the law and liability, so law professors should not be absent.  Lawyers and law firms already occasionally promote their ability to handle an emerging corporate crisis by quickly assembling a team of lawyers from a broad array of areas -- see, e.g., Skadden's Crisis Management; and lawyer practitioners have delivered various continuing education talks and papers on crisis management, as well as an interesting short symposium paper by Harvey L. Pitt and Karl A. Groskaufmanis, When Bad Things Happen to Good Companies: A Crisis Management Primer, 15 Cardozo L. Rev. 951 (1994).  But while practitioners bring on-the-ground expertise, they may lack the theoretical depth and interdisciplinary zeal of law professors, and practitioners present a conflict-of-interest risk in preferring, for example, fee-heavy litigation over other methods of mass tort crisis management and resolution.  A full academic account of mass tort crisis management would entail an awareness and integration of various legal areas -- tort, procedure, litigation, ethics, regulatory action, congressional investigations and activity (including possible compensation funds), and pertinent constitutional issues -- with public relations and management.  I look forward to turning my attention increasingly to that task.

Where do you look for corporate crisis management expertise in mass torts?  Books, articles, law firms, or consultants?  Does your law firm market itself as offering corporate crisis management; if so, what's your approach?  If you work at a consulting group that does crisis management, do you have in-house lawyers that assist you or do you work with the corporation's outside counsel?  Feel free to post a resource or comment.

BGS

Walter Olson Joins Cato

Walter Olson, formerly of the Manhattan Institute, and known widely for his blogging on Overlawyered and Point of Law, has joined the Cato Institute as a Senior Fellow.  Cato's legal research has for some time focused on constitutional issues, and I hope Walter will expand their purview into broader issues of liability and litigation, including mass torts.  One wonders, for example, what position Cato, as a libertarian think tank, might take on regulatory preemption of private lawsuits; there may be interesting differences on such issues between Cato and the less-strictly-libertarian American Enterprise Institute.  For an interesting debate between Professors Richard Epstein and Rick Hills (both of NYU) on regulatory preemption of private lawsuits, see here.  Best wishes to Walter at Cato!

BGS

I Call Shotgun!

The article referenced by Beth Burch below reads like a who's who of mass tort and class action litigation.  But really the reason for this post was the nerdy title. 

h/t Robin Effron at the Civil Procedure Blog. 

ADL

Plaintiffs' Attorneys Jockey for Lead Position in Toyota Litigation

Today's Wall Street Journal has an article about the plaintiffs' attorneys jockeying for the lead position in the Toyota MDL.  The litigation has been consolidated in front of U.S. District Court Judge James Selna of Santa Ana, California.  The applicants listed qualifications range from receiving the key to the City of Miami to speaking to Japanese engineers 15 years ago to donating kidneys to inventing healthy doughnuts.  WSJ's Law Blog has a short post on it as well.

ECB

Link to WTC Settlement

For readers interested, the WTC settlement and various documents can be conveniently found on the Napoli Bern Ripka LLC website here:

http://www.nbrlawfirm.com/blog/read_blog/213/wtc-respiratory-illness-law

I think its a great public service that the firm is being transparent about the agreement and these motions by posting them online.

ADL

Profile of WTC Litigation Judge in the NYTimes

Mireya Navarro of the New York Times wrote an article published on Sunday about Judge Alvin Hellerstein who is overseeing the 9/11 World Trade Center Disaster Site litigation, and who now famously came out against the proposed settlement in that case.  The article is called "Empathetic Judge in 9/11 Suits Seen By Some As Interfering." 

The theme of the article is Judge Hellerstein's empathy for these special victims.  Some legal experts, Navarro  writes, say that he was acting outside of his judicial capacity -- "such intervention is not the norm outside the class action."

While Judge Hellerstein's actions in this case are very public and the subject of a great deal of interest, its not clear to me that there is a difference between what he did and what judges usually do.  As I see it, the litigants here (or the lawyers more precisely) are trying to put together the kind of settlement that Merck and the plaintiffs lawyers were able to put together in Vioxx.  In that case, the litigants sought Judge Fallon's approval for the settlement, which was controversial.  Judge Fallon's approval - especially because he is a thoughtful, intelligent and well-respected federal judge - was critical to the success of that settlement.  I asked him once why, if it wasn't a class action, his approval was needed.  He replied in sum and substance that the parties wouldn't proceed without his approval.

The WTC lawyers wanted Judge Hellerstein's approval for the same reasons the Vioxx lawyers did - he is a thoughtful, intelligent and well respected federal judge.  His approval of the settlement would give it gravitas; it would make plaintiffs whose lawyers weren't involved in drafting it want to sign on; it would make plaintiffs who had no way of knowing what they would get at the end of the day agree to buy a pig in a poke because they could trust the process.  The lawyers didn't get the Judge's sign-on.  It seems that with their appeal to the Second Circuit they are saying he acted beyond the scope of judicial power now that they got a response from the judge that they didn't like.   

But how is this different than a settlement conference in an ordinary case when the judge opines that a settlement is not giving the plaintiff enough?  After all, the parties came to Judge Hellerstein.  They could settle the cases individually and dismiss them one after the other as settlement is reached.  If they chose to dismiss their individual cases, its not clear to me that there is anything Judge Hellerstein could do other than to tell the client he thought that was a bad idea.  But if the lawyers want an aggregate settlement and they want a Judge to give them legitimacy, then they have to face the reality that he will only legitimate a settlement he thinks is appropriate under the circumstances. 

EDITED TO ADD:  You can find the documents regarding the appeal on the Napoli Bern website.

ADL