Wednesday, July 3, 2019

Roundup Verdict Tracker

California State Court 

Johnson v. Monsanto,  compensatory: $39 million, punitive: $250 million.  Verdict reduced to $78 million, currently on appeal.

Pilliod v. Monsanto, compensatory: $55 million, punitive: $2 billion. 

 

Federal Court  

Hardeman v. Monsanto, Northern District of California, compensatory: $5 million, punitive: $75 million.  

 

July 3, 2019 in Aggregate Litigation Procedures, Products Liability, Punitive Damages, Trial | Permalink | Comments (0)

Wednesday, June 12, 2019

Come for the Opioids, Stay for the Civil Procedure

Last week, I sat down with Nicolas Terry, who hosts the podcast, The Week in Health Law. We discussed the role of repeat players in multidistrict litigation leadership (on both sides), the functions and control of MDL judges, the ongoing opioid litigation, and my new book--Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.

If you like podcasts and civil procedure, it might be just the thing for a morning commute. Just click on the icon below.

Twihl_20x20 If you're interested in the opioid suits and online reading is more your style, then you might prefer the conversation that Jenn Olivia and I had, which is written up on Harvard Law's Bill of Health (click on the icon below).  While you're on the blog, you'll find lots of useful information if you search by category: Opioid Crisis.

PFC_Logo-New-Horizontal_slide_590_380_80_c1

June 12, 2019 in Aggregate Litigation Procedures, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Regulation, Settlement | Permalink | Comments (0)

Tuesday, June 11, 2019

Does Multidistrict Litigation Deny Plaintiffs Due Process?

As part of Law 360's focus on access to justice, I published this perspectives piece on MDL: Does Multidistrict Litigation Deny Plaintiffs Due Process?  It's freely accessible through the link without requiring any log-in information. 

I thought it might be of interest to readers of our blog because of its topic and its focus on the Opiate proceeding before Judge Polster.

June 11, 2019 in Aggregate Litigation Procedures, Current Affairs | Permalink | Comments (0)

Thursday, April 25, 2019

Updated: When Trial is Too "Expensive" for Law Firms

After posting this yesterday, Bryan Aylstock reached out to provide some procedural history.  While his information better contextualizes the letter that went out, as I note below, I am still troubled by the idea that a lawyer would dismiss his client's case unless she takes some affirmative action to the contrary. As my conversations with some of the affected plaintiffs reflect, at least some feel a great deal of pressure to dismiss their claims.

As I noted, for the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I'd heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of discovery while they continue to evaluate their settlement prospects.

The text of the AWKO letter (included fully below) tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial."  As I suggested yesterday, I suspect that’s what most plaintiffs want. (As plaintiffs often tell me, “this is not about the money for me.”)

Let me fill in some background on the “aggressive deadlines” order that the letter refers to. Judge Goodwin has maintained an “inactive docket” as well as an active docket of pelvic mesh cases.  (There were, at one point, over 104,000 cases pending before him.) On February 4, 2019, he issued Pretrial Order 328 in the Ethicon MDL, which moves a list of cases from the inactive to the active docket.  He begins his order by saying:

Despite representations in inactive docket orders proposed by the parties and entered by the court, that the cases on Exhibit A have been settled or entered into a settlement model, and despite repeated warnings by the court that cases will not remain on the inactive docket indefinitely, the number of cases on the inactive docket remains in the thousands.

Judge Goodwin thus removed the listed cases from the inactive to the active docket and put discovery deadlines in place. For instance, plaintiffs had to file their fact sheets by February 15, 2019; written discovery requests by March 25, 2019; and expert disclosures by May 24, 2019.

After a case completes the discovery process and goes through dispositive motions, like motions for summary judgment, it is ready either for trial in the Southern District of West Virginia (the location of the MDL) or a remand to its original court where it could then be placed on a trial docket. 

The AWKO letter says: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."

Consequently, the firm wants to dismiss clients’ claims that are in the settlement process:

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs.

As Aylstock explained, this letter only went out to clients who had indicated that they’d like to consider a potential settlement.  The firm negotiated an aggregate settlement with Ethicon awhile ago, and these cases are being processed through that program. 

When I asked him whether there was a walkaway provision within the deal that was driving this, he said that there was a walkway threshold (meaning that Ethicon could walk away from the deal unless enough plaintiffs participate), but that it was “exceedingly low” and had been already been met (and was met shortly after it was negotiated).

In my earlier post, I said that the law firm wanted their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial.  (The letter mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and recommends that the client accept "your Ethicon settlement offer.")

Aylstock said that he had no problem taking cases to trial and had lawyers flying around the country taking depositions all the time. Nor was he hesitant about spending money the money to do so.

Instead, he wanted those clients who were in the settlement process not to have to go through discovery expenses if they planned to take the settlement offer. He said a client would be no worse off for having a case dismissed without prejudice under the agreement he negotiated with Ethicon, which waives the statute of limitations. 

Judge Goodwin has stopped accepting cases into the MDL, so presumably if a case were dismissed and refiled it would be in a state or federal court outside of the MDL proceeding.  Aylstock likewise told me that the filing fee to refile a lawsuit would be far less than the costs of experts and that he thinks a plaintiff would not be back to square one because the firm would have only case-specific discovery left to do.

As I told him, what I found most troubling about the AWKO letter was this phrase: "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice." To me, this seems like a powerful use of default rules to push plaintiffs toward settlement.

The letter apparently went out sometime in the last week, and it gave recipients only until April 24 to decide.  The folks with whom I spoke had this to say about their conversations with the firm’s case managers:

  • Client 1: “I talked live with Ann and her tone was like a bull in a china shop. . . . She said, ‘You need to be ready for deposition in two weeks, hiring your own experts and witnesses, paying your way to fly around the country at your own dime.’”
  • Client 2: “I let them know that I do NOT want them to dismiss my case. They have told me that means I will likely be dropped from them. . . . Right now they are trying to bully me, and that just isn't working!”

Perhaps other clients feel differently.  Still, two points bear mention:

First, the lawyers are the ones who initially bear the expenses associated with discovery and trial, not clients. Ultimately, costs and attorneys' fees are deducted from any judgement or settlement that the plaintiff receives, but those should not be out-of-pocket expenses for the clients.

Second, it’s apparent that at least some of AWKO’s clients are under the impression (right or wrong) that they must settle or the law firm will no longer represent them.  When I asked Aylstock about this, he said, in a much more detailed way, that it depends on an individual analysis for each client.

In general, before withdrawing from representing a client, Fla. R. Jud. Admin. 2.060 requires attorneys to file a motion setting out the reasons for withdrawing and the client’s name and address.  The motion must be set for a hearing, and the firm must serve the motion on both the client and opposing counsel.

In contingency fees governed by Florida law, Faro v. Romani, 641 So. 2d 69, 71 (Fla. 1994), holds that when an “attorney withdraws from representation upon his own volition, and the contingency has not occurred, the attorney forfeits all rights to compensation.”  Only “if the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule” is the withdrawing attorney entitled to a fee.

And Rule 4-1.2(a) makes it clear that: “A lawyer must abide by a client’s decision whether to settle a matter.”  Florida also has detailed rules for contingent fees that I found interesting:

(i) Without prior court approval as specified below, any contingent fee that exceeds the following standards are presumed, unless rebutted, to be clearly excessive:

Before the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action:
  • 1.) 33 1/3% of any recovery up to $1 million; plus 2.) 30% of any portion of the recovery between $1 million and $2 million; plus 3.) 20% of any portion of the recovery exceeding $2 million.
After the filing of an answer or the demand for appointment of arbitrators or, if no answer is filed or no demand for appointment of arbitrators is made, the expiration of the time period provided for such action, through the entry of judgment:
  • 1.) 40% of any recovery up to $1 million; plus 2.) 30% of any portion of the recovery between $1 million and $2 million; plus 3.) 20% of any portion of the recovery exceeding $2 million.
If all defendants admit liability at the time of filing their answers and request a trial only on damages:
  • 1.) 33 1/3% of any recovery up to $1 million; plus 2.) 20% of any portion of the recovery between $1 million and $2 million; plus 3.) 15% of any portion of the recovery exceeding $2 million.
An additional 5% of any recovery after institution of any appellate proceeding or postjudgment relief or action is required for recovery on the judgment.

Comments welcome from all sides.  They will not show up immediately, but I will approve them as I see them coming in.

The entire letter follows: 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

 After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye

Case Manager

Transvaginal Mesh Litigation
Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200
Pensacola, FL 32502

Phone: (850) 202-1010

Toll Free: (888) 255-AWKO (2956)
Facsimile: (850) 916-7449
Email: ajaye@awkolaw.com

 

April 25, 2019 in Aggregate Litigation Procedures | Permalink | Comments (1)

Wednesday, April 24, 2019

When Trial is Too "Expensive" for Law Firms

For the last few months, I've been in touch with many TVM and POP mesh plaintiffs as part of a procedural justice study that I'm conducting.  Recently, I've heard from multiple sources that the Aylstock, Witkin, Kreis & Overholtz law firm has been sending out letters to clients who haven't settled, suggesting that they dismiss their case without prejudice to avoid the expense of trial.
 
Who bears trial expenses?  The lawyers, at least initially.  Ultimately, costs and attorneys' fees are deducted from any judgment or settlement.  
 
The text of the letter tells recipients that "Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial." Good, right? That's what most plaintiffs want, I suspect.
 
But wait. The letter continues: "The imposition of these deadlines creates a problem--complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult."  Now, that seems odd.  Why would that be?  A credible threat of trial is what raises settlement values and creates the pressure to settle in the first place.
 
Here's the clincher: the firm wants its clients to dismiss their claim without prejudice to avoid trial. "To avoid this problem" (i.e., the problem of expense for the law firm) "we have reached a potential agreement with Ethicon to dismiss your claim without prejudice. This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs."
 
Wow.  So, the law firm wants their clients to dismiss their cases so that the firm can avoid the expense of actually having to take a case to trial?  The letter then mentions that the firm "believe[s] that it is in your best interest to dismiss your Ethicon case without prejudice" and notes that it recommends that the client accept "your Ethicon settlement offer."
 
Then, "unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice."
 
I'm speechless.
 
The entire letter has been replicated below: 
 

*CORRESPONDENCE ALSO SENT AS HARDCOPY VIA UPS*

Good Morning,

We hope this email finds you well. We would like to share important an important update regarding your transvaginal mesh claim against Ethicon.

As you know, your case is pending in the Ethicon multidistrict litigation (MDL) in West Virginia, overseen by Judge Goodwin. Despite the fact that your Ethicon case is part of a settlement process, Judge Goodwin has set a series of aggressive deadlines designed to push your case towards a trial.  The imposition of these deadlines creates a problem – complying with them will require significant time and significant expense which, in turn, will make settling your Ethicon claim in the near future more difficult. 

To avoid this problem, we have reached a potential agreement with Ethicon to dismiss your claim without prejudice.  This means that your case will no longer be subject to the deadlines that will decrease any near term settlement amount to you by increasing your costs. Because the proposed dismissal is without prejudice, you are entitled to re-file your case against Ethicon in the event that you ultimately reject your settlement offer.  Ethicon, however, has required that any such refiling not happen for one year from the date of dismissal.  Ethicon wants to insure that the settlement process be allowed to run its course without interference from cases in litigation.

  After considering the pros and cons of this potential agreement with Ethicon, we believe that it is in your best interest to dismiss your Ethicon case without prejudice.  We have written to you separately regarding your Ethicon settlement offer and have recommended that you accept the same, however, you chose to request a further review with the Special Master. Though the Special Master is currently reviewing those requests, we believe that the proposed agreement regarding dismissal without prejudice strikes a balance that allows the settlement process to continue without interference.

Accordingly, unless you direct us not to, we will be dismissing your claim against Ethicon without prejudice.  If you do not want us to dismiss your claim without prejudice in accordance with the above, you must contact us by April 24, 2019, and tell us the same.

If we do not hear from you on or before that date, we will dismiss your claim against Ethicon without prejudice. If you have any questions or concerns, or wish to inform us of your desire not to dismiss you claim, our toll free number is (877) 810-4808. We look forward to hearing from you.

Ann Jaye

Case Manager

Transvaginal Mesh Litigation
Aylstock, Witkin, Kreis & Overholtz

17 E. Main Street, Suite 200
Pensacola, FL 32502

Phone: (850) 202-1010

Toll Free: (888) 255-AWKO (2956)
Facsimile: (850) 916-7449
Email: ajaye@awkolaw.com

 

April 24, 2019 in Aggregate Litigation Procedures | Permalink | Comments (2)

Thursday, February 7, 2019

Nikki Chamberlain on Class Actions in New Zealand

Professor Nikki Chamberlain (University of Auckland) has posted her article, Class Actions in New Zealand: An Empirical Study, 24 New Zealand Bus. L. Q. 132 (2018).  Here is the abstract:

This article contains the first empirical study on opt-in class actions, which are referred to as representative actions, filed under r 4.24 of the High Court Rules 2016 in the New Zealand High Court and the New Zealand Employment Court. The findings of this study reveal that opt-in class actions are now part of the New Zealand legal landscape in substance, if not in name. In particular, the data reflects the rise of consumer class actions in New Zealand, which, in part, have been assisted by litigation funders entering into the market. However, despite an increase in opt-in class actions, New Zealand’s civil procedure mechanism for managing class action litigation is inefficient, uneconomic and creates significant uncertainty for all class action stakeholders. This article examines the empirical data, the trends in the data, and the reasons for those trends. It concludes by discussing why reform is required against the backdrop of this study and New Zealand’s procedural process values as contained in the High Court Rules.

 

February 7, 2019 in Aggregate Litigation Procedures, Class Actions, Foreign, Mass Tort Scholarship, Procedure | Permalink | Comments (0)

Wednesday, February 6, 2019

Eri Osaka on the Fukushima Nuclear Disaster Compensation Scheme

Professor Eri Osaka (Toyo University) has posted to SSRN her manuscript, Current Status and Challenges in the Fukushima Nuclear Disaster Compensation Scheme: An Example of Institutional Failure?  Here is the abstract:

The Fukushima Nuclear Disaster brought widespread and long-term damage. Soon after the accident, the government hastily set up the Fukushima nuclear disaster compensation scheme under the existing law to deal with a large number of compensation claims by the victims. It published the compensation guidelines and established the nuclear damage alternative dispute resolution (ADR) process to promote the voluntary efforts by Tokyo Electric Power Company (TEPCO) as well as victims to resolve their nuclear damage disputes. It also has been pouring public money into TEPCO.

This paper examines whether the scheme has been functioning well, in other words, whether the victims have been compensated through the scheme. Section 2 gives an overview of the scheme. It begins with the Act on Compensation for Nuclear Damage, the basis of the current scheme. Next it explains the responsibilities fulfilled by the government and TEPCO under the scheme. It also briefly addresses the current discussion on the scheme reform. As it turns out, the current scheme is far from successful. Then, Section 3 focuses on litigation as a realistic tool to change the malfunctioning scheme under existing conditions. It introduces a discussion of the current development of cases pursuing just and equitable relief for the nuclear damage victims. However, litigation is not a panacea. Section 3 also discusses its obstacles and possible solutions.

 

February 6, 2019 in Aggregate Litigation Procedures, Environmental Torts, Foreign, Mass Disasters, Mass Tort Scholarship, Procedure | Permalink | Comments (0)

Tuesday, December 4, 2018

Are you a plaintiff involved in a women's health mass tort? Or do you know people who are?

Today's post is really a plea for help with a new project that I've just started.  I've created a new survey that allows plaintiffs to tell me about their interaction with the court system and their attorneys.

I’m hoping to hear directly from plaintiffs who are involved in women’s health mass torts like pelvic mesh, breast implants, NuvaRing, Mirena, and Yasmin/Yaz. 

If you're a plaintiff involved in one of those cases, please consider taking this short survey.  It will ask you questions about whether you had opportunities to tell your side of the story and present evidence, how you felt your lawyer handled your case, how you felt about the process and your outcome, and whether you used third-party funding.

If you're a lawyer or reporter, I'd love your help publicizing the project. Participants' answers will be kept completely confidential, and I am not asking for details that would be covered by a confidentiality provision in a settlement.  

I am not affiliated with the courts or with the lawyers on either side in any way and I do not have any clients of my own.  I don’t consult for any of the lawyers in these cases, and all of my funding comes from the University of Georgia—not from a private company or interest.  In other words, I have no financial ties that affect the way I conduct my research.

Here's more information about me and the research I am doing: https://www.elizabethchambleeburch.com/womens-mdls

If you have questions, please feel free to contact me--if confidentiality is important, please use masstortsuga@gmail.com rather than my University of Georgia email.  

Screenshot 2018-12-04 12.45.43

December 4, 2018 in Aggregate Litigation Procedures, Current Affairs, Lawyers, Mass Tort Scholarship, Medical Devices - Misc., Pharmaceuticals - Misc., Prempro, Products Liability | Permalink | Comments (0)

Tuesday, October 2, 2018

Types of Litigation Finance (for journalists)

I'm at a conference on litigation funding and realized it might be useful, especially for journalists, to think through what we mean when we talk about litigation funding or litigation finance.  

Journalists and others tend to describe all forms of investment that support litigation under one umbrella: “litigation funding.”  But in fact the litigation funding market is highly specialized. Types of litigation funding should be considered separately because they are very different financial products with different costs and benefits.   This is my stab at setting out the parameters of this space: 

  • Commercial litigation funding. This type of litigation funding is offered by investors and can be used by either plaintiffs or defendants. The funding agreements involve sophisticated parties on both sides, either firms or clients.  It well recognized in international arbitration and is increasingly used in other types of commercial cases.   Funding may be for an individual litigation or for a portfolio of suits. 
  • Appeals funding. This type of funding is given to lawyers against fees (often contingency) and to clients against expected recoveries. 
  • Patent litigation funding. These involve three types of entities.  First, some entities purchase patents and prosecute patent infringers but have no relationship to the inventors.  Second,  a company may sue the infringers and give a small percentage of the recovery to the inventors.  Third, universities or companies may monetize their patent portfolios using a funder. 
  • Law firm financing. Law firms may obtain financing usually structured as a loan with their receivables as collateral.
  • Consumer litigation funding. These funders provide small retail level non-recourse loans to individual tort or contract plaintiffs, typically under $5,000.  This type of funding is the most like “payday” loans. 
  • Mass tort monetizations. These types of funders may advance money to lawyers against future earned fees and to clients against expected recoveries in aggregate tort litigation such as multidistrict litigation after a settlement matrix is in place.  Depending on how it is used, this may be more like law firm financing for a portfolio of cases of a particular type (cases filed against a particular defendant for example) or consumer litigation funding, directly offered to the client.  These funders specialize in mass torts, but loans to lawyers should be differentiated from advances to clients because lawyers are sophisticated market actors who can protect themselves, whereas tort clients tend to be more vulnerable. 

(This was edited to correct the amount that individuals usually obtain from consumer funding).  

October 2, 2018 in Aggregate Litigation Procedures, Conferences, Lawyers, Mass Tort Scholarship, Regulation | Permalink | Comments (0)

Wednesday, August 16, 2017

What duties do lead counsel owe plaintiffs in multidistrict litigation?

There is a persistent question in multidistrict proceedings: what duties do lead lawyers owe to individual plaintiffs who have no direct attorney-client relationship with them?

That's the question at the heart of a recent opinion by Judge David Herndon in the Yazmin/Yaz litigation, although the opinion itself is about whether remand to state court is appropriate. (Spoiler: Judge Herndon thinks it's isn't.)

After the negotiating parties in the underlying MDL reached a global settlement for the ATE (arterial thromboembolism) cases, Judge Herndon issued a series of orders designed to usher plaintiffs into the deal.  One of those was a Lone Pine order that required every non settling plaintiff to produce fact sheets, over three years worth of pharmacy and medical records, and a case-specific expert on general and specific causation--all within three months.  Those who didn't comply faced dismissal.

As you might guess, the plaintiffs currently suing missed that deadline and their various attorneys failed to respond to Bayer's motion to dismiss.  As such, with new counsel, they are now suing lead counsel (Micheal S. Burg, Roger Denton, Michael A. London, and Mark R. Niemeyer) for legal malpractice under Illinois common law.

What question lies at the heart of the case?  You guessed it: what duties do lead lawyers owe to non-client plaintiffs in a multidistrict proceeding?

Returning for a moment to the question of federal jurisdiction, given the way that the complaint is framed, jurisdiction appears to lie under CAFA, 28 USC 1332(d)(2) (it's pled on behalf of a class).  But the parties take different routes.  Disgruntled plaintiffs argue that it's a mass action that contains fewer than 100 people (despite it being pled as a class action), and defendants argue that it presents federal question jurisdiction under 1331.  Relying on Grable and Gunn, the court agrees.

I confess, I'm not yet convinced that these state-law malpractice claims implicate a federal issue under Grable.

Either way, as Judge Herndon (and lead lawyers) framed it, even if the dissatisfied plaintiffs sued individually, federal question jurisdiction would lie over their claims, thereby allowing defendants to remove and send it to Judge Herndon. Judge Herndon, you may recall, presided over the original claims and appointed the leaders in the first place.

There hasn't been a ton written on the fiduciary question, but Professor Charlie Silver's work comes readily to mind.  In his article, The Responsibilities of Lead Lawyers and Judges in Multidistrict Litigation, he writes:

Given that both lawyers who represent individual claimants and lawyers who handle class actions are fiduciaries, it would be surprising to discover that lead lawyers in MDLs were not. . . . Given the dearth of authority directly on point, judges may take guidance from other bodies of law.  If they do, they will quickly conclude that lead attorneys are fiduciaries.  Mass tort lawyers are fiduciaries, and so are lawyers who represent plaintiff classes.  These examples are the most analogous to lead counsel. 

My own view is similar.  Without imposing fiduciary duties on lead lawyers, all sorts of mischief could result.  Of course, whether lead lawyers in Yasmin/Yaz breached those duties in a way that amounts to malpractice is a separate question.  But, given the lengths they've taken to have the malpractice claims heard before Judge Herndon, leaders clearly think they have a much better chance there than in IL state court.

Casey et. al. v. Roger Denton, et. al. is worth following.  Here are a few of the relevant documents:

Download Casey v. Denton - 53 - 08.11.17 - Order on Motion to Remand

Download Casey v. Denton - 1 - 05.16.17 - Ex. 2 Casey Complaint

Download Casey v. Denton - 1 - 05.16.17 - Notice of Removal

August 16, 2017 in Aggregate Litigation Procedures, Current Affairs, Mass Tort Scholarship, Products Liability | Permalink | Comments (0)

Sunday, August 6, 2017

Recent Judicial Panel on Multidistrict Litigation Hearings in Los Angeles

Sunday, July 23, 2017

Skadden Summer 2017 Class Action Chronicle

Skadden Arps has posted its Class Action Chronicle for Summer 2017, which includes updates on Third-Party Litigation Funding, Class Certification Decisions, and Class Action Fairness Act Decisions.

July 23, 2017 in Aggregate Litigation Procedures, Class Actions, Lawyers, Procedure | Permalink | Comments (0)

Saturday, July 15, 2017

Judge Weinstein, 50 Years on the Bench

Judge Jack Weinstein of the Eastern District of New York, who is noted for his opinions in many mass torts including Agent Orange, has surpassed 50 years on the bench.  Shibani Gokhale, At 95, Weinstein Keeps Going After 50 Years on Bench, Law.com (July 13, 2017).

July 15, 2017 in Aggregate Litigation Procedures, Lawyers, Procedure, Products Liability | Permalink | Comments (0)

Friday, June 2, 2017

A Note to Mass Tort Plaintiffs on HR 985

HR 985, the Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, has now passed the House and is pending in the Senate's Committee on the Judiciary.  How might that bill affect plaintiffs involved in mass torts like mesh, Essure, Yaz, Mirena, NuvaRing, Ortho Evra, Power Morcellator, or the many hip implant suits?

Simply reading the bill, I'm afraid, won't help too much.  It's shrouded in legalese.  As such, I've marked up the bill to explain in non-legalese which provisions help and hurt mass-tort victims and consumers.

Many of the class action provisions in HR 985 don't affect mass-tort plaintiffs at all since those lawsuits rarely proceed as class actions (albeit, there are some notable exceptions, like the NFL concussion cases and the injuries incurred during the clean-up of the BP oil spill; both litigations were certified as settlement class actions).  

There is, however, a possibility for judges to use class actions as a means to step in and ensure that plaintiffs are being adequately represented (and that resulting settlements are fair, reasonable, and adequate).  How?  Through the issue class action.  Unfortunately, as HR 985 is currently written, it would completely eliminate that possibility.  

I've studied MDLs for many years now and have written articles that are critical of both repeat player plaintiffs' attorneys and the manner in which judges sometimes handle these cases. Over the past four years, I've collected data on and analyzed 73 multidistrict proceedings.  Although I'm still in the process of writing a book about my findings, one thing has become glaringly clear to me: the systematic lack of checks and balances in our courts seem to profit everyone but the plaintiffs.

Analyzing the deals repeat players make, the “common-benefit” attorneys’ fees that the lead plaintiffs’ attorneys receive to run the proceedings, and the judicial rulings in mass-tort cases consolidated over 22 years and settled over 12 years reveals a disturbing pattern: repeat plaintiff and defense attorneys persistently profit from the current system.

Corporate defendants end sprawling lawsuits and lead plaintiffs’ lawyers broker deals that reward them handsomely and sometimes pay litigants very little. For example, in litigation over the acid-reflux medicine, Propulsid, only 37 of 6,012 plaintiffs (0.6 percent) recovered anything through the strict settlement program. Their collective recoveries totaled no more than $6.5 million. Yet, the lead plaintiffs’ attorneys received over $27 million in common-benefit attorneys’ fees, vividly illustrating the worry that a corporate defendant might trade higher fees for less relief to plaintiffs.

So, is reform needed?  Absolutely.  Is HR 985 the right ticket?  No, not as it's currently written.

As such, I've marked up the bill in a way that begins to instill the necessary reforms and eliminates (or changes) provisions that set up further (and unnecessary) roadblocks for plaintiffs.  It also explains what the proposed provisions do in plain English:  Download HR985 Burch Mark-up

If you want some version of HR 985 to pass, please consider forwarding this revised version to your Senator and do not support the bill as it reads now.

For those who care more about the legalese, I was contacted by a House subcommittee to provide nonpartisan, academic commentary on the bill, which I did.  That write up is included here (note, however, that this is a commentary on the original House bill and some changes have been made to the current bill that address a few of the concerns I raised):  Download Burch Final Comments on Fairness in Class Action Litigation Act

There's no need to take just my word for it, though.  Every other academic that I know of opposes this bill, as has the Federal Rules Committee.  This committee, formally known as the Committee on Rules of Practice and Procedure, just happens to include Neil Gorsuch, now Justice Gorsuch (of the U.S. Supreme Court), whose views are reflected in the letter below as well.

Here's a link to that letter:  Download Federal Rules Committee Letter
As well as to the American Bar Association's letter opposing HR 985:  Download ABA's Letter on HR 985

And here are links to other academic commentary - 

Professor John C. Coffee, Jr. (Columbia Law School):  Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog
Professor Howard Erichson (Fordham Law School):  Download Erichson-hr985-letter
Professor Myriam Gilles (Cardozo Law School):  Download Gilles Letter to James Park on HR 985

June 2, 2017 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Settlement | Permalink | Comments (0)

Friday, May 12, 2017

Iowa Class Action Against Grain Plant Affirmed

An Iowa class action (subject to CAFA's local class exception) has been approved by the Iowa Supreme Court.  Here is the report from Iowa radio.   You can find the opinion here: Freeman v. Grain Processing Corporation.  

The court considers arguments that individual defenses ought to defeat class certification, as well as arguments based in the Supreme Court's opinions in Wal-Mart and Tyson Foods and rejects them.  It explained: 

GPC argues that class certification will deny it the fair opportunity to contest whether individual homeowners have suffered injury or damage. We disagree. The plaintiffs have proposed a formula for damages. GPC can contest the appropriateness of that formula before the jury. If a special jury verdict is entered approving this formula and that verdict is supported by substantial evidence, then potentially this formula can be used in subsequent claims administration by the court while preserving GPC’s due process and jury trial rights. If no damage formula is approved, then there would have to be subsequent individual trials on damages. Either way, GPC’s rights would be protected.  (33)

One additional aspect of the case is worth noting.  The Court specifically differentiates this nuisance class action, which alleges injury in the form of property damage, from a personal injury action and distinguishes some federal precedent on that basis.  As I show in a forthcoming article in NYU Law Review called Mass Tort Class Actions: Past, Present and Future, that is a common pattern for mass tort classes that have been certified for litigation. For example, the first asbestos class actions certified were property damages classes.  In that article, I review all the mass tort class actions considered by the federal court from the promulgation of the class action rule through Amchem, and explain how they relate to developments in tort law during the same period.  I will be posting this article to SSRN in July.

 

May 12, 2017 in Aggregate Litigation Procedures, Class Actions, Environmental Torts, Mass Tort Scholarship | Permalink | Comments (0)

Friday, March 3, 2017

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.

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.

March 3, 2017 in Aggregate Litigation Procedures, Asbestos, Class Actions, Current Affairs, Informal Aggregation, Lawyers, Procedure, Products Liability | Permalink | Comments (0)

Tuesday, February 21, 2017

Academic Roundup on HR 985

Academics have been busy this week providing commentary on HR 985, the "Fairness in Class Action Litigation Act of 2017."  Here's a round-up of the commentary thus far (and please do let me know if I've missed someone).

John Coffee (Columbia):   Download Coffee - How Not to Write a Class Action “Reform” Bill _ CLS Blue Sky Blog

Howard Erichson (Fordham): Download Erichson-hr985-letter

Myriam Gilles (Cardozo):  Download Gilles Letter to James Park on HR 985

And mine, Elizabeth Chamblee Burch (Georgia):  Download Burch Final Comments on Fairness in Class Action Litigation Act

For those of you who like up to the minute commentary, several academics and reporters keep very active twitter accounts that track the bill: @adam_zimmerman, @elizabethcburch, @HowardErichson@PerryECooper

 

February 21, 2017 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0)

Saturday, February 18, 2017

H.R. 985: An Attempt to Undermine Class Actions & MDL

Class actions and MDL have real problems that need fixing. I have written about these problems at length, most recently in Aggregation as Disempowerment. But the new bill that just passed the House Judiciary Committee does not fix any of the real problems. Instead, it is a crass attempt to undermine any effort by plaintiffs to seek justice in mass disputes.

The bill, H.R. 985, the "Fairness in Class Action Litigation Act of 2017," seeks to reduce defendants' exposure to liability for mass harms by tightening the standard for class certification, imposing an ascertainability requirement, delaying the payment of class counsel fees, limiting the use of issue class actions, expanding diversity jurisdiction, mandating Lone Pine orders in MDL, banning trials in MDL, and capping MDL personal injury attorneys' fees at 20%, among other things. As Beth Burch noted, the bill does not make things fairer for those who have been wronged.

I would like to see thoughtful reforms to help courts distinguish meritorious from non-meritorious claims. I would like to see thoughtful reforms to protect claimants from unfair settlements in both class actions and MDL. And I would like to see thoughtful reforms to ensure that fees reflect what lawyers actually accomplish, not inflated settlement valuations. The abuses in class actions and non-class mass litigation happen mostly in settlement, not litigation and adjudication. But that is not what this bill would address. Instead, its provisions are aimed mostly at protecting defendants from the kinds of class actions and mass litigation that actually empower consumers, employees, citizens, and others to fight corporate and government wrongdoing.

Even where the bill aims at real problems (such as its provision to expand diversity jurisdiction to reach plaintiffs suing diverse defendants but who join with a non-diverse plaintiff), it goes too far, failing to match its solution to the problem of magnet jurisdiction in nationwide mass disputes. 

In my letter to Congressional leaders, I attempt to explain which of the provisions of H.R. 985 are especially problematic, and why. If you're interested, you can find the letter here:

Download Erichson HR985 letter

 

February 18, 2017 in Aggregate Litigation Procedures, Class Actions, Procedure | Permalink | Comments (0)

Monday, February 13, 2017

"Fairness" in Class Action Litigation Act

The U.S. House of Representatives is considering a bill that would substantially curtail the usefulness of class actions and multidistrict litigation, but would not make things "fairer" for class members.  

Alison Frankel has a great write-up on the proposal that includes my preliminary comments along with Professor Myriam Gilles's comments.  I'm heartened that representatives are reaching out to academics, because I have a number of concerns with the bill's proposals.  If you are likewise concerned, then you should weigh-in, too.  The House is marking up the bill on Wednesday.

My comments are available here: Download Final Comments on Fairness in Class Action Litigation Act

February 13, 2017 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0)

Sunday, September 18, 2016

Bradt and Rave on The Information-Forcing Role of the Judge in Multidistrict Litigation

Professors Andrew Bradt (UC Berkeley Law) and D. Theodore Rave (U. Houston Law) have posted to SSRN their article, The Information-Forcing Role of the Judge in Multidistrict Litigation, Cal. L. Rev. (forthcoming).  Here is the abstract:

In this article, we address one of the most controversial and current questions in federal civil procedure: What is the proper role of the judge in the settlement of mass-tort multidistrict litigation, or MDL? Due to the Supreme Court’s hostility to class actions, MDL proceedings have begun to dominate the federal civil docket. To wit, nearly half of the federal civil caseload is MDL. Although MDL is structurally different from a class action, the procedure replicates — and in many ways complicates — the principal-agent problems that plagued the class action. Like a class action, nearly all MDL cases are resolved by a comprehensive global settlement agreement, but, unlike a class action, in MDL the judge has no authority to reject a settlement agreement as unfair to the potentially thousands of parties ensnared in the litigation. Here, we argue that, given this limitation, the judge should act as an “information-forcing intermediary,” who reserves the right to offer a non-binding opinion about the fairness of the settlement to send an easy-to-understand signal directly to the parties about their lawyers’ performance. Such a signal will mitigate many of the agency problems inherent to MDL and allow parties to exercise informed consent when choosing whether to accept a settlement. More generally, this article is a call for judges to embrace an information-forcing role at the head of consolidated MDL proceedings.

September 18, 2016 in Aggregate Litigation Procedures, Mass Tort Scholarship, Procedure, Settlement | Permalink | Comments (0)