Mass Tort Litigation Blog

Zimmerman on Bellwether Settlements

Adam Zimmerman has posted his new article "Bellwether Settlements" to SSRN.  The abstract is below:

This Article examines the use of bellwether mediation in mass litigation.
Bellwether mediations are different from “bellwether trials,” a practice
where parties choose a representative sample of cases for trial to determine
how to resolve a much larger number of similar cases. In bellwether
mediations, the parties instead rely on a representative sample of settlement
outcomes overseen by judges and court-appointed mediators.

The hope behind bellwether mediation is that different settlement
outcomes, not trials, will offer the parties crucial building blocks to forge a
comprehensive global resolution. In so doing, the process attempts to (1)
yield important information about claims, remedies, and strategies that
parties often would not share in preparation for a high-stakes trial; (2) avoid
outlier or clustering verdicts that threaten a global resolution for all the
claims; and (3) build trust among counsel in ways that do not usually occur
until much later in the litigation process.

The embrace of such “bellwether settlements” raises new questions about
the roles of the judge and jury in mass litigation. What function do courts
serve when large cases push judges outside their traditional roles as
adjudicators of adverse claims, supervisors of controlled fact-finding, and
interpreters of law? This Article argues that, as in other areas of aggregate
litigation, courts can play a vital “information-forcing” role in bellwether
settlement practice. Even in a system dominated by settlement, judges can
help parties set ground rules, open lines of communication, and, in the
process, make more reasoned trade-offs. In so doing, courts protect the
procedural, substantive, and rule-of-law values that aggregate settlements
may threaten.

Litigation Reform's Legislative Prospects

Bruce Kaufman, the senior legal editor at Bloomberg BNA, has written a very informative series of articles examining the prospects that the House, Senate, and President will enact wide-ranging tort and civil justice "reform" legislation.  This legislation includes:

• HR 985, the "Fairness in Class Action Litigation Act"
• HR 725, the "Innocent Party Protection Act"
• HR 469, the "Sunshine for Regulatory Decrees and Settlements Act"
• HR 720, the "Stop Settlement Slush Funds Act" or "Lawsuit Abuse Reduction Act"
• and HR 906, the "Furthering Asbestos Claims Transparency Act"

All three articles are worth a careful read.  Links and downloads included below, courtesy of Bruce and Bloomberg BNA.

• Part 1: Trump to Weigh Litigation Changes,  Download BNA - Trump to Weigh Litigation Changes Long Coveted by Business
• Part 2: Push to Enact Civil Justice Bills Follows Industry Playbook,  Download BNA - Push to Enact Civil Justice Bills Follows Industry Playbook
• Part 3: Trump Seen as Supportive of Business-Backed Litigation Bills,  Download BNA - Trump Seen as Supportive of Business-Backed Litigation Bills

For those of you who missed the academic roundup on HR 985, you can find it here.

Floor debate on at least four of the bills (including the now merged HR 985 and HR 906, class actions and asbestos) is scheduled to begin as soon as the week of March 6.  A seventh bill on medical malpractice reform, HR 1215, may be voted on the week after March 6.