Mass Tort Litigation Blog

Introducing... Stanford Journal of Complex Litigation

Stanford has an exciting announcement: the creation of the first scholarly law journal devoted to complex litigation!  Stanford law students interested in complex litigation and mass torts will now have the opportunity not only to study under Stanford's Deborah Hensler, but also to edit the Stanford Journal of Complex Litigation.  

Below is a note from the journal's first editors-in-chief, Nick Landsman-Roos and Matt Woleske.

BGS

***

Re: Announcing the Stanford Journal of Complex Litigation! 

Dear Authors: We are proud to announce the founding of the Stanford Journal of Complex Litigation (SJCL). Beginning in the 2012-2013 academic year, SJCL will publish articles and essays that are timely and make a significant, original contribution to the field of complex litigation. We are currently seeking article and essay manuscripts on a range of topics including the rules of civil procedure, aggregate litigation, mass torts, jurisdictional disputes, complex litigation reform, actions by private attorneys general, and transnational litigation. 

We hope you will consider publishing with SJCL for a few reasons: 

    ·         Specialization: SJCL is the first student-edited journal devoted exclusively to topics relating to complex litigation. Publishing with SJCL will ensure your important contribution will be read within the broader field it is engaging. SJCL will serve as a forum for dialogue on complex litigation issues. We also expect that because SJCL is devoted exclusively to complex litigation, it will quickly become a source of guidance for courts and practitioners.   

·         Expedited publishing: Because we are currently accepting submissions for the first volume of SJCL, we will be able to publish many of the submissions we accept in our fall issue. That means you can expect your article with SJCL to be in print faster than almost any other journal. There will be no need to update through a lengthy editing process. 

·         Modified peer review: SJCL will follow a modified peer-review system. Meaning, after a first-level review by SJCL’s editorial staff, any submission that is a candidate for publication will be submitted to at least one scholar in the field of complex litigation or civil procedure who will review the piece. We will take any unanimous decision from our peer reviewers as a binding decision on publication. This will ensure that SJCL is publishing significant contributions to this field.   

·         “Light edit”: Our editorial policy is to afford substantial deference to authors, in both tone and substance. As a result, all articles must be well written, well cited, and completely argued at the time of submissions. SJCL will only edit to ensure readability and Bluebook compliance, which means that the editing process will be faster but also requires that authors vouch for the accuracy of their citations. 

·         Outreach: We are committed to generating interest in the articles published with SJCL. That is why we will actively promote all scholarship we publish at symposia and on the blogosphere. We are also committing to distributing hundreds of copies of our first issue to grow our readership base. 

·         Volume 1: There is something to be said for publishing in the very first volume of a journal. We hope you appreciate this significance and decide to submit your manuscript to SJCL. 

We review and accept articles year-round on a rolling basis. SJCL strongly prefers electronic submissions through the ExpressO submission system, which can be found online at http://www.law.bepress.com/expresso. You may also e-mail your manuscript to [email protected]. We do not accept submissions in hard copy. 

SJCL is also seeking faculty with expertise in areas such as civil procedure or complex litigation to serve as reviewers. If you are interested, please contact [email protected]. 

A website with more information is forthcoming. For the time being please refer to our Stanford Law School site: http://www.law.stanford.edu/publications/journals/sjcl/. 

Please contact us with any questions. We look forward to working with you. 

Regards, 

Nick Landsman-Roos & Matt Woleske

Editors-in-Chief, Stanford Journal of Complex Litigation

[email protected] 

Move Over Amchem - The BP Settlement Class Action Is Here

George Conk has the links to the BP settlement class action.  A quote from the complaint: "The principle was two-fold:  to design claims frameworks that fit a wide array of damage categories, and, within each category, to treat like claims alike, so as to proceed with both fairness and predictability."  

Conk also notes that the settlement offers a "risk transfer premium" for future injuries/losses.   You can find more posts here.

Interesting to think how the court will treat this high profile settlement class action, whether there will be objectors and appeals.

ADL

McKenzie on the Bankruptcy Model for Mass Torts

Troy McKenzie (NYU) has posted "Toward a Bankruptcy Model for Non-Class Aggregation."  I look forward to reading it.  Here is the abstract:

In recent years, aggregate litigation has moved in the direction of multidistrict litigation followed by mass settlement without certification of a class action — a form commonly referred to as the “quasi-class action.” Driven by increased restrictions on class certification, the rise of the quasi-class action has been controversial. In particular, critics object that it overempowers lawyers and devalues the consent of individual claimants in the name of achieving “closure” in litigation. This Article presents two claims.

First, the debate about the proper scope and form of the quasi-class action too frequently relies on the class action as the touchstone for legitimacy in aggregate litigation. References to the class action, however, are more often misleading than helpful. The basic assumptions behind the class action are different in degree and in kind from the reality of the quasi-class action. Overreliance on the class action as the conceptual framework for aggregation carries the significant risk of unintentionally shackling courts in their attempts to coordinate litigation. The very reason the quasi-class action emerged as a procedural device — the ossification of the class action model of litigation — suggests that courts and commentators should look for another reference model when assessing what is proper or improper in quasi-class actions.

Second, bankruptcy serves as a better model for judging when to use, and how to order, non-class aggregation of mass tort litigation. The entirety of bankruptcy practice need not be imported to realize that bankruptcy may provide a useful lens for viewing aggregation more generally. That lens helps to clarify some of the most troubling concerns about the quasi-class action, such as the proper role of lawyers and the place of claimant consent. Bankruptcy serves as a superior reference model because it starts with an assumption that collective resolution is necessary but tempers the collective with individual and subgroup consent as well as with institutional structures to counterbalance excessive power by lawyers or particular claimants.

ADL

Klonoff on Class Actions

Dean Robert Klonoff (Lewis & Clark) has posted The Decline of Class Actions to SSRN.  It provides a very useful overview to the recent developments in class actions - going far deeper than just Wal-Mart.  If you're interested in class actions, this is a must read. Here is the abstract:

This Article argues that in recent years courts have cut back sharply on the ability to bring class action lawsuits, thereby undermining the compensation, deterrence, and efficiency functions of the class action device. Starting in the mid-1990s, courts began expressing concern about the pressure on defendants to settle after a decision certifying a class. The business community also raised concerns that many multi-state class actions were brought in pro-plaintiff, state-court venues. Federal Rule of Civil Procedure 23(f), adopted in 1998, enabled defendants to obtain interlocutory review of federal district court decisions certifying class actions, and the Class Action Fairness Act (CAFA), adopted in 2005, had the effect of shifting most major class actions to federal court. There is now a large body of federal appellate court case law, and as a result of that case law, several disturbing trends have emerged.

First, many courts now require that plaintiffs prove substantial portions of their cases on the merits at class certification. Second, several of the class certification requirements (class definition, numerosity, commonality, adequacy of representation, Rule 23(b)(2), and Rule 23(b)(3), are now considerably more difficult to establish. Third, a number of courts have rejected class settlements by rigidly applying the requirements for class certification, even though the settlement eliminates the need for a trial. Fourth, a number of courts have essentially nullified so-called issues classes under Rule 23(c)(4) by requiring courts to examine whether the case as a whole satisfies the predominance requirement of Rule 23(b)(3). Finally, the Supreme Court has upheld, against unconsionability challenges, binding arbitration clauses that prohibit resolution of disputes on a classwide basis.

Although some class actions remain viable, such as securities fraud, wage and hour, and antitrust class actions, the overall impact of these case law trends has been to curtail substantially the ability of plaintiffs to obtain class treatment. This Article thus concludes by urging courts, rule makers, and Congress to return to a more balanced approach to classwide adjudication.

ADL

Comparative Case Valuation: Tobacco Edition

BNA Class Action Litigation Reporter has an article about Engle's progeny and how the Florida courts are dealing with the variation in jury verdicts in those cases.  Here the link - behind a pay wall unfortunately.

In sum and substance, the Florida Supreme Court permitted an issue class action regarding the conduct of the tobacco companies to stand and ruled that the results have preclusive effect in subsequent cases.  Now the Individual cases are being litigated.  There are many plaintiffs verdicts.  BNA describes that there have been 50 judgments and compensatory damages were awarded in 35 cases.  Of those, in  at least 10 the jury awarded more than $7 million.  Not all have survived on appeal. 

I am interested in this suit because I think issue class actions are the cutting edge of class litigation and because there is potential here to use statistical methods to come up with a solution that is better than spending many millions litigating every case to judgement and appealing it.

  Here is the list of verdicts above $7 million:

$8 million compensatory and $71.2 million punitive damages (vacated on appeal) - Webb  (No. 1D10-6557, 4/9/12) 

$ 8 million compensatory - Tate (No. 2007–CA-021723 (17th Cir. Broward County))

$7.8 million compensatory - Campbell (No. 2008 CA 2147 (1st Cir. Escambia County)) (upheld on appeal).

$10 million compensatory - Cohen (No. 2007–11515 (17th Cir. Broward County)).

$7 million compensatory - Grey (No. 2007–CA-002773 (1st Cir. Escambia County)) (upheld on appeal)

$56.59 million compensatory - Naugle (No. 07–036736CA (17th Cir. Broward County)).

$15 million compensatory - Putney (No. 2007–CV-36668 (17th Cir. Broward County)).

$10.8 million compensatory - Townsend (No. 01–2008–CA-003978 (8th Cir. Alachua County)) (upheld on appeal) (40 million punitive damages award struck down). 

$20 million compensatory - Alexander (No. 07–46830–CA-10–4 (11th Cir. Miami-Dade Co.)) (on appeal)

$10 million compensatory and $20 million punitives - Smith (No. 09-719-CA (14 Cir. Jackson County) (on appeal)

Readers who know of others, or have a list of all the verdicts, please let us know.  ADL

 

 

 

 

Sherry on Concepcion and Dukes

Suzanna Sherry (Vanderbilt) has posted a copy of her forthcoming article, "Hogs Get Slaughtered at the Supreme Court," on SSRN.  Here's the abstract: 

Class action plaintiffs lost two major five-to-four cases last Term, with potentially significant consequences for future class litigation: AT&T Mobility v. Concepcion and Wal-Mart v. Dukes. The tragedy is that the impact of each of these cases might have been avoided had the plaintiffs’ lawyers, the lower courts, and the dissenting Justices not overreached. In this Article, I argue that those on the losing side insisted on broad and untenable positions and thereby set themselves up for an equally broad defeat; they got greedy and suffered the inevitable consequences. Unfortunately, the consequences will redound to the detriment of many other potential litigants. And these two cases are not isolated tragedies; they provide a window into a larger problem of Rule 23. When plaintiffs’ lawyers chart a course for future litigants, they may be tempted to frame issues broadly for the “big win” – with disastrous consequences. I suggest that it is up to the courts, and especially to those judges most sympathetic to the interests of class-action plaintiffs, to avoid the costs of lawyers’ overreaching. That is exactly what the dissenting Justices (and the judges below) failed to do in these cases.

ECB

Cheng on Trial Sampling in Mass Torts

Edward Cheng (Vanderbilt) has posted his paper, "When 10 Trials are Better than 1000: An Evidentiary Perspective on Trial Sampling," on SSRN.  It's also available through Penn's website.  Here's the intro on Penn's website:

In many mass tort cases, individual trials are simply impractical. Take, for example, Wal-Mart Stores, Inc. v. Dukes, a class action employment discrimination suit that the Supreme Court reviewed last Term. With over 1.5 million women potentially involved in the litigation, the notion of holding individual trials is fanciful. Other recent examples of the phenomenon include the In re World Trade Center Disaster Site Litigation and the fraud litigation against light cigarette manufacturers, in which Judge Weinstein colorfully noted that any “individualized process . . . would have to continue beyond all lives in being.”

Faced with an unserviceable number of plaintiffs, courts have proposed sampling trials: rather than litigating every case, courts would litigate a small subset and award the remaining plaintiffs statistically determined amounts based on the results. But while sampling is standard statistical practice and often accepted as evidence in other legal contexts, appellate courts have balked— based on due process concerns—at the notion of court-mandated, binding trial sampling.

Despite this appellate reluctance, the controversy continues unabated. Trial courts have soldiered on by using nonbinding sampled trials (dubbed “bellwether trials”) to induce settlement, and a few brave appellate courts, including the Ninth Circuit in Dukes, have even hinted at an increased receptivity to sampling. Given that trial courts have few practical alternatives, one wonders if it is just a matter of time before their appellate brethren recognize the necessity of sampling.

And here's the SSRN abstract:

In many mass tort cases, separately trying all individual claims is impractical, and thus a number of trial courts and commentators have explored the use of statistical sampling as a way of efficiently processing claims. Most discussions on the topic, however, implicitly assume that sampling is a “second best” solution: individual trials are preferred for accuracy, and sampling only justified under extraordinary circumstances. This Essay explores whether this assumption is really true. While intuitively one might think that individual trials would be more accurate at estimating liability than extrapolating from a subset of cases, the Essay offers three ways in which the “second best” assumption can be wrong. Under the right conditions, sampling can actually produce more accurate outcomes than individualized adjudication. Specifically, sampling’s advantages in averaging (reducing variability), shrinkage (borrowing strength across cases), and information gathering (through nonrandom sampling), can result in some instances in which ten trials are better than a thousand.

ECB

Bar on Punitive Damages Against Chrysler For Cars Sold Before 2009 Bankruptcy

The Wall Street Journal has a video describing the bar on punitive damages against Chrysler for new claims in connection with cars sold prior to Chrysler's 2009 bankruptcy.  The video features Professor David Skeel (Pennsylvania).

 

BGS

Class Action Blawg on the Case Against "Trial by Formula"

The Class Action Blawg has a post citing useful caselaw against the concept of trial by formula - that is, the use of statistical analysis to determine either apportionment of damages (less controversial) or liability (more controversial).  Thanks to our own Sergio Campos for the tip.

I just published a paper on this very topic called The Case for "Trial by Formula."  In this defense of the use of statistics, I show the benefits for statistical analysis in mass tort cases for the promotion of equality between plaintiffs.  "But what about defendants' due process rights?" the authors over at CAB, Justice Scalia and others might rightly ask.  This is a very good question.  Take Wal-Mart v. Dukes and the defense argument that the use of statistics to conduct Teamsters hearings would violate the defendants' right to assert individualized affirmative defenses.  I wonder whether the defendant would actually be able to marshall the indivdualized proof against each individual plaintiffs' claims as they said they wanted to do.  I'd like to see a court call the defendants' bluff in one of these cases and actually see if defendants have enough evidence to exercise their right to assert individualized defenses in at least a sampling of cases -- not to dispose of the whole litigation, but just to inject some realism into the proceedings.  There's also a deeper issue - what is due process anyway? Is the touchstone tradition? If so, new developments in statistics and probability theory are useless to the doctrine; due process is really horse and buggy process which requires an individual hearing.  Or is it about what process is due from either a participatory, accuracy or other metric?  If so, there might indeed be something to talk about. 

ADL