Mass Tort Litigation Blog

Nagareda on Common Answers for Class Certification

Richard Nagareda (Vanderbilt) has posted his latest piece, Common Answers for Class Certification, on SSRN.  The essay is part of a roundtable on Dukes v. Wal-Mart that will be published in En Banc, Vanderbilt Law Review's new on-line counterpart.  Here's the abstract:

This Essay for the Vanderbilt Law Review En Banc roundtable on Dukes v. Wal-Mart Stores, Inc. focuses on new developments in the law of class action certification. Prior to Dukes, the federal appellate courts had been gravitating toward a consensus on the parameters for judicial rulings on class certification. Under this emerging consensus view, the court is obligated to determine – under a preponderance-of-the-evidence standard and with no preclusive effect on the merits – whether the pertinent requirements for class certification have been satisfied. But the court has no authority to conduct a free-floating inquiry into the plaintiffs’ likelihood of success on the merits, unrelated to a class certification requirement. Dukes unsettles this emerging consensus, positing that courts may not withhold class certification as long as plaintiffs put forward a triable case as to the existence of a common, class-wide course of misconduct by the defendant. Under this view, the court may not determine whether the alleged class-wide course of misconduct more likely than not exists – even for the limited purpose of ruling on class certification – for fear of intrusion into the role of the fact finder at trial.

This Essay first explains why Supreme Court review is warranted in Dukes, above and beyond the usual concern over splits among the federal appellate courts. The Essay then observes that Dukes is part of a larger category of cases in recent years that involve class certification disputes centered on aggregate proof – in Dukes, primarily an analysis of Wal-Mart’s hourly work force, said to reveal statistically significant differences in pay and promotions across male-female lines. 

The bulk of the Essay spotlights the crucial conceptual error in Dukes: the majority’s confusion between motions for class certification and the motion that really does regulate the relationship between the court and the fact finder (summary judgment). Drawing on illustrations from class certification decisions in securities fraud, antitrust, and RICO litigation, the Essay explains how confusion between class certification and summary judgment can lead to both judicial underreach (as in Dukes) and judicial overreach (as in some decisions from other circuits). Supreme Court reversal in Dukes would lend clarity and consistency to the law of class certification, but in a way that would not cut uniformly for or against either plaintiffs or defendants across the gamut of civil law.

ECB

In Memoriam - Benjamin Kaplan

Benjamin Kaplan had a very distinguished career (you can read some highlights here at the HLS press release).  He was also the Reporter on the Rules Committee in 1966 when the class action rule was passed. I had the honor of interviewing him about Rule 23 back in 2005.  He was gracious, thoughtful and whip smart. 

Kaplan's view was that the class action device was not appropriate for torts cases, chronicled among other places in Judith Resnik's article "From Cases to Litigation." 

ADL

Comparing the 9/11 Fund and the Oil Spill Fund

Michael Cooper has an article in the NYTimes about the two entitled "Spill Fund May Prove as Challenging as 9/11 Payments."

Richard Nagareda (Vanderbilt) is quoted as saying: "Although he had a very difficult time placing a dollar value on human life, in some way that was a more straightforward job than estimating the long-term harm to a shrimper’s business." 

In both cases, I think, you have a situation where Feinberg is asked to monetize things that are very hard to monetize and about which people have strong and conflicting opinions - but that is what our tort system asks juries to do all the time.  I've recently written on this issue in a piece called "Rough Justice" - an earlier draft is available on SSRN and I plan to post a revision soon.

The NYT article also raises the prospect of fraudulent claims.  The 9/11 Fund was manageable in this regard because, as the paper quotes Feinberg “You’ve got verification of death."

ADL

BP Oil Spill Fund to Go Into Operation on Aug. 23, Receives Claims From All 50 States

Bloomberg Businessweek has a thorough article by Jim Snyder, looking at the issues of compensation and remoteness of claims.  So far, BP has paid out $352 million in emergency payments for 114,100 claims, and BP has received a total of 142,400 claims.

BGS

David Wilkins on Globalization, Technology, and the Legal Profession

At the ABA annual meeting on Monday, Professor David Wilkins (Harvard) delivered a fascinating, far-reaching lecture on legal-profession trends, including globalization and technology.  While he only briefly mentioned "tort," the changes he discussed are already appearing in the increase in cross-national mass tort litigation.  In the United States, the growth of mass tort litigation stemmed from increasingly national products, national advertising, and nationally dispersed injured victims.  As markets go global, so too do the problems that lead to mass torts.  The rise of Western-style legal cultures and lawsuits in Asia will likely increasingly turn those mass torts into mass tort litigations -- which will in turn mean that plaintiffs' lawyers will coordinate not just nationally, but internationally; and companies will increasingly turn to defense lawyers as lead counsel not just nationally, but internationally.  (For background, see my 2005 article on litigation networks in the U.S.)  Here's Professor Wilkins' address:

BGS

Rosenberg & McCloud on Choice-of-Law and Class Actions

David Rosenberg (Harvard) and Luke McCloud have posted their latest article, A Solution to the Choice-of-Law Problem of Differing State Laws in Class Actions: Average Law, on SSRN.  Here's the abstract:

In this essay, we show why and how to apply the average of differing state laws to overcome the choice-of-law impediment currently blocking certification of multi-state federal diversity class actions. Our main contribution is in demonstrating that the actual law governing a defendant’s activities involving interstate risk is in every functionally meaningful sense the same regardless of whether it is applied in disaggregated form state-by-state at great cost or in aggregated form on average at far less cost. We refute objections to using the average law approach, including that average law subjects defendants to a law of which they lacked notice at the time of the underlying conduct; fails to accurately reflect and enforce the substantive differences among the governing state laws; and undermines the sovereign lawmaking power of states to enact their distinctive policy preferences. To facilitate use of the average law approach, we also sketch the means for practically implementing the average law solution in different types of class action to determine a defendant’s aggregate liability and damages.

ECB

BP Litigation, Compensation Fund, and Ken Feinberg

The current issue of the ABA Journal has a couple of interesting pieces on the BP litigation: The Price of Oil and The Go-To Mediator.

BGS

New Orleans Judge Carl J. Barbier to Hear BP Oil Spill Cases

Yesterday the Judicial Panel on Multidistrict Litigation issued its much awaited opinion sending the BP Oil Spill cases to New Orleans Judge Carl J. Barbier.  These cases include 77 cases from Louisiana, Alabama, Florida, Mississippi, and Texas.  As the Panel explained in its short opinion, "if there is a geographic and psychological 'center of gravity' in this docket, then the Eastern District of Louisiana is closest to it." (Op. at 3)  

This decision makes it much easier for plaintiffs to participate in the litigation process.  Participating in the court process and in any plaintiffs' group meetings is an important part of procedural justice.  As Ken Feinberg explained in administering the September 11 Victim Compensation Fund, "[g]iving people the opportunity to be heard is very important in helping them cope and move on the best they can." (Tracy Breton, Payments Pending for Fire Victims, Providence J. Bull. Aug. 3, 2008, at 1)  The same is true for the oil spill victims.  Although people litigate for various reasons including money, I suspect that holding BP publicly accountable is certainly part of the motivation behind these suits. 

The Panel sent the shareholder litigation cases to Judge Keith P. Ellison in Houston.  

Here's a round up of stories on the Panel's opinion from around the web:  N.Y. Times, National Law Journal, and Bloomberg.

ECB  

Kent Syverud and John Martin, Jr. Named as BP Fund Trustees

Today's National Law Journal has an article about the two new trustees named to BP's $20 million fund:  Kent Syverud is currently the dean of Washington University School of Law and is a former dean of Vanderbilt University Law School; John Martin, Jr. is now a partner at Martin & Obermaier in New York and served as a judge in Southern District of New York from 1990-2003.  Here's a link to BP's statement.

ECB

NYTimes Article on Plaintiff Disappointment with 9/11 Settlement

The NY Times' Mireya Navarro has a long article today entitled "9/11 Settlements Bring Moment of Reckoning" about the disappointment of many plaintiffs in the WTC Disaster Site Litigation with the settlements they are being offered.  The settlements take account both of the severity of the injury and the possibility that causation can be proven in court, leaving many with cancer or who have died of cancer getting less than they expected or hoped for. 

A very important twist to the 95% agreement requirement in the settlement is the effect that is having on some plaintiff's decision to settle or not to settle.  One is quoted as saying: "“It weighs heavy on one’s mind that your decision would impact the compensation of those who are sick, because if you don’t get 95 percent you’re not going to settle.”

Another interesting theme that comes out of the article is the expressive uses of the lawsuit for plaintiffs.  One plaintiff who is taking a settlement of approximately $11,000, the article explained "To him, the legal battle was never about the money but about calling attention to the health consequences suffered by those “who stepped up to the plate” after the terrorist attacks."

ADL