Mass Tort Litigation Blog

Senate Considers 9/11 First-Responder Health Bill

As this article on CNN notes, the United States Senate continues to consider the proposed 9/11 first-responder healthcare bill, championed particularly by Senator Schumer of New York. 

BGS

Bellwether Trials and "Sabotage"

Cue the music. 

Drug and Device law blog has a post about plaintiffs sabotaging bellwether trials when the cases picked to be bellwethers are not to their liking.  As I have written elsewhere, the informational bellwether processes used by courts are flawed.  In particular, letting either party pick the bellwether trials is a recipe for a biased sample.  For more on what a rigorous and appropriate method of informal bellwether trials would look like, see my piece Rough Justice. 

The folks over at D&D, because they are defense lawyers, propose that they get to pick the bellwethers if the plaintiff backs out and his case is dismissed with prejudice.  This makes no sense, of course, because it would just skew the sample in defendant's favor.  The only way to do this is for the court to randomly select cases, including back up cases.  This way there is a sample of cases if plaintiff's case is dismissed for failure to prosecute, as apparently happened in the FEMA Trailers case, or if defendants settle the bellwether cases they don't want to see tried. 

H/T Torts Prof Blog.

ADL

 

U.S. Sues BP Over Gulf Oil Spill

Possible civil penalties range from $5.4 billion to $21 billion, and criminal charges might still be subsequently brought.  Here's the CBS television report from Jan Crawford:

 

BGS

Judicial Hellholes 2010 report released by ATRA

The American Tort Reform Association each year releases a report on the jurisdictions that it considers the most plaintiff-friendly in the nation.  The 2010 honorees are (1) Philadelphia, (2) California, particularly Los Angeles County and Humboldt County, (3) West Virginia, (4) South Florida, (5) Cook County, Illinois, and (6) Clark County, Nevada.  The additional "watch list" includes traditional favorites Madison County, Illinois; Atlantic County, New Jersey; St. Landry Parish, Louisiana; and St. Clair County, Illinois; as well as the District of Columbia, New York City and Albany, New York.

Is it just me, or does the "hellhole" label feel outdated?  Of course some jurisdictions tend to be more favorable for either plaintiffs or defendants, given that there are meaningful variations in laws, jury demographics, and judicial selection processes.  That's why forum-shopping won't disappear anytime soon as a favorite activity of litigation strategists.  But the heyday of the "magnet courts" in Madison County, the Gulf Coast, and the Rio Grande Valley seems like a long time ago.  Not only has the tort reform movement been successful at achieving changes in Madison County and other jurisdictions, but CAFA has made it easy to remove large-scale class actions to federal court and thus has reduced concerns about certification of nationwide class actions in state courts.

ATRA's 2010 list is weighted toward some of the biggest legal markets in the U.S.:  Philadelphia, Los Angeles, Miami, Chicago, New York and Washington.  This gives the report a different flavor.  Rather than primarily calling attention to relatively small counties with truly renegade judges and juries, the 2010 report seems heavily focused on cases in which judges conducted consolidated trials, denied motions to dismiss, or otherwise took actions that were not in defendants' favor. 

To those who follow mass tort litigation, it is interesting to see which jurisdictions are perceived by defendants and the insurance industry as the most threatening.  For this, the ATRA report is worth reading, even if it is anecdotal rather than data-driven.  But the hyperbole of the "hellhole" label gets in the way of taking the report as seriously as its proponents would like.

HME

How Do the Justices Feel About Class Actions?

In a recent post I suggested that Justice Ginsburg is hostile to class actions, based on her dissent in Shady Grove v. Allstate, a case decided last term.  I was reading the Brief of Civil Procedure and Complex Litigation Professors in Support of Respondents in AT&T v. Concepcion yesterday and found there a coherent argument that in fact Justice Ginsberg has not been hostile to consumer class actions. The brief provides a very cogent argument in defense of the class action.  In fact, it would make a rather nice starting point for a class discussion on the subject.

If anyone else has any insights into the views of the various justices on the issue, I'd be interested in hearing them.

ADL

Feinberg to Pay "Bonus" for Release of Some Claims

John Schwartz at the New York Times reports that Ken Feinberg is offering to pay additional sums to those recipients of emergency funding willing to release their claims. Apparently people whose emergency funding fully compensated them can get an additional $5,000 for individuals and $25,000 to release their claims, promising BP that they will not sue.  Feinberg "suggested that the likeliest candidates for the payment might be those who had received emergency funds and had determined that their losses have already been fully covered by the BP fund, or who believe they will not be able to properly document further losses."

The article reports that the fund will provide free legal advice and perhaps additional help in filling out forms to claimants.

ADL

 

The Coming Revolution in Class Actions

This term the Supreme Court has granted cert in three class action cases and each case has a far reach.  Depending on what the court does with these cases, the world of complex litigation could be dramatically changed. These aren't really mass tort cases, but the topic is tangentially related to ours so here goes, gentle readers. If you are not interested in this stuff, surf on.

As we've been discussing on this blog, the Wal-Mart class action presents the court with the opportunity to rethink the requirements of 23(a) (how much do class members have to have in common for a class action to be certified) and 23(b)(2) (can any money damages claims be included?).  The Baycol case presents the court with the question of whether certification determinations are preclusive.  And the Concepcion case presents the question as to whether arbitration agreements barring class actions cannot be struck down based on state law contract doctrine -- in other words, must they be upheld under the FAA?

If the court follows its current trend of limiting class actions, by June we will be living in a world where the commonality requirement is very strict (class members will have to show that their common questions of law and fact also have common answers), if they fail to certify their class they'll be precluded from trying again, perhaps even if they were not class representatives, and consumers will be almost universally barred from bringing class actions (because what company in its right mind would choose not to have an arbitration provision barring class treatment?). 

ADL

 

How Do Big Cases Affect Companies?

If you're wondering how will the Dukes class action affect Wal-Mart, if the plaintiffs win their certification motion?  The answer from one prominent scholar is, probably not much.  I think this is a great time to revisit the very provocative article from Michael Selmi and think about what this tells us about litigation in America today in civil rights but also the tort area.

See Michael Selmi, The Price of Discrimination: The Nature of Class Employment Litigation and its Effects in the Texas Law Review (link to SSRN).  Here is the abstract:

This article analyzes the recent wave of large class action employment discrimination suits to determine their effects on the firms that are sued and the members of the plaintiff class. The first part of the paper includes an event study that measures the effect the lawsuits and their settlements have on stock prices of the companies that are sued, and the second part of the paper involves three case studies (Texaco, Home Depot and Denny's) to explore how the lawsuits actually change corporate practices. The study finds that the lawsuits do not generally affect stock prices, and rarely provide meaningful benefits to the plaintiff class. Although the damages obtained in the cases are substantial, they are generally not sufficient to affect large corporations, which also means that the lawsuits are unlikely to provide a sufficient deterrent against discrimination. An important subsidiary finding of the study is that employment discrimination class actions have lost their public nature and have evolved into private tort claim where there is little public oversight. The last part of the article proposes several reform measures, including increasing damages available in employment discrimination suits, and imposing a public monitoring function on the settlement.

ADL

Justice Ginsburg and the Dukes Class Action

Our own Howard Erichson was cited in a Supreme Court amicus brief for his observation that "Granted,
the Wal-Mart class action isn't a mass tort, but the Ninth Circuit's previous decision that upheld certification of the largest class action to date bears significantly on class action law in general." For this reason, the Court's grant of cert in the case on Monday signals a banner year for class actions in the Supreme Court.

The Court has been hostile to mass tort class actions and among the hostile Justices we should pay special attention to Justice Ginsburg.  Justice Ginsberg is a proceduralist (she once taught civil procedure). She has evidenced a desire to read the class action rule narrowly and rigorously, not only in Amchem v. Windsor, but also more recently in Shady Grove v. Allstate, in which she desribed the process by which a number of individual small claims become a class action as a form of "alchemy" and I would say came pretty close to suggesting that class action rule violates the Rules Enabling Act (although she certainly did not go that far). 

At the same time, Justice Ginsburg is a well known proponent of women's rights and antidiscrimination law.  She was on the front lines of sex discrimination litigation when she was in practice, back in the day.

In the Dukes class action she faces a crash course between two values: her apparent increasingly skeptical view of the class action as an instrument of doing justice and deterring wrongdoing and her committment to gender equality.   It will be very interesting to see how she resolves that tension.

ADL

[edited to fix link]

 

Supreme Court Grants Cert in Dukes v. Wal-Mart Stores, Inc.

In a long awaited decision to Wal-Mart's petition, the United States Supreme Court granted review in Dukes v. Wal-Mart Stores, Inc.  There's already been a good bit of academic commentary on the case.  Vanderbilt Law Review En Banc hosted a Roundtable discussion on the case, which is available here.  It includes my introduction to the issues in the Dukes case along with Bob Bone's essay, Sorting Through the Certification Muddle; Greg Mitchell's essay, Good Causes and Bad Science; Alexi Lahav's essay, The Curse of Bigness and the Optimal Size of Class Actions; and, of course, the late Richard Nagareda's essay, Common Answers for Class Certification.

Suzette Malveaux, Bob Bone, Melissa Hart, and I will be hosting a "hot topics" panel on the Dukes case at this year's AALS meeting.  The panel is currently scheduled for Friday, January 7, 2011, from 8:30-10:15 a.m. at the San Francisco Hilton.  We have, however, requested that the location be changed due to the on-going labor disputes, so an update may follow.  

Update: Interestingly, the Court granted cert only on Wal-Mart's first question, "Whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under what circumstances."  (Wal-Mart Petition for Cert. at i).  The Court also directed the parties to "brief and argue the following question: 'Whether the class certification ordered under Rule 23(b)(2) was consistent with Rule 23(a).'"  For those who are interested, I address the issues underlying this question in pages 93-98 of the Introduction.

ECB

4th International Conference on the Globalization of Collective Litigation at Florida International University College of Law

The 4th International Conference on the Globalization of Collective Litigation
 will take place on Friday, December 10, 2010 at Florida International University College of Law
 in Miami.

This conference, co-organized by professors Manuel A. Gomez (Florida International University College of Law ) and Deborah R. Hensler (Stanford Law School) is the fourth in the series of international conferences on the global spread of collective litigation begun in 2007 at Oxford University. It will bring together academicians, policy analysts and legal practitioners to systematically review the status of collective litigation around the world with special focus on Latin America, a region signaled by a growing interest in protecting collective rights, the passage of legislation that provides for class actions and similar mechanisms, and the increased participation of domestic courts in deciding cases that involve large-scale accidents, environmental harms, exposure to toxic materials, defective products and financial injuries. 
The conference will address issues of critical importance including financing, coordination and enforcement. It will also serve as a vehicle to exchange information about how the collective litigation rules work in practice, who is availing themselves of these procedures and for what ends, and what the economic and social consequences are for individuals, business, and the public interest.

The full agenda and registration information are available here.

Although I won't be speaking at the conference, I'm planning on attending the conference, as I'm currently researching the Toyota Unintended Acceleration MDL in connection with a Law and Society Association international research collaborative (IRC) on the Globalization of Class Actions and Other Forms of Collective Litigation.  Several of the conference moderators and speakers are also active in the IRC, including IRC participants Deborah Hensler (Stanford), Christopher Hodges (Oxford), Ianika Tzankova (Tilburg U., Netherlands), and Manuel Gomez (Florida International).

BGS