Mass Tort Litigation Blog

Introducing Dukes v. Wal-Mart Stores, Inc.

Though I realize that, as an employment discrimination class action, Dukes v. Wal-Mart Stores, Inc. technically falls outside the realm of mass torts, its class action status has most proceduralists watching with interest to see whether the Supreme Court will grant Wal-Mart's petition for a writ of certiorari.  Over the next two months, Vanderbilt Law Review En Banc will be hosting a Roundtable discussion on the case that includes Robert Bone, Melissa Hart, the blog's own Alexandra Lahav, Greg Mitchell, Richard Nagareda, and Tobias Wolff.  (Richard's essay, Common Answers for Class Certification is already on SSRN.)

To set the table for that discussion, I've written a short introduction to the case itself.  To that end, I've tried to provide enough legal background on the class certification issues so that someone who's interested in the case but isn't a class action enthusiast can understand what's at stake.  I've also raised more questions than answers, forsaken many of the more nuanced arguments in favor of clarity, and tried to refrain from engaging the case's merits--as tantalizing as they are.  This short thirteen-page piece might also be of interest to those who haven't had time to wade through the Ninth Circuit's 130+ page opinion.  Here's a link to the SSRN page for "Introducing Dukes v. Wal-Mart Stores, Inc."  I'll post a link to the edited version in a few weeks.

ECB

Alabama Business and Governmental Claimants Criticize BP Payments

See the Wall Street Journal article, Spill Payments Irk Alabama Businesses, by Mike Esterl.  In reaction, BP fund administrator Ken Feinberg stated, "In light of the criticism, I am accelerating payments and being more generous."

BGS

Plaintiffs' Lawyers Vie for Lead Positions in the BP MDL

See this Wall Street Journal article, Modesty is Out as Lawyers Vie for Spot in BP Suit, by Dionne Searcey.

BGS

Supreme Court Issues A Stay in a 5th Circuit Tobacco Class Action

As per the Torts Prof Blog, Justice Scalia in his capacity as Circuit Justice for the 5th Circuit has issued a stay in Philip Morris v. Scott, a tobacco class action in Louisiana.  This was a case brought on behalf of all Louisiana smokers on a fraud theory.  Justice Scalia writes in his opinion - available here - that the Louisiana court ruled that the plaintiffs didn't need to prove individual reliance if all they were asking for was class-wide relief in the form of a smoking cessation fund.  The defendants argue that this was a violation of their due process right to present "every available defense."  Plaintiffs argue that defendants simply don't have this defense as matter of substantive law.  Importantly, Scalia writes:

The apparent consequence of the Court of Appeals holding is that individual plaintiffs who could not recover had they sued separately can recover only because their claims were aggregated with others' through the procedural device of the class action.

561 U.S. __ (2010).  If the court grants cert on this and the Dukes v. Wal-Mart case, it will be a banner term for class action scholars.  A  very nice description of the case (more thorough than I have provided) can be found on SCOTUSblog. 

ADL

Anita Bernstein on the Twin Themes of Tort Pedagogy in the 21st Century

Anita Bernstein (Brooklyn) has posted to SSRN her article, Teaching Torts: Rivalry as Pedagogy.  I've also been increasingly interested in the rise of global tort practice and have noted the rise in attention to global tort practice over the past few years; indeed, I'm now considering teaching a course entitled, Global Tort Litigation.  Here's the abstract for Anita Bernstein's article:

This contribution to a Tort Law Academic Workshop considers the ‘twin themes’ pervading torts pedagogy in the twenty-first century: (1) teaching torts for global practice and (2) teaching the common law in an age of statutes. Manifested at both transnational and national levels, the two themes have in common what may be understood as rivalries, where contrary rules and stances compete for power. The article explores illustrations of this competition that emerge in an American torts classroom, with attention to the interest that a ‘pedagogy of rivalry’ might hold for torts teachers and scholars working within common law systems outside the United States.

BGS

Brian Fitzpatrick on Whether Class Action Lawyers Make Too Little

Brian Fitzpatrick (Vanderbilt) has posted to SSRN his provocatively titled article, Do Class Action Lawyers Make Too Little?  Here's the abstract:

Class action lawyers are some of the most frequently derided players in our system of civil litigation. It is often asserted that class action lawyers take too much from class judgments as fees, that class actions are little more than a device for the lawyers to enrich themselves at the expense of the class. In this Article, I argue that some of this criticism of class action lawyers is misguided. In particular, I perform a normative examination of fee percentages in class action litigation using the social-welfarist utilitarian account of litigation known as deterrence-insurance theory. I argue that in perhaps the most common class action – the so-called “small stakes” class action – class action lawyers not only do not make too much, but actually make too little. Indeed, I argue that it is hard to see as a theoretical matter why lawyers should not receive 100% of class judgments in small-stakes cases. Of course, it is unlikely that judges in the current political climate will feel comfortable awarding class action lawyers fees equal to 100% of judgments in any type of class action, small stakes or otherwise. Moreover, it is not entirely clear that judges have the legal authority to award fees at such a level. Nonetheless, even if judges cannot award 100% of small-stakes judgments to class action lawyers due to political or legal constraints, deterrence-insurance theory suggests that they should award fee percentages as high as they can in small-stakes cases, which, by any measure, are much higher than the percentages they tend to award now. Unfortunately, deterrence-insurance theory is unable to provide judges with as much guidance in large-stakes and mixed-stakes class actions.

BGS

BP Still Faces Investigations, Lawsuits, and Fines

An article in the Wall Street Journal discusses the remaining BP's remaining challenges stemming from the Gulf Oil Spill -- governmental investigations, civil lawsuits, and fines.  The amount of fines imposed may turn on whether BP is found "grossly negligent."  With regard to lawsuits, much will depend on the extent to which Ken Feinberg can persuade potential plaintiffs to forego their legal claims in exchange for quicker compensation via the $20 billion BP claims fund.

BGS

BP Gulf Oil Well "Effectively Dead" According to White House

BGS

Zyprexia Class Action Nixed by 2d Circuit

The Second Circuit has reversed Judge Weinstein's certification of a RICO class action brought by third party payors against Eli Lilly for excessive pricing of the drug Zyprexia.  Essentially the class action was felled on the issue of causation requiring individualized proof rather than generalized proof of causation (i.e. that the defendant's misrepresentations caused plaintiffs to pay a higher price for the drug than they otherwise would have) according to the circuit court.

You can find the opinion here.  You can find the defense side take from the folks over at Drug and Device Law Blog here.

ADL (h/t Torts Prof Blog).

Toyota Settles Unintended Acceleration Lawsuit

According to an article in the Wall Street Journal, Toyota has settled, for an undisclosed amount, an unintended-acceleration lawsuit involving the deaths of four persons.  The accelerator appeared to have been caught in the floormat.  The article notes that Toyota faces about 200 unintended-acceleration lawsuits.

BGS

Simons on Statistical Knowledge

Kenneth Simons (BU Law) has posted an article entitled "Statistical Knowledge Deconstructed."  This piece looks like it will have important implications for mass torts.   The piece seems to focus on the criminal context (what level of knowledge is required for culpability) but in mass torts we struggle with the problem of the creation of increased risk of injury but the difficulty of proving individual injury when the level of culpability Simons discusses (intent) is not at issue.  Here is the abstract:

In a wide range of contexts, especially in criminal law and tort law, the law distinguishes between individualized knowledge (awareness that one’s act will harm a particular victim, e.g., X proceeds through an intersection while aware that his automobile is likely to injure a pedestrian) and statistical knowledge (awareness that one’s activity or multiple acts will, to a high statistical likelihood, harm one or more potential victims, e.g., Y proceeds with a large construction project that she predicts will result in worker injuries). Acting with individualized knowledge is generally much more difficult to justify, and is presumptively considered much more culpable, than acting with statistical knowledge. Yet the distinction is very difficult to explain and defend.

This article presents the first systematic analysis of this pervasive but underappreciated problem, and it offers a qualified defense of the distinction. Acting with statistical knowledge is ordinarily less culpable than acting with individualized knowledge, and often is not culpable at all. Expanding the spatial or temporal scope of an activity or repeating a series of acts might cause the actor to acquire statistical knowledge, but such an increase in scale ordinarily does not increase the level of culpability properly attributable to the actor. I articulate two invariant culpability principles, “Invariant culpability when acts are aggregated” and “Invariant culpability when risk-exposures are aggregated,” that formalize this idea.

Why is acting with individualized knowledge especially culpable? Part of the answer is the special stringency principle (SSP), a deontological principle that treats an actor as highly culpable, and treats his acts as especially difficult to justify, when he knowingly imposes a highly concentrated risk of serious harm on a victim. (Under SSP, speeding to the hospital to save five passengers, knowing that this will likely require killing a pedestrian in one’s path, is much harder to justify than speeding to the hospital to save one passenger, knowing that this creates a 20% chance of killing a pedestrian in one’s path.)

The analysis has a number of implications and is also subject to important qualifications: Notwithstanding the invariant culpability principles, if a faulty actor repeats his unjustifiable acts or expands his activity, that repetition sometimes reveals a new type of culpability: the defiance of moral and legal norms. Accordingly, a retributivist can indeed support a punishment premium for recidivists; in rare cases, when the actor possesses merely statistical knowledge but his conduct is extremely unjustifiable, the actor’s culpability is comparable to that of an actor with individualized knowledge; the higher culpability of acting with individualized knowledge is not explained by a supposed higher duty owed to “identifiable victims,” except insofar as that duty is a crude version of SSP; the decision by an actor to proceed with an activity after conducting a cost-benefit analysis is not, by itself, evidence of culpability, even if that analysis provides the actor with statistical knowledge that the activity will cause serious harm; a legal system can be legitimate even though legal actors within the system know that it will, as a statistical matter, punish the innocent.

ADL (h/t Torts Prof Blog)

Nagareda on The Litigation-Arbitration Dichotomy Meets the Class Action

Richard Nagareda (Vanderbilt) has posted his latest piece, The Litigation-Arbitration Dichotomy Meets the Class Action, on SSRN.  It's forthcoming in Notre Dame Law Review's annual Federal Courts, Practice, and Procedure issue.  It connects discussions taking place in various scholarly circles over arbitration and class actions.  In particular, it links the Supreme Court's recent opinions in Shady Grove and Stolt-Nielsen as well as AT&T Mobility v. Concepcion, which is currently pending before the Court. 

Here's the abstract:

Courts and commentators often conceive of litigation and arbitration as dichotomous regimes for civil dispute resolution. Two new decisions from the Supreme Court provide the occasion to rethink this conventional view. In Shady Grove v. Allstate Insurance, the Court acknowledges that a class action often alters dramatically the incidence of claiming but, for purposes of the Rules Enabling Act, the Court deems this effect to be merely “incidental.” In Stolt-Nielsen v. AnimalFeeds, however, the Court deems the use of class-wide arbitration to be such a “fundamental” change as to lie outside the authority of arbitrators in the face of contractual silence as to class treatment.

This Article – for the annual Federal Courts, Practice & Procedure issue of the Notre Dame Law Review – urges a more synthetic understanding of litigation and arbitration. For all their differences, the Court’s accounts of class treatment under the Rules Enabling Act and the Federal Arbitration Act (FAA) evidence a deep, but undertheorized, convergence. Shady Grove is the latest of the Court’s efforts to map the proper relationship between federal and state law under the Erie and Hanna doctrines. This Article explains how the Court’s arbitration jurisprudence has come to replicate key structural features of the Erie and Hanna doctrines in litigation. The Article then underscores the transnational dimensions of arbitration in our modern world of globalized commerce – one that frames in a new light the holding in Stolt-Nielsen within the context of the Court’s thinking about extraterritoriality and transnational recognition of judgments in litigation. 

The Article then turns to a case now before the Court – AT&T Mobility v. Concepcion – concerning an arbitration clause that would waive the opportunity for consumers to participate in either a class action or a class arbitration. The Article explains how the approach of the lower courts in Concepcion presents the Supreme Court with the counterpart, in the arbitration setting, to the mistaken application of state law rightly overturned in Shady Grove under the Hanna doctrine. Such a view nonetheless would afford ample latitude for contextual, Erie-like analysis of other arbitration clauses with class waivers tantamount to exculpatory clauses. The Article concludes by situating its synthetic conception of litigation and arbitration within ongoing debate over the proposed Arbitration Fairness Act.

ECB