Mass Tort Litigation Blog

Sixth Biennial Conference on the Law of Obligations at University of Western Ontario

Announcement from Professor Jason Neyers (Univ. of Western Ontario):

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Sixth Biennial Conference on the Law of Obligations: Challenging Orthodoxy

Hosted by The Faculty of Law at the University of Western Ontario

London, Ontario, Canada

July 17-20, 2012

The Faculty of Law at the University of Western Ontario is pleased to be hosting the Sixth Biennial Conference on the Law of Obligations. The conference will bring together leading scholars in tort, contract, equity and unjust enrichment from throughout the common law world.

The theme of the conference is "Challenging Orthodoxy." We have prepared an academic program of over 60 speakers in which professors, graduate students and eminent practitioners will challenge established common law rules and suggest new approaches to both old and emerging problems. The plenary speakers are Chief Justice Beverley McLachlin and Justice Thomas Cromwell (Supreme Court of Canada), Melvin Eisenberg (Berkeley), John Goldberg (Harvard), Andrew Robertson (Melbourne), Ernest Weinrib (Toronto), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).

The Obligations Conference originated at the University of Melbourne in 2002, and has since become one of the leading private law conferences in the common law world. The biennial conferences have been held at the University of Melbourne, the University of Queensland, the National University of Singapore and the University of Oxford. 

For more information on the Conference and to register please visit: http://www.law.uwo.ca/Conferences/Obligations6/index.html.

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BGS

Class Action Symposium at SCOTUSblog

SCOTUSblog is hosting an online symposium about the future of class action lawsuits in the wake of Concepcion and Dukes that will include the following contributors:

• Sergio Campos, University of Miami School of Law
• Sarah Crawford, National Partnership for Women and Families
• Scott Dodson, William & Mary Law School
• Allen Erbsen, University of Minnesota Law School
• Ted Frank, Center for Class Action Fairness, LLC
• J. Russell Jackson, Skadden, Arps, Slate, Meagher & Flom LLP
• Paul Karlsgodt, Baker Hostetler
• Charles Silver, University of Texas Law School
• Andrew J. Trask, McGuire Woods

ECB

Grabill on Judicial Review of Private Mass Tort Settlements

Jeremy Grabill (Weill, Gotshall) has posted to SSRN his article, Judicial Review of Private Mass Tort Settlements, which is forthcoming in the Seton Hall Law Review.  Here's the abstract:

In the mass tort context, class action settlements have largely given way to a unique form of non-class aggregate settlements that this Article refers to as “private mass tort settlements.” Although it has been argued that aggregation in tort law is “inevitable,” the legal profession has struggled for many years to find an effective aggregate settlement mechanism for mass tort litigation that does not run afoul of the “historic tradition” that everyone should have their own day in court, assuming they want it. Over the last decade, however, as a result of the evolution of non-class aggregate settlements, a new opt-in paradigm for mass tort settlements has emerged that is true to that historic tradition. This Article discusses the new opt-in paradigm and the appropriate contours of judicial authority vis-à-vis private mass tort settlements.

Private mass tort settlements present a difficult conundrum for presiding judges. On one hand, mass tort litigation requires active judicial involvement and oversight due to the sheer size and complexity of such matters. Thus, having been intimately involved in the litigation from its inception, it understandably seems natural for courts to want to exercise some degree of control over private mass tort settlements. But, on the other hand, like traditional one-on-one settlements and unlike class action settlements and other specific settlements, private mass tort settlements do not impact the rights of absent or unrepresented parties. Perhaps not surprisingly then, courts have struggled in applying established principles concerning the scope of judicial authority to evaluate and oversee the implementation of traditional settlements in the unfamiliar context of private mass tort settlements. 

This Article seeks to provide a clear path forward by first examining the limited contexts in which courts have the authority to evaluate and oversee the implementation of traditional settlements, highlighting the nature of the absent or unrepresented interests that judicial review is designed to protect in those traditional contexts. The Article then discusses the emerging opt-in paradigm for mass tort settlements and traces the paradigm’s lineage to three recent cases: In re Baycol Products Liability Litigation, In re Vioxx Products Liability Litigation, and In re World Trade Center Disaster Site Litigation. The Article argues that the well-established maxim that courts lack authority over private one-on-one settlements should apply with equal force to private mass tort settlements because these non-class aggregate settlements allow each individual plaintiff to decide whether or not to settle on the terms offered and do not impact the rights of absent or unrepresented parties. In short, courts do not have - and do not need - the authority to review private mass tort settlements. The Article concludes by addressing the arguments that have been advanced to support judicial review of non-class aggregate settlements, debunking the “quasi-class action” theory that some courts have relied upon to regulate attorneys’ fees in connection with mass tort settlements, and discussing the various ways in which courts may nevertheless be able to influence private mass tort settlements.

BGS

RAND Reports on Asbestos Bankruptcy Trusts and Tort Compensation

RAND's Institute for Civil Justice last week released its report, Asbestos Bankruptcy Trusts and Tort Compensation, by Lloyd Dixon and Geoffrey McGovern.  Here's the summary:

Payments by asbestos bankruptcy trusts have played an increasingly important role in compensating asbestos injuries and have become a matter of contention between plaintiff and defense attorneys. At issue is how tort cases take into consideration compensation paid by trusts and the evidence submitted in trust claim forms. This monograph examines how such evidence and compensation are addressed by state laws and considered during court proceedings. It also examines how the establishment of the trusts potentially affects plaintiff compensation from trusts and the tort system combined, payments by defendants that remain solvent, and the compensation available to future, as compared to current, plaintiffs. The authors find that the potential effects of trusts' replacement of once-solvent defendants are very different in states with joint-and-several liability than in states with several liability. In states with joint-and-several liability, total plaintiff compensation should not change. In several-liability states, the replacement of once-solvent defendants by trusts can cause total plaintiff compensation to increase, decrease, or remain unchanged. The findings underscore the importance of information on plaintiff exposure to the products and practices of the bankrupt firms in determining the trusts' effects on plaintiff compensation and on payments by defendants that remain solvent. 

RAND also published the shorter Research Brief, Bankruptcy Trusts, Asbestos Compensation, and the Courts, by the same authors.  

BGS

Call for Papers for "New Voices" Workshop at Vanderbilt's Branstetter Litigation & Dispute Resolution Program

Announcement from Professor Tracey George, who is the new Director of Vanderbilt's Branstetter Litigation & Dispute Resolution Program:

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VANDERBILT LAW SCHOOL • BRANSTETTER LITIGATION & DISPUTE RESOLUTION PROGRAM

CALL FOR PAPERS

Vanderbilt Law School and the Cecil D. Branstetter Litigation & Dispute Resolution Program announce the 2012 New Voices in Civil Justice Scholarship Workshop to be held at Vanderbilt on April 20, 2012, and invite submissions for the workshop.

The Branstetter Litigation & Dispute Resolution Program draws on a multimillion-dollar endowment to support research and curriculum in civil litigation and dispute resolution.  The idea for the Branstetter “New Voices” workshop is to draw together scholars on civil justice issues who are in the first seven years of their academic careers. Four to six scholars will be chosen by anonymous review of the submitted papers.  The audience will include invited junior scholars, Vanderbilt faculty, and invited guests.  Previous participants include Nora Freeman Engstrom (Stanford), Maria Glover (Harvard), Margaret Lemos (Cardozo), Jonathan Mitchell (George Mason), Myriam Gilles (Cardozo), Donna Shestowsky (UC Davis), Benjamin Spencer (Washington & Lee), Amanda Tyler (George Washington), and Tobias Wolff (Pennsylvania).

The format for the workshop is designed to maximize collegial interaction and feedback.  All participants will have read the selected papers.  A senior faculty member will provide a brief overview and commentary on the paper, and then we are off and running with interactive discussion.  Paper authors thus do not deliver prepared “presentations” as such.  Rather, the overwhelming majority of each session is devoted to collective discussion of the paper involved. 

Submission requirements.  

1. Subject matter.  Submitted papers should address an aspect of civil justice.  Subject areas may include, but are not limited to, civil procedure, complex litigation, evidence, federal courts, judicial decisionmaking, alternative dispute resolution, remedies, and conflict of laws.  In keeping with the intellectual breadth of the Branstetter Program faculty, we are very receptive to the full range of scholarly methodologies, from traditional doctrinal analysis to quantitative or experimental approaches.  

2. Author qualifications.  To be eligible to submit a paper, scholars must currently hold a permanent faculty position.  In addition, scholars may not have held a position at assistant professor or higher (including visiting assistant professor) prior to 2004.

3. Format.  Papers may be sent in either Microsoft Word or Adobe Acrobat format.  To maintain the anonymity of the process, please remove any self-identifying information from the submission.

4. Deadline.  Submissions should be e-mailed to [email protected] no later than January 13, 2011.  Please include your name, current position, and contact  information in the e-mail accompanying the submission.  We will contact you with our decision by February 15.

The Branstetter Program will pay all reasonable travel expenses within the United States for invited participants.  If you have any questions, please email Professor Tracey George, Branstetter Program Director, at [email protected]

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BGS

Politics, Media, and Lawsuit Reform -- The Perry Push for Loser Pays

Since my earlier post on loser pays as a solution to frivolous lawsuits, attention to loser pays as lawsuit reform has increased, apparently largely as a result of Texas Governor Rick Perry's announcement that he is seeking the Republican nomination for President.  Recall that Governor Perry in May enacted a form of loser pays in Texas.  (See also this July speech by Perry discussing passage of loser pays in Texas.)  Then, in August, when Governor Perry announced his candidacy for President, he included in his speech a reference to loser pays, eliciting a surprisingly large cheer from the crowd (see this video at 25 seconds).  Governor Perry's presidential-campaign website then again highlighted lawsuit reform (and thereby also his loser-pays approach) by claiming that "Texas' unmatched record on job creation was based on a few simple ideas: Don't spend all the money.  Keep taxes low.  Make regulations fair and predictable. And stop the frivolous lawsuits that paralyze job creators."  (Emphasis added.)

In response, the media and policy groups have turned their attention to loser pays.  The Washington Examiner several days ago ran an editorial entitled, Lawsuit Reform Could be Big in 2012, which discussed the passage of loser pays in Texas.  The Wall Street Journal Editorial Report on Fox News last weekend highlighted Perry's record on loser pays in Texas, calling it a "major, major reform."  The Institute for Legal Reform of the U.S. Chamber of Commerce yesterday sent out an email blast linking a survey that asked if lawsuit reform should be part of a pro-growth agenda.  And yesterday, Politico published a lengthy analysis of plaintiffs' lawyers preparing to organize politically against Governor Perry, should he be the Republican nominee, because of Perry's record on Texas tort reform: "Among litigators, there is no presidential candidate who inspires the same level of hatred — and fear — as Perry, an avowed opponent of the plaintiffs’ bar who has presided over several rounds of tort reform as governor."

What might Governor Perry do on loser-pays lawsuit reform were he to become President Perry?  Perry is an avowed defender of federalism, so one would think he would not attempt to push loser pays in areas traditionally under state law (such as tort law).  But he might attempt to insert loser-pays provisions in federal statutes creating causes of action.  And as candidate, nominee, or president, he could significantly influence the debate in statehouses about loser pays by continuing to cite loser pays and lawsuit reform as a reason for his claimed relative success of the Texas economy in creating jobs.  Stay tuned.

BGS 

Erbsen on Personal Jurisdiction

Allan Erbsen has posted a great post on Nicastro, one of the recent personal jurisdiction cases decided this term.  A taste:

[T]he opinion did not consider that situating personal jurisdiction within a broader context of constitutional law governing horizontal federalism invites analogies to other federalism doctrines that might require reorienting jurisdiction doctrine.  The plurality inadvertently illustrated this phenomenon when it discussed choice of law.  Two portions of the opinion are relevant.  On page 4, the plurality stated that "[t]he Due Process Clause protects an individual's right to be deprived of life, liberty, or property only by the exercise of lawful power. This is no less true with respect to the power of a sovereign to resolve disputes through the judicial process than with respect to the power of a sovereign to prescribe rules of conduct for those within its sphere. As a general rule, neither statute nor judicial decree may bind strangers to the State."  The plurality thus noted that the choice of law and jurisdiction inquiries can be similar: states may not exercise "lawful power" over "strangers," and so doctrine exists to distinguish strangers from non-strangers.  Yet on page 11, the plurality observed that "[a] sovereign's legislative authority to regulate conduct may present considerations different from those presented by its authority to subject a defendant to judgment in its courts."  In other words, even though the jurisdiction and choice of law inquiries sometimes aspire to distinguish strangers from non-strangers, different factors might be relevant in the two inquiries, so a person might be a stranger for jurisdictional purposes but not for choice of law purposes.  The obvious follow-up question that the plurality never addressed is: why?  What aspect of asserting jurisdiction over a person, as compared to applying a statute to that same person, requires considering different variables in the constitutional calculus?  Instead of addressing this question, the plurality merely repeated various doctrinal tests (such as "purposeful availment") announced in prior jurisdiction cases, without explaining why those tests did not also apply in the choice of law context, and why current choice of law tests do not apply in the jurisdiction context.  The failure to compare the two contexts is important because modern choice of law doctrine almost certainly would allow application of New Jersey law to the plaintiff's claim (which stems from an accident and injury in New Jersey to an employee of a business in New Jersey), even though the defendant did not "purposefully direct" its conduct to New Jersey.  So apparently the lawful exercise of sovereign authority over a reluctant defendant does not always require the sort of purposefully targeted conduct that the plurality extols in its blunt rhetoric about due process.  This observation does not mean that the plurality was wrong—jurisdiction and choice of law might be meaningfully different—but those differences require a subtler analysis of federalism than the plurality provided.

Definitely worth a read.