Friday, September 23, 2022
Catherine Sharkey on Common Law Tort as Transitional Regulatory Regime and Climate Change Litigation
Catherine Sharkey, Segal Family Professor of Regulatory Law and Policy at NYU School of Law, has posted to SSRN her book chapter, Common Law Tort as a Transitional Regulatory Regime: A New Perspective on Climate Change Litigation, in Climate Liberalism: Perspectives on Liberty, Property, and Pollution (Palgrave: Jonathan Adler ed.) (2022 Forthcoming). Here is the abstract:
This book chapter explores how common law (state or federal) tort law evolves to fill regulatory voids. Particularly in areas that pose emerging, and incompletely understood, health and safety risks, common law tort liability holds out the potential for a dynamic regulatory response, one that creates incentives to develop additional information about potential risks and stimulates innovation to mitigate and/or adapt to these risks. In this temporal model, common law tort plays an essential role in transition, allowing for experimentation with various risk-minimization methods and remedial approaches until optimal approaches emerge which could then be enshrined in more uniform regulations.
The chapter identifies and assesses this dynamic, information-forcing role for common law tort liability in the realm of climate change litigation. In this model, common law tort, rather than a relic of the past, emerges as relevant to the future of environmental risk regulation, as indeed superior to legislation and/or regulation in terms of addressing newly-emergent risks. Moreover, the model suggests that the interaction between common law tort and federal statutes and regulations will remain interactive and dynamic over time.
The chapter then uses climate change litigation as a case study to shed light on the expansion of common law public nuisance to fill a regulatory void in this area, revealing the modern relevance of common law tort in environmental law. The chapter concludes with a preliminary evaluation of the extent to which experimentation among states and municipalities with regard to various adaptation measures fits the optimal model of common law tort in transition, with a final gesture toward forces at play that may stymie the common law’s evolutionary impulses.
Wednesday, February 6, 2019
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.
Friday, May 12, 2017
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.
Tuesday, June 28, 2016
The parties litigating over Volkswagen's emissions defeat device have submitted a proposed class action settlement to Judge Breyer for his approval. After the parties confer with him on June 30, he'll hear arguments over whether to approve that settlement on July 26.
The proposed settlement is available here: Download 1. The settlement money available to class members is a fund of $10,033,000,000, which is based on an assumed 100% buyback of all eligible vehicles and leased eligible vehicles.
If approved, parties who wish to object or opt out must do so before September 16, 2016 (p. 27 describes the opt-out process, which will have to be approved in conjunction with the notice to class members, and p. 28 describes the objection process). Class members must likewise complete and submit a valid claim form before September 1, 2018, and decide on their chosen remedy by December 30, 2018. Put differently, class members will need to take affirmative action to receive relief. Failing to submit a claim or to opt out means that their claims will be extinguished under the settlement (and through general res judicata principles).
The proposal provides VW owners with several options. They can:
- sell their car back to VW for the "vehicle value" (a term of art defined in the settlement on p. 16);
- receive restitution payments calculated based on a percentage of the vehicle value (some owners are eligible for loan forgiveness up to 30% of the vehicle value and owner restitution payment) - an estimate of those settlement payments is available here - Download 7
- terminate their car leases with no early termination penalty;
- modify their vehicle, which should help fix the emissions problems based on the different vehicles;
- or may receive both a restitution payment and a vehicle modification.
An overview of the options available to class members and proposed allocation plan is available here: Download 2
And the proposed short form notice, which is refreshingly straightforward is available for download here: Download 3. The longer notice is here: Download 4. And detailed information on the proposed 5-step claims program and administration is available here: Download 5.
Saturday, June 25, 2016
New Book on Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation
A new book, Class Actions in Context: How Culture, Economics and Politics Shape Collective Litigation, has been published by Edward Elgar Publishing (also available on Amazon). The editors of the book are Associate Dean Deborah Hensler (Stanford Law) and Professors Christopher Hodges (Oxford) and Ianika Tzankova (Tilburg Law). A global group of aggregate-litigation scholars contributed to the book, including Dean Camille Cameron (Dalhousie Law, Canada); Associate Dean Manuel Gomez (Florida International Law); Professors Agustin Barroilhet (U. Chile Law), Naomi Creutzfeldt (Research Fellow, Oxford), Axel Halfmeier (Leuphana U., Germany), Kuo-Chang Huang (Member, Taiwan national congress and formerly of National Cheng-Chi U., Taiwan), Jasminka Kalajdzic (Windsor Law, Canada), Alon Klement (Tel-Aviv U., Israel), Elizabeth Thornburg (SMU Law), and Stefaan Voet (U. Leuven & U. Hasselt, Belgium); and myself.
I authored a chapter, The promise and peril of media and culture: The Toyota unintended acceleration litigation and the Gulf Coast Claims Facility in the United States, and Professor Ianika Tzankova and I co-authored another chapter, The culture of collective litigation: A comparative analysis.
The book was a remarkable and fascinating undertaking, with many of us contributors gathering at several conferences across the globe over recent years to discuss and compare our ongoing research. Here is a brief description of the book:
In recent years collective litigation procedures have spread across the globe, accompanied by hot controversy and normative debate. Yet virtually nothing is known about how these procedures operate in practice. Based on extensive documentary and interview research, this volume presents the results of the first comparative investigation of class actions and group litigation ‘in action’.
Produced by a multinational team of legal scholars, this book spans research from ten different countries in the Americas, Europe, Asia and the Middle East, including common law and civil law jurisdictions. The contributors conclude that to understand how class actions work in practice, one needs to know the cultural factors that shape claiming, the financial arrangements that enable or impede litigation and how political actors react when mass claims erupt. Substantive law and procedural rules matter, but culture, economics and politics matter at least as much.
This book will be of interest to students and scholars of law, business and politics. It will also be of use to public policy makers looking to respond to mass claims; financial analysts looking to understand the potential impact of new legal instruments; and global lawyers who litigate transnationally.
We are honored that Professor Geoffrey Hazard (Emeritus, UC Hastings Law & Penn Law) offered the following comment on the book:
Class Actions in Context is a penetrating analysis of class and group actions worldwide. A group of international scholars brings to bear legal, economic, and political analyses of this evolving judicial remedy. It explores various substantive claims ranging from consumer protection to securities litigation. Drawing on case studies of practice as well as legal analysis, it demonstrates the importance of factors running from litigation finance to background cultural traditions. It is worth study in every legal system.
Friday, April 29, 2016
Cathy Sharkey (NYU Law) has posted a new piece on SSRN entitled The BP Oil Spill Settlements, Classwide Punitive Damages, and Societal Deterrence. Here's the abstract:
The BP oil spill litigation and subsequent settlements provide an opportunity to explore a novel societal economic deterrence rationale for classwide supra-compensatory damages. Judge Jack Weinstein was a pioneer in the field of punitive damages class certification. In In re Simon II, he certified a nationwide punitive-damages-only class in a multijurisdiction, multidefendant tobacco lawsuit. Using Judge Weinstein’s innovations in In re Simon II as an analytical lens, the Article evaluates the future prospects for classwide punitive damages claims.
Specifically, the Article considers how private litigants might adopt a societal damages approach in negotiating and achieving class action settlements. Class action settlements readily accommodate the “public law” dimension of societal damages, as demonstrated by the classwide punitive damages settlement with BP’s co-defendant Halliburton. Indeed, on closer inspection, even the BP compensatory damages class settlement has a surrounding aura of societal damages. For even that ostensibly purely compensatory arrangement included an unusual (and mostly overlooked) feature: a provision for supra-compensatory multipliers applicable to certain claimants. This Article advances the new idea that these supra-compensatory multipliers are a form of classwide societal damages embedded within the settlement, and, in turn, a potential blueprint for nascent punitive damages classes of the future.
Monday, February 8, 2016
In today's New York Times, Michael Wines & John Schwartz have an article called "Regulatory Gaps Leave Unsafe Lead Levels in Water Nationwide."
What they describe in the article are not only regulatory gaps - that is places such as certain waterways or sources of water that are un- or under- regulated, but also cases where regulations are ignored, poorly followed, etc.
On prawfsblawg, Rick Hills writes about the Flint water crisis in particular and the relationship between litigation and regulation. He correctly observes: "Darnell Earley, the emergency manager appointed by Governor Snyder to run Flint, had a bureaucratic mandate to save money and no electoral incentive to protect non-fiscal goals like voters' health. By switching Flint's water supply from the expensive Detroit water system to the cheaper and more corrosive Flint River, Earley maximized the first goal and ignored the second, with the result that Flint's residents now have elevated lead levels in their blood."
Tuesday, December 22, 2015
In an environmental disaster of tragic proportions, the City of Flint, Michigan has discovered that by switching water sources to save money, it inadvertently corroded the lead pipes of the city's water system, leaching lead into the water supply. The result is a generation of children who have been exposed to lead and likely will suffer permanent effects. The story is reported, among other places, in this story in the Washington Post. Residents filed a class action suit against the State and the City in mid-November - you can find the complaint here. It is interesting in that it alleges constitutional violations - a violation of the right to bodily integrity and deprivation of property under the due process clause of the 14th Amendment.
The Mayor declared a state of emergency this week.
Tuesday, October 14, 2014
The papers in the Deepwater Horizon Settlement cert petition are mostly in. The case is BP Exploration & Production Inc. v. Lake Eugenie Land & Development, Inc. -- you can find the documents on SCOTUSBLOG.
BP's basic argument is that the settlement approved by Judge Barbier in the mass tort class action against it was ultra vires because it contemplated giving money to people who were, according to BP, not injured. The plaintiffs respond that BP is just trying to overturn a settlement it championed through the backdoor now that its unhappy with the deal.
One of the most interesting briefs filed in this dispute is from Kenneth Feinberg, who oversaw both the 9/11 Victims Compensation Fund and the Gulf Coast Claims Facility. The latter was the entity that settled claims arising out of the Deepwater Horizon oil spill immediately after it happened.
Feinberg is a world class mediator and one of the most prominent figures in the mass tort world. The class action settlement that BP is now disputing is the successor to the Gulf Coast Claims Facility, which he headed. What the class action did that the Gulf Coast Claims Facility could not do is give BP global peace. In other words, all civil claims against BP arising out of the oil spill are precluded by that class action settlement.
Feinberg's brief asks the Supreme Court to grant cert. The argument is basically the following: claim facilities like the ones he ran apply a causation requirement that parallels that of the tort system. But, he argues, the settlement agreed to by BP does not include as strong a causation requirement, and this threatens the possibility of future compensation funds to solve mass torts. The brief explains:
..the Fifth Circuit's decisions in this case affecting the causation standard, if permitted to stand, threaten to make these sorely needed alterantives to mass tort litigation unlikely to be replicated. Future funds would either adopt the Fifth Circuit's new standard, thereby threatening to overwhelm the claims process with spurious claims, or continue to require causation, thereby channeling claimants toward litigation where the burden of proof is lower. (Feinberg petition at 6).
This argument seems to me to be just wrong. The settlement imposed a looser causation requirement than tort law requires. But that causation requirement was agreed to in order for claimants collect under the settlement; it is not the causation requirement of the substantive law. In the future, if a defendant perferred to create a settlement fund of the Feinberg-ian variety, they could do so and rest "easy" that the causation requirement of the substantive law remains as it always was. (Whether the requirement of specific causation is the best requirement from a normative point of view in mass tort litigation I leave to another day).
There is no risk that this settlement will affect future litigation because it is a settlement - the defendant participated in crafting and agreed to the causation requirement applied in the claims facility created by the settlement. One might say it is a form of private lawmaking only applicable to these parties. If a future mass tort defendant doesn't like this type of loosened causation requirement, they don't have to agree to it. In fact, they are free to say "we'll litigate every case" as Merck did for five years in the Vioxx mass tort and then in each and every case the standard causation requirement of the tort law in the relevant jurisdiction will apply.
And what of the argument championed by BP that the settlement pays people who were not injured in fact? Welcome to the world of settlements, Dorothy. What happens in a settlement is this: each party has a sense of what the case is "worth" - that is, the likely result at trial. They discount that amount by the risk of loss. Then they substract from that discounted amount their transactions costs (the costs of litigation). If the resulting number is close for both parties, they settle. See Steven Shavell, Foundations of the Economic Analysis of Law, 401-407 (2004). If they settle, they don't litigate. When they don't litigate, there is no trial.
A settlement means that the plaintiff never has to prove causation, or any other element of her cause of action. If the BP settlment violates Article III because plaintiffs didn't prove their legal entitlements, then every settlement violates Article III. The reason is that in no settlement does plaintiff ever prove that they are entitled to compensation because the very purpose of the settlement is to avoid trial. A plaitniff's entitlement at settlement is always uncertain. If settlements in general are constitutional, then so is this one.
A class action settlement is different than an ordinary settlement because it requires judicial approval. But does that judicial approval require that plaintiff establish injury? Here is the requirement for judicial approval of class action settlements: "If the settlement would bind class members," then the court needs to determine at a fairness hearing that the settlement is "fair, reasonable and adequate." Fed. R. Civ. P. 23(e)(2). The reason that a fairness hearing is only required "if the settlement woudl bind class members" is that the purpose of the hearing and approval process is to protect absent class members who are to be bound, but are not before the court to state their objections. This requirement is not meant to protect defendants, who are certainly well able to defend their interests and state their objections before the court.
And what was the benefit to BP? Why would BP enter into such a settlement? They wanted global peace. Only a class action settlement can provide that. They were willing to pay a high price for global peace at the time. Now things are different for BP, time has passed and it is in a better position than it was when it made this agreement, but that doesn't make the agreement unconstitutional or violative of the class action rule.
I hope the Supreme Court does not grant certiorari because the Fifth Circuit correctly rejected these claims. The ideas that underly the BP cert petition don't make sense in a litigation system that permits settlement. And they don't make sense under modern jurisprudential understanding of what a right is. People can sue when they think they have a right that has been violated. If the lawsuit goes to trial, then plaintiff will have to meet their burden of proving that they in fact (1) have a right and (2) it was violated. (Actually, they will likely have to show that they have a colorable case long before then). At the beginning of the litigation these things are uncertain. Uncertainty is the space in which settlements happen.
Wednesday, September 10, 2014
Professor Neal Katyal (Georgetown) and Theodore Olson (Gibson Dunn) take part in a Federalist Society panel on class action reform and the BP Deepwater Horizon case; the panel is moderated by Stuart Taylor (Brookings Institution).
Monday, August 4, 2014
Professor Linda Mullenix has posted a new article titled "Designing Compensatory Funds: In Search of First Principles" on SSRN. It takes on several high-profile compensation funds and may have something of interest to say about how GM is designing its own compensation fund. Here's the abstract:
The World Trade Center Victims’ Compensation Fund of 2001 ushered in a new age of fund approaches to resolving claims for mass disasters in the United States. Since then, numerous funds have been created following several mass events injuring large numbers of claimants. The Gulf Coast Claims Facility, created in the immediate aftermath of the BP Deepwater Horizon oil platform explosion, represented a further expansion of fund design and operation. The funds that have been implemented since 2001, including the World Trade Center Fund, have been the object of both praise as well as criticism. Notably, all these funds have been designed and implemented after the events giving rise to a universe of mass claimants. This article suggests that the policy recommendations for future fund design largely fail to address antecedent threshold questions about the nature of the events giving rise to possible recourse to a fund for compensation of claims. Although such compensation funds have been intended to provide an alternative to the tort compensation system and to operate largely outside the purview of the judicial system, instead most fund designs have relied on tort notions of corrective justice that mimic the tort system. However, many funds have in practice entailed mixed theories of corrective and distributive justice, confusing the purpose, utility, and goals of such funds. This article asks fundamental questions about the goals of such funds and whether and to what extent disaster compensation funds comport with theories of justice. It suggests that certain types of mass disaster events ought not to be resolved through fund auspices at all, while only a limited universe of communitarian harms should give rise to such a response. Finally, a communitarian fund designed ex-ante might more fairly be based on theories of distributive justice based on an egalitarian social welfare norm.
Thursday, April 17, 2014
The Stanford Journal of Complex Litigation is hosting a symposium, "A Complicated Cleanup: The BP Oil Spill Litigation," on Thursday, May 8, 2014 and Friday, May 9, 2014, at Stanford Law School. The keynote address speaker is Kenneth Feinberg, the Gulf Coast Claims Administrator. Other symposium speakers will include Elizabeth Cabraser of Lieff Cabraser, Professor Francis McGovern (Duke), Professor Linda Mullenix (Texas), Professor Maya Stenitz (Iowa), and myself. Panel moderators will include Stanford Law Professors Nora Engstrom, Deborah Hensler, and Janet Alexander.
Sunday, March 23, 2014
I'm serving as Co-Director of Southwestern Law School's 2014 Vancouver Summer Law Program, which is offered in collaboration with the University of British Columbia Faculty of Law and the International Centre for Criminal Law Reform and Criminal Justice Policy. All classes will take place at the University of British Columbia's new Allard Hall, which was completed in 2011 at a cost of $56 million. On-campus housing at St. Andrew's Hall next to the law school may also be arranged through the summer law program. The program will run from May 25 to June 25, 2014. Here is the brochure.
One of the courses offered will be a course on Global Tort Litigation, which I'll be co-teaching with Professor Jasminka Kalajdzic of the University of Windsor. Other courses include comparative criminal procedure, international environmental law, and comparative sexual orientation law; students may elect to take two courses for four units, or three courses for six units.
We welcome applications from students in good standing at an ABA-approved or state-accredited American law school or accredited Canadian law school. Special reduced tuition rates are available for Canadian law students. Come join us in beautiful Vancouver, Canada!
Friday, March 14, 2014
In a decision issued on March 3, the Fifth Circuit held that BP must stick to the settlement it signed on to, even if it doesn't like any longer the broad approach to compensation it once agreed to. As Professor and former Soliciter General Charles Fried said, in sum and substance, a contract is a promise. Here is an excerpt from the Fifth Circuit opinion:
There is nothing fundamentally unreasonable about what BP accepted but now wishes it had not. One event during negotiations in the fall of 2012 suggests reasons for just requiring a certification [instead of proof of causation]. The claims administrator, in working through how the proposed claims processing would apply in specific situations, submitted a hypothetical to BP and others. It posited three accountants being partners in a small firm located in a relevant geographic region. One of the three partners takes medical leave in the period immediately following the disaster, thus reducing profits in that period because that partner is not performing services for the firm. At least some of the firm's loss, then, would have resulted from the absence of the partner during his medical leave. BP responded that such a claim should be paid.
We raise this not for the purpose of analyzing an issue we conclude is not relevant to our decision, namely, whether BP is estopped from its current arguments. Instead, we mention it in order to identify the practical problem mass processing of claims such as these presents, a problem that supports the logic of the terms of the Settlement Agreement. These are business loss claims. Why businesses fail or, why one year is less or more profitable than another, are questions often rigorously analyzed by highly-paid consultants, who may still reach mistaken conclusions. There may be multiple causes for a loss. ... The difficulties of a claimant's providing evidentiary support and the claims administrator's investigating the existence and degree of nexus between the loss and the disaster in the Gulf could be overwhelming. The inherent limitations in mass claims processing may have suggested substituting certification for evidence, just as proof of loss substituted for proof of causation. ...
In re Deepwater Horizon, --- F.3d ----, 2014 WL 841313, *5 (5th Cir. 2014).
Readers may also be interested in a Bloomberg News article by Laura Calkins and Jeff Feeley entitled BP Must Live with $9.2 Billion Oil Spill Deal, Court Says. In other BP news, looks like it can drill in the Gulf of Mexico again, according to the NYTimes.
Tuesday, March 4, 2014
Judge Lewis Kaplan entered judgment today in favor of Chevron in the long-running dispute concerning environmental liability for oil pollution in the Oriente region of Ecuador. The court, after a bench trial, found that plaintiffs' attorney Steven Donziger and his team engaged in fraud and corruption in obtaining a $9.5 billion judgment in Ecuador. Judge Kaplan ruled that the Ecuador judgment is unenforceable in the United States and that Donziger may not benefit from the judgment. Undoubtedly, this dispute isn't over, as Donziger surely will appeal to the Second Circuit. And the outcome cannot have been much of a suprise to the parties, given the clarity of Judge Kaplan's views based on his past rulings in this dispute. But by any measure, today's judgment is a huge moment in the Chevron-Ecuador litigation.
Judge Kaplan's opinion -- all 485 pages and 1842 footnotes of it -- is attached here (Download ChevronSDNYopinion030414). And the judgment, which spells out exactly what the court ordered, is here (Download ChevronSDNYjudgment030414). Judge Kaplan found that Donziger and his team submitted fraudulent evidence, used a partisan as a supposedly impartial expert, and offered to bribe the judge. The opinion does not mince words:
Upon consideration of all of the evidence, including the credibility of the witnesses – though several of the most important declined to testify – the Court finds that Donziger began his involvement in this controversy with a desire to improve conditions in the area in which his Ecuadorian clients live. To be sure, he sought also to do well for himself while doing good for others, but there was nothing wrong with that. In the end, however, he and the Ecuadorian lawyers he led corrupted the Lago Agrio case. They submitted fraudulent evidence. They coerced one judge, first to use a court-appointed, supposedly impartial, “global expert” to make an overall damages assessment and, then, to appoint to that important role a man whom Donziger hand-picked and paid to “totally play ball” with the [Lago Agrio plaintiffs]. They then paid a Colorado consulting firm secretly to write all or most of the global expert’s report, falsely presented the report as the work of the court-appointed and supposedly impartial expert, and told half-truths or worse to U.S. courts in attempts to prevent exposure of that and other wrongdoing. Ultimately, the [Lago Agrio plaintiff] team wrote the Lago Agrio court’s Judgment themselves and promised $500,000 to the Ecuadorian judge to rule in their favor and sign their judgment. If ever there were a case warranting equitable relief with respect to a judgment procured by fraud, this is it.
The ruling does not purport to bar enforcement of the judgment outside the United States. Rather, it bars enforcement of the judgment in any U.S. court, and in Judge Kaplan's words, it "prevent[s] Donziger and the two LAP Representatives ... from profiting in any way from the egregious fraud that occurred here." The plaintiffs have sought to enforce the Ecuadorean judgment in Canada, Brazil, and Argentina; it will be interesting to see what effect the SDNY decision might have on enforcement of the judgment in those countries.
In the SDNY litigation, Chevron asked the court to focus on the conduct of the plaintiffs' lawyers, while Donziger wanted to focus on the company's environmental liability for harm in the Oriente region of Ecuador. Judge Kaplan, in ringing language about the integrity of the judicial process, made it clear where he stands:
The issue here is not what happened in the Orienté more than twenty years ago and who, if anyone, now is responsible for any wrongs then done. It instead is whether a court decision was procured by corrupt means, regardless of whether the cause was just. An innocent defendant is no more entitled to submit false evidence, to coopt and pay off a court-appointed expert, or to coerce or bribe a judge or jury than a guilty one. So even if Donziger and his clients had a just cause – and the Court expresses no opinion on that – they were not entitled to corrupt the process to achieve their goal.
The painful irony of the Chevron-Ecuador litigation is this: The plaintiffs originally brought their claims in the United States -- in the Southern District of New York. They were dismissed on grounds of forum non conveniens. In other words, the U.S. legal system told the plaintiffs that they should litigate this dispute in Ecuador. Which is exactly what they did. And they won big. And today the Southern District of New York has told the plaintiffs that their Ecuador judgment is corrupt and unenforceable. As I have written elsewhere, the forum non conveniens dismissal made sense in this case. And parties must be able to challenge the enforceability of judgments on grounds of fraud and corruption. But if this is how the Chevron-Ecuador litigation ends (which remains to be seen), isn't there something deeply unsatisfying and mind-blowingly inefficient about such an ending to a two-decade litigation over serious environmental claims?
Tuesday, January 14, 2014
The Fifth Circuit issued a decision on January 10th affirming the class action settlement in the In re Deepwater Horizon litigation. You can find the opinion here.
This opinion is the result of objections to the settlement, but BP intervened to argue that there was an Article III standing problem with the way the settlement agreement had been interpreted. That interpretation was very generous to claimants in its interpretation of how they must prove economic loss to collect. The problem BP faces now is that it didn't cap the settlement amount in the agreement (yes, you read that right, and furthermore this was a selling point of the settlement). As a result, BP has a classic "if you build it, they will come" problem and is trying to upend the settlement as a result. At the moment, the Fifth Circuit in a separate opinion by a separate panel has stayed the settlement adminsitration as it considers the interpretation of the agreement. In that separate opinion, the panel (which couln't quite agree) indicated that the agreement interpretation may be too generous and remanded for reconsideration. You can find that opinion here.
In the opinion issued on Friday, this panel indicated the interpretation may be just fine, and sent a strong hint to the District Judge about what he should do.
So here's the question, why did BP agree to these terms? It was an open ended settlement with a broad geographic reach and a flexible standard for compensation - that was clear from the start. I'm sure BP's excellent counsel knew this was a risk. So what happened? Were the economists predictions dead wrong? Is this just a case of buyer's remorse?
The WSJ has some coverage, here.
Tuesday, November 26, 2013
The Wall Street Journal has an article on the ongoing asbestos cleanup by W.R. Grace in Libby, Montana: In Montana Town, a Shut Mine Leaves an Open Wound, by Dionne Searcey. The Journali also has a related slideshow. The cost of the cleanup has so far been approximately $400 million.
Thursday, November 14, 2013
As the trial continues to unfold in New York in Chevron's RICO lawsuit against plaintiffs' lawyer Stephen Donziger -- amid accusations of judicial bribes, ghostwritten opinions, and sex scandals -- it is worth noting what happened in Ecuador this week.
On Tuesday, Ecuador's high court, the National Court of Justice, affirmed the underlying judgment against Chevron but reduced the amount from about $19 billion to $9.5 billion. The court eliminated the portion of damages that had been imposed as punishment for Chevron's failure to apologize. Here are news accounts from the Wall Street Journal and Reuters. Chevron's suit against Donziger contends that he engaged in fraud and other misconduct to obtain the massive judgment in the Lago Agrio environmental litigation.
Tuesday, October 15, 2013
Wednesday, October 2, 2013
The New York Times reports that an appellate panel has remanded the BP settlement appeal for "clarification" of the settlement in response to BP's allegations that the settlement adminstrator was paying claims to non-injured claimants and engaging in other wasteful conduct.
Update: Here's the Fifth Circuit decision in the case.