Mass Tort Litigation Blog

Ted Frank Profile in the Wall Street Journal

In today's Wall Street Journal, There's a profile of Ted Frank of the Center for Class Action Fairness.  The WSJ Law Blog also has a companion post on him today.  Ted Frank has been toiling for years on class actions, as well as law reform generally in his previous position at the American Enterprise Instititue. Today's recognition is well deserved.

For one indication of his devotion to class-action reform, check out Ted Frank's license plate.

BGS

Best Blog Survey

Hello readers, we've been nominated as a top 25 LexisNexis Tort Blog of 2011 and would appreciate your vote if you're so inclined.  To vote, simply add a comment to the Litigation Resource Community.  As a reminder, you can also follow us on Facebook.  Thanks!

Resnik on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers

Judith Resnik has posted her latest piece, Fairness in Numbers: A Comment on AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, on SSRN.  Here's the abstract:

Can eighteenth-century constitutional commitments that “courts shall be open” for private rights enforcement be coupled with twentieth-century aspirations that democratic orders provide “equal justice under law”? That question sits at the intersection of three cases, AT&T v. Concepcion, Wal-Mart v. Dukes, and Turner v. Rogers, decided in the 2010 Supreme Court Term. In each decision, Justices evaluated the fairness of particular procedures (class arbitrations, class actions, or civil contempt processes) when making choices about the meaning of governing legal regimes — the Federal Arbitration Act (FAA) and state unconscionability doctrine in AT&T; Rule 23 and Title VII in Wal-Mart; and the Due Process Clause and child support obligations in Turner.

AT&T and Wal-Mart presented related questions about how the form of dispute resolution (individual or aggregate) and the place of dispute resolution (public or private, state or federal) affect the level of public regulation of consumer and employment transactions predicated on boilerplate, rather than negotiated, terms. The issue in Turner was whether state-funded lawyers were required before a person could, at the behest of the child’s custodian, be incarcerated for contempt for failure to pay child support. The specific case involved two individuals, but their circumstances illustrated the challenges faced by millions of other lawyer-less litigants in state and federal courts.

Each case exemplifies the challenges that new rights, produced by twentieth-century social movements, pose for courts. When claimants such as consumers, employees, and household members presented themselves as entitled to equal treatment, jurists responded by interrogating their own procedural parameters. Relying on the Due Process Clause, courts developed distinct lines of analyses that — depending on the context — imposed criteria on decisionmaking procedures, mandated subsidies to address resource asymmetries between adversaries, shaped processes to reduce intra-litigant disparities, and facilitated access to courts. Requisite to those efforts was a practice that is intertwined with fairness — the public quality of adjudication that endows an audience with the authority to watch, critique, and respond through democratic channels to the legal norms announced. A “fair and public hearing” became a touchstone of what democratic orders required their courts to provide. 

But, as this trio of cases demonstrates, whether seeking to implement those egalitarian aspirations or simply to function, courts have to grapple with economically disparate claimants and a vast volume of eligible rights holders. If eighteenth-century constitutional entitlements to open courts are to remain relevant to ordinary litigants, the question is not whether to aggregate, subsidize, and reconfigure process but how to do so “fairly,” in terms of what groups, which claims, by means of which procedures, and offering what remedies. But without public disclosures and oversight of dispute resolution — in and out of court, single file and aggregated — one has no way to know whether fairness is either a goal or a result.

ECB

Richard Nagareda, In Memoriam

I just came across the essays dedicated to the memory of Richard Nagareda in the Vanderbilt Law Review.  It was extraodinarily sad to read the loving tributes to Richard.  I knew him in a very limited way.  That said, I found the pictures painted of him in the essays to be right on: smart, caring, a great mentor, and a bold thinker.  From a professional perspective (and that is obviously not the most important thing in life), it was at once devastating and a fitting tribute to see his work featured as the basis for the Supreme Court's decision in Wal-Mart v. Dukes.  He continues to be missed.

ADL

Levaquin Bellwether Trials Update

BNA reports that a set of cases (one trial, two plaintiffs) reached a defense verdict in the Levaquin pharma litigation.  Beare v. Johnson & Johnson, N.J. Super. Ct. Law Div., No. ATL-L-196-10, verdict 10/14/11; Gaffney v. Johnson & Johnson, N.J. Super. Ct. Law Div., No. ATL-L-4551-09, verdict 10/14/11).  The cases are consolidated before Judge Carol Higbee of New Jersey, who also oversaw the New Jersey Vioxx litigation.

The allegations are the the manufacturer of the antibiotic did not provide adequate warnings of its potential to cause tendon injuries. There are six more bellwether cases to go. According to BNA there are approximately 1,900 Levaquin cases before Judge Higbee.

I don't have information about how the bellwether cases were picked or why eight is the number.  For an analysis of how judges can do a more rigorous job of using bellwether trials to promote case resolution and equality among litigants, see my latest paper: The Case for "Trial by Formula." 

ADL

Class Actions: The Latest Evidence of Life

The press is reporting that several persons (independent operators of ATMs and individuals) have filed class action lawsuits against big banks for colluding to raise ATM fees.  Here is are some news reports: CBS, Bloomberg Businessweek, Reuters.  

ADL

Sternlight on Concepcion

Jean Sternlight (UNLV) has posted a draft of her lastest article on Concepcion, which is titled "Tsunami: AT&T Mobility v. Concepcion Impedes Access to Justice."  Here's the abstract:

This essay explores the policy implications of the Supreme Court’s recent 5-4 decision in AT&T Mobility v. Concepcion. Concepcion held that lower courts’ use of California’s Discover Bank rule to hold unconscionable a class action waiver contained in an arbitration clause was preempted by the Federal Arbitration Act. Following the decision, commentators observed that the impact of the decision would depend on how narrowly or broadly the holding would be interpreted by lower courts. After examining post-Concepcion lower court decisions focused on the validity of arbitral class action waivers this essay finds that that most courts are interpreting Concepcion broadly, thereby dooming most unconscionability attacks on arbitral class action waivers. The essay then explores the policy implications of this trend. It suggests that if not legislatively or administratively limited Concepcion will substantially harm consumers, employees, and perhaps others by permitting companies to use arbitration clauses to exempt themselves from class actions, thereby giving them free rein to engage in fraud, torts, discrimination, and other harmful acts.

ECB

Trask on Wal-Mart v. Dukes and Legal Strategy

Andrew Trask of McGuire Woods has posted his article, "Wal-Mart v. Dukes: Class Actions and Legal Strategy," on SSRN.  Here's the brief abstract:

The Court’s decision in Wal-Mart v. Dukes, like its other class action rulings in the 2010-11 term, reflects an effort to ‘‘reset’’ class certification strategies. By passing judgment on the propriety of a number of the more strategic innovations in class action practice, the Court has cleared away doctrinal developments that did not necessarily reflect the intent of Rule 23.

ECB

Gilles and Friedman on "After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion"

Myriam Gilles and Gary Friedman have posted a draft of their article, "After Class: Aggregate Litigation in the Wake of AT&T Mobility v. Concepcion," on SSRN.  Here's the abstract:

Class actions are on the ropes. Courts in recent years have ramped up the standards governing the certification of damages classes and created new standing requirements for consumer class actions. Most recently, in Wal-Mart v. Dukes, the Supreme Court articulated a new and highly restrictive interpretation of the commonality requirement of Rule 23(a). But all of this pales in comparison to the Court’s April 2011 decision in AT&T Mobility v. Concepcion, broadly validating arbitration provisions containing class action waivers. The precise reach of AT&T warrants close scrutiny. Our analysis suggests that following AT&T, some plaintiffs will be able to successfully challenge class waivers under certain circumstances. Also, the new Consumer Financial Protection Bureau - if it is not still-born at the hands of hostile congressional midwives - is likely to eliminate some class action waivers in the financial services field. But most class cases will not survive the impending tsunami of class action waivers. And as this great mass of consumer protection, antitrust, employment and other cases is swept out to sea, the question arises: what or who can fill the resulting enforcement gap? 

And here, we believe the “private attorney general” role assumed by class action lawyers over the past several decades will inevitably give way to a world in which state attorneys general make unprecedented use of their parents repatriate authority. Insulated from the threats posed by class action waivers and restrictive class action standing doctrine, AGs are now uniquely positioned to represent the interests of their citizens in the very consumer, antitrust, wage-and-hour and other cases that have long provided the staple of private class action practice. And to tackle complex cases, underfunded AG offices will make use of the private class action lawyers who have acquired expertise in originating, investigating and prosecuting class cases. Of course, there are political risks here - given the model’s dependency on contingent fee arrangements - but there are also substantial political benefits, as AGs around the country begin to take leadership positions in the sort of complex, big-ticket cases that are likely to contribute meaningfully to state coffers - and redress the injuries of consumers and employees who would otherwise have no recourse in a post-AT&T world.

ECB

Update on Bellwether Trials in Toyota Acceleration Cases

Today's Wall Street Journal Law Blog has an update on the state and federal Toyota acceleration cases.  California Superior Court Judge Anthony Mohr has penciled in bellwether trials to begin in April of 2012, but Judge Selna, who is presiding over the federal MDL, estimates that bellwether trials will not begin there until February 2013. Likewise, plaintiffs' attorneys litigating before Judge Robert Schaffer in Texas suspect that they too will not try a case until 2013.

ECB

Morris Ratner on A New Model of Plaintiffs' Class Action Attorneys

Morris Ratner (Harvard) has posted to SSRN his article, A New Model of Plaintiffs' Class Action Attorneys, Rev. Litig. (forthcoming).  The article presents a nuanced, updated portrait of plaintiffs' class action firms today that challenges prior conceptions of class-counsel bias.  Here's the abstract:

This Article offers a new model for conceptualizing plaintiffs’ class action attorneys, and thus for understanding principal-agent problems in class action litigation. It responds to the work of Professor John C. Coffee, Jr., who, in a series of influential articles, demonstrated that principal-agent problems may be acute in class action litigation because class members lack the information or financial incentive to monitor class counsel; class counsel is thus free to pursue his own interests at the expense of the class members. But what are those interests, and how do they diverge from the class members’ interests? Professor Coffee provided one answer to this sub-set of questions, presenting a conventional account of class counsel and the precise parameters of his disloyalty corresponding with three descriptive assertions: that class counsel is either a solo practitioner or in a small firm; that he is predominantly interested in maximizing his law firm profit; and he capably pursues his fee-maximizing goal by investing his time in cases based on confident predictions about expected fees. In this Article, I articulate an updated and competing conception of the dominant class action attorneys and firms: the leading firms today are relatively large and internally complex; law firm structural complexity creates diverse incentives other than maximization of law firm profit; and class counsel invest time in cases for complex reasons other than the effect on expected fees, particularly because fees are notoriously difficult to predict. Modeling class counsel to recognize this complexity has three virtues: it better reflects the actual characteristics of the most significant class action attorneys, and hence is a more accurate descriptive tool; as such, it enables a more precise understanding of the extent and nature of agency or loyalty problems; and thus, finally, it provides a more solid basis for reforms. In particular, this new model sheds insight on the importance of direct versus incentive-based regulation to manage agency costs in class actions. In light of the diverse incentives this new model reveals, direct regulation of outcomes by trial courts using enhanced final approval standards should be a central part of any package of reforms to manage agency costs in class litigation.

BGS

All or Nothing Aggregate Settlements in Trouble

(With apologies to HME for stealing his title)

The Second Circuit last week (just in time for the Jewish New Year) decided Johnsons v. Nextel Communications, Inc., -- F.3d -- , 2011 WL 4436263 (2d Cir. Sept. 26, 2011) .  You can find the opinion here.  That case involved an aggregate settlement with all kinds of schenanigans that our own Howard Erichson described in his article "The Trouble With All or Nothing Settlements." (download it while its hot! ...as they say....)

The Second Circuit allowed the clients to sue the lawyers on a broad breach of fiduciary duty theory.  The clients may also sue the defendants on an "aiding and abetting" theory.

I learned from this opinion from Adam Zimmerman (St. John's) who has also blogged about it on the ADR Prof Blog. 

ADL