Tuesday, August 6, 2019
Judge Dan Polster entertained a motion to certify a Rule 23(b)(3) negotiation class today in the federal Opiate MDL. Here are a few of my thoughts after listening in.
1. I find myself reluctantly agreeing with the distributor defendants (who objected based on predominance) on the following point: you can’t look to the fact that this might be fair to satisfy predominance under Amchem. This is Richard Nagareda’s point about bootstrapping. And Sonya Winner, who argued on behalf of objecting defendants, raises fair questions about conflicts of interest and notice (e.g., that it may be misleading as to what counties and cities will receive under the allocation formula).
- Judge Polster’s repeated question of what alternative do we have is not an answer to the Amchem question.
- Whether the kind of proposal that Francis McGovern and Bill Rubenstein put forward in their article would improve Rule 23 as a general matter (or a rules amendment) is a separate question. I have qualms about it being implemented on an ad hoc basis in the context of judicial common law, but this is a question that merits more thought.
2. The interplay between the state attorneys general and their local governments is a critical component to all of this. Would local government settlements count as an offset in state AG suits? For an interesting take on this general issue, see Roderick Hills, Jr.’s 1998 article.
3. Judge Polster said that defendants have a “justifiable insistence” on global peace. Why? Is that a fair assumption? When we think we know something, we stop paying attention to it and stop questioning it. But moving from what “is” to what “ought to be” can be a fruitful inquiry. We need an argument as to why and whether global resolution is the correct starting point and for that we need far more evidence.
4. Prediction: Judge Polster will certify the negotiation class, perhaps after tweaking it to help alleviate some of the state AGs concerns. He was its most ardent advocate.
5. If (or when) Judge Polster certifies a negotiation class, he shouldn’t appoint Chris Seeger as co-lead class counsel. One need only follow what is happening now in the NFL Concussion case or read about the Propulsid deal to understand my fears – See Mass Tort Deals Chapters 2 and 5.
- As an aside, Seeger’s review of my book (which incidentally, I didn’t see until going to pull up a link for this post) is hilarious. But hey, thanks for buying it!
Wednesday, June 12, 2019
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.
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.
Thursday, May 16, 2019
For judges, lawyers, and even academics toiling away in the world of mass torts, getting a handle on the big picture can be tough. I've seen many empirical claims made when it comes to the push for or against creating federal rules specific to mega-MDLs, all of which are mass torts. Yet, most lack real, empirical data.
For the past six years, I've been collecting data on all of the products-liability proceedings that were pending on the MDL docket as of May 2013. (Yes, yes, I live a thrilling life.) Like a hoarder, I've squirreled away data on Lone Pine orders, Daubert motions, class-certification motions, plaintiff fact sheets, summary judgment motions, census orders, class action settlements, private aggregate settlements, and on and on and on. Those data-collection efforts have culminated in a book that is out today, Mass Tort Deals. There is ton of information in the book's appendix on all of the information I just mentioned. Here's a way to Download Index to Data.
One thing I noticed along the way was that neither Pacer nor Bloomberg Law allow you to search inside the text of MDL dockets, which can be long and unwieldy in and of themselves, as many of you know. So, with the help of the wonderful UGA Law School IT department, I've created a free website that allows you to search the text of the thousands of MDL documents that I've been stockpiling for the past six years. It includes all of the documents that I relied on for the book and I will continue to update it periodically.
As for the book, Mass Tort Deals marshals this wide array of empirical data to suggest that the systematic lack of checks and balances in our courts may benefit everyone but the plaintiffs. Multidistrict proceedings, which place a single judge in charge of similar lawsuits filed across the country, consume a substantial portion of the federal courts’ civil caseload. As the figure below shows, many MDLs are product liability proceedings (for an interactive version, click here):
And if you consider not just the number of proceedings, but the number of actions pending in those proceedings, products-liability suits dominate (for an interactive version, click here):
Of course, most of these product-liability proceedings are not run-of-the-mill disputes. Litigation over products like pelvic and hernia mesh, opioids, Johnson & Johnson’s baby powder, Roundup, and hip implants are headline-grabbing media magnets.
Federal judges certify a small handful of these proceedings (principally those without personal injuries) as class actions, which affords them judicial safeguards. But as tort reform has made its way into civil procedure, it has effectively clamped down on class actions. As you can see from the graphic below, most product-liability proceedings within my dataset ended in private, aggregate settlement (click here for an interactive version):
As readers of my work know, I've voiced some concerns with adequate representation and repeat players in MDLs. Judges and academics have long raised questions about arms-length bargaining and adequate representation in the class-action context, even though Rule 23 builds in some safeguards. In class actions, for example, judges have the authority to appoint class counsel; consider whether counsel adequately represents class members; ensure that any class settlement is fair, reasonable, and adequate; and award class counsel’s attorney’s fee.
Given my qualms about what lawyers are doing (Chapter 2 and 3) and what judges are doing (Chapter 4), should we implement rules for MDL proceedings? Not necessarily. Our system needs a makeover, yes. But Chapter 6 uses basic economic and social principles as the bedrock of reform.
I suggest ways in which we can build opportunities for dissent and competition into the fabric of multidistrict proceedings and incentivize lawyers to use them.
But doing so relies on judges. Educating judges and encouraging them to select leaders via a competitive process, tie leaders’ fees to the benefits they confer on plaintiffs, open the courthouse doors to hear about those benefits (or not) directly from the plaintiffs, and remand those litigants who don’t want to settle can allow the vibrant rivalries within the plaintiffs’ bar to see to it that dissent and competition flourish.
As attorneys object and compete, they are likely to divulge new information, thereby equipping judges with pieces of the puzzle that they currently lack. In short, Chapter 6 explains how arming judges with procedures that better align plaintiffs’ attorneys’ self-interest with their clients’ best interest equips courts to hold parties accountable even without legislation or rulemaking.
From diagnosis to reforms, my goal in Mass Tort Deals isn’t to eliminate these lawsuits; it’s to save them.
May 16, 2019 in Informal Aggregation, Lawyers, Mass Disasters, Mass Tort Scholarship, Medical Devices - Misc., Pharmaceuticals - Misc., Procedure, Products Liability, Regulation, Settlement, Trial, Vehicles, Vioxx | Permalink | Comments (0)
Sunday, March 17, 2019
Article in Bloomberg -- Surge in Biometric Privacy Suits Causes Firms to Boost Specialty.
Tuesday, December 4, 2018
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 firstname.lastname@example.org rather than my University of Georgia email.
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
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).
Saturday, July 29, 2017
Sunday, July 23, 2017
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.
Saturday, July 15, 2017
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).
Friday, June 2, 2017
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.
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
Tuesday, April 4, 2017
With everything else that's dominated the news, it's easy to place the "Fairness in Class Action Litigation Act" on the back burner. But to forget that it's still an active bill (having now passed the House and pending before the Senate) would be a mistake.
Professor Myriam Gilles (Cardozo) and I recently published an op-ed with Bloomberg Law, which appeared in yesterday's Product Safety & Liability Reporter and will be in next week's Class Action Litigation Report titled Congress's Judicial Mistrust. You can read it here: Download Bloomberg Law - Congress's Judicial Mistrust.
We explained our legal positions more fully in our respective letters to the House Judiciary's subcommittee. Download Burch Final Comments on Fairness in Class Action Litigation Act, Download Gilles Letter to James Park on HR 985.
Friday, March 3, 2017
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.
Saturday, February 25, 2017
With House Bill 985 (the "Fairness" in Class Action Litigation Act of 2017), the controversy over current class action practice has escalated. I've been an outspoken critic of the cozy relationships that plaintiffs' lawyers and defense lawyers have developed not only in class actions, but in multidistrict litigation, too. Yet, as I (along with a number of other academics) have discussed, HR 985 doesn't fix what's ailing the system. Instead, it seeks to eliminate most class actions, tramples bipartisan consensus in the appellate courts and federal rules committee, and ineptly tells judges how to do their jobs.
This past January, I attended a conference at Tel Aviv University called Fifty Years of Class Actions--A Global Perspective. As part of that conference, I wrote a paper titled Publicly Funded Objectors, which calls for data collection and suggests that if the U.S. is truly serious about fixing what ails class actions, then it needs to publicly fund those who police them best--nonprofit organizations. I posted the paper on SSRN today.
Now that we have 50 years of class action practice under our belt, we know that practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem—information barriers confront judges, objectors, and even reformers.
Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. They step in as the adversarial process breaks down in an attempt to resurrect the information-generating function that culture creates. And, as the proposed changes to Rule 23’s handling of objectors reflect, turmoil exists over how to encourage noble objectors that benefit class members while staving off those that namely seek rents from class counsel.
Our class-action scheme is not the only one that relies on private actors to perform public functions: citizens privately fund political campaigns, and private lobbyists provide research and information to lawmakers about public bills and policies. Across disciplines, the best responses to those challenges have often been to level up, not down. As such, this Essay proposes a leveling up approach to address judges’ information deficit such that they can better perform their monitoring role. By relying on public funds to subsidize data collection efforts and nonprofit objectors’ information-gathering function, we can disrupt private class counsel’s disproportionate influence.
Put simply, we keep the baby and just throw out the bathwater.
Tuesday, February 21, 2017
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
Tuesday, August 16, 2016
As our readers surely know, despite its bulky name, multidistrict litigation (“MDL”) is in the news constantly: litigation over Volkswagen's defeat device, GM’s ignition defect, Toyota’s sudden acceleration, asbestos, and medical drugs and devices (pelvic mesh, Yasmin/Yaz, NuvaRing, Vioxx) are just a few of the higher profile MDLs.
MDL now comprises over 36% of the entire federal civil caseload (that number leaps to 45.6% if you exclude social security and prisoner cases), yet courts and Congress have made it more difficult for these cases to proceed as certified class actions. This litigation doesn’t go away without class certification as many tort reformers believe, it simply persists with far less judicial oversight.
Few rules and little appellate oversight on the one hand, plus multi-million dollar “common-benefit fees” for the lead lawyers who shepherd these cases toward settlement on the other may tempt a cadre of repeat attorneys to fill in the gaps in ways that further their own self interest. (Because there are so many cases involved, judges appoint "lead lawyers" to litigate and negotiate on behalf of the entire group of plaintiffs; if their individual attorney isn’t a lead lawyer, then that attorney has little say in how the litigation is conducted.)
To shed light on some of these issues, my co-author, Margaret Williams, and I have posted a revised version of our paper, Repeat Players in Multidistrict Litigation: The Social Network (forthcoming, Cornell Law Review) on SSRN.
We collected data on who the lead attorneys are (plaintiff and defense side) in all product-liability and sales practice cases that were pending on the MDL docket as of May 2013 (those cases covered a 22-year span), built an adjacency matrix, and employed a two-mode (actors and events) projection of a bipartite network (also known as an affiliation network) to graph the ties between lawyers judicially appointed to leadership positions (the actors) in multidistrict proceedings (the events). (For the non-statistically inclined, this social network analysis is somewhat akin to the kind that Facebook has popularized.)
The point was to reveal what the naked eye cannot see: how those attorneys and MDLs connect to one another. (Detailed, searchable PDFs of the social network with the players and litigations are available here). We also collected data on the publicly available nonclass settlements that repeat players brokered, reviewed news and media accounts of those litigations, and analyzed the common-benefit fees awarded to the lead plaintiffs' lawyers.
Here’s a summary of our key findings:
- Repeat players are prevalent on both the plaintiff and the defense side.
- No matter what measure of centrality we used, a key group of 5 attorneys maintained their elite position within the network.These 5 attorneys may act as gatekeepers or toll takers, for example. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way.
- By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome.
- Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the plaintiffs’ expense.
A highly concentrated plaintiff and defense bar is nothing new, nor is the disquiet about where that concentration may lead. As scholars have long recognized, repeat play tends to regress our adversarial system from its confrontational roots toward a state of cooperation.
In the criminal context, prosecutors and public defenders routinely work together through plea bargaining, leading them toward mutual accommodation; incumbents form a primary community of interest, whereas clients present secondary challenges and contingencies. As such, adversary features are often overshadowed by regulars’ quid pro quo needs. As Professor Jerome Skolnick has explained, those working group relationships become a social control problem only once they reach a “tipping point where cooperation may shade off into collusion, thereby subverting the ethical basis of the system.” (Social Control in the Adversary System, 11 J. Conflict Resol. 52, 53 (1969)).
As I’ve argued in a separate article, Monopolies in Multidistrict Litigation, we've reached that tipping point in MDL, and these circumstances warrant regulation. Even though MDL judges are the ones who entrench and enable repeat players, they also are integral to the solution.
By tinkering with lead-lawyer selection and compensation methods and instilling automatic remands to a plaintiff’s original court after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. Put simply, the antidote is to reinvigorate competition among plaintiffs’ attorneys and I’ve set forth several specific proposals for doing so in Part III of Monopolies in Multidistrict Litigation.
For interested judges, that article's appendix also contains a Pocket Guide for Leadership Appointment and Compensation, a Sample Leadership Application form, and sample orders for suggesting remand and replacing leaders who ignore adequate representation concerns.
August 16, 2016 in Aggregate Litigation Procedures, Current Affairs, Ethics, Lawyers, Mass Tort Scholarship, Pharmaceuticals - Misc., Prempro, Procedure, Products Liability, Settlement, Vioxx | Permalink | Comments (0)
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.
Thursday, June 16, 2016
On Bloomberg BNA Perry Cooper has an important article on MDL leadership fights entitled "MDLs Led By the Usual Suspects, and Not Everyone is Happy."
Our own Prof. Burch's work is featured. Cooper writes "Burch, a professor at the University of Georgia Law School in Athens, Ga., who specializes in complex litigation, said she's troubled by the number of “repeat players” she sees among attorneys that represent both plaintiffs and defendants in MDLs."
Elizabeth Cabraser, a frequent leader in MDLs, explains: "The problem for getting new players into the leadership is that there are economic barriers to entry,” she said. “To be part of the leadership you have to write a check. You have to put up the money and spend the time.” Cabraser also links the developments in MDLs to changes in the legal culture. As Cooper quotes her: “We all became plaintiffs’ attorneys because we didn't want to work for big firms—we wanted to do our own thing,” she said. “But in an MDL everything is by committee.”
The article also has some good tidbits on Bellwether trials. One plaintiffs lawyer explains: "Large verdicts in bellwether trials can be great from a plaintiff's perspective, Berezofsky said, but they can give clients an expectation that the resolution of their case will be in keeping with the verdict." This lawyer says that for claimants in the middle of the bell curve, an MDL saves money and time, but not for claimants who have more severe injuries because "global settlements generally don't take into account their individual, specialized injuries."
You can find the paper detailing Burch's findings, Monopolies in MDL Litigation, on SSRN.
Thursday, April 28, 2016
In my first post on Monopolies in Multidistrict Litigation, I noted that lead lawyers and defendants seem to benefit in tandem from the settlements they negotiate. This second post, Part II, explains how repeat players on both plaintiff and defense sides have perfected a fundamental shift in settlement design.
As I elaborate on pages 19-21, the demise of the mass tort class action makes it more difficult for defendants to achieve holistic closure, for MDL settlements technically bind only those litigants before the court. But defendants have been able to regain a greater degree of finality through a foundational shift in settlement construction: unlike traditional settlements between plaintiffs and defendants, all twelve deals in the dataset were agreements between lead lawyers and defendants.
As such, these deals position lead plaintiffs’ lawyers as settlement gatekeepers, for defendants will not make better offers to others without the threat of trial; doing so would work against their closure goal. These new deals then serve as a mandatory gateway for anyone wanting to settle, and typically require non-lead attorneys to become signatories alongside their clients. Accordingly, all master settlement agreements in the dataset aimed some provisions at plaintiffs’ attorneys and some at their clients. As a later post will explore, it's the provisions targeting plaintiffs' attorneys that raise the most ethical problems.
Making deals with plaintiffs’ attorneys masterfully furthers defendants’ end game in two ways.
First, the agreements impose uniform endorsement requirements on participating attorneys to discourage them from “cherry picking,” a practice in which lawyers settle most cases, but continue litigating those with the strongest claims or most sympathetic facts. By requiring a high percentage of plaintiffs to accept the settlement offer for it to take effect and insisting that individual attorneys recommend that all their clients settle (including clients who had not yet sued or who were pursuing relief elsewhere), defense attorneys essentially conditioned plaintiffs’ attorneys fees on achieving their closure aims.
A plaintiff’s attorney is either “all in” and would collect significant contingent fees from all her settling clients, or “all out” and would have to spend significant resources litigating individual cases. As such, recommendation provisions alter the typical contingent fee model where an attorney’s recovery increases alongside her clients’ recovery and instead ties plaintiffs’ attorneys’ financial self-interest to each other and to the entire claimant base.
This shift also allows defendants to reach some plaintiffs who are outside of the federal court’s jurisdiction, and others who haven’t yet filed suit (through case census provisions - see pp. 27-29). It thereby recaptures some of the finality that class actions once offered through binding absent class members.
Second, when combined with the defendant's ability to walkaway from the deal if too few claimants consent to settle, provisions aimed at plaintiffs' attorneys (attorney-recommendation provisions, attorney' withdrawal provisions - see pp. 19-26) collectively reduce the demand for legal representation. The settlement effectively becomes the only “game” in town.
Like oligopolists, leaders are able to thwart competition and reduce demand by using attorney withdrawal and recommendation provisions to restrict the legal services market (at least for those with similar allegations against the same defendant). When defendants threaten to abandon the deal if too few plaintiffs participate, and participating attorneys must recommend the deal to all of their clients and withdraw from representing those who refuse, leaders can regulate the legal service being offered and control a sufficiently large share of that market
In this sense, master settlements can recreate bottleneck problems where dominant firms raise competitors’ costs by obtaining exclusionary rights; once defendants negotiate master settlements with plaintiffs’ leadership, that agreement typically becomes the only settlement option.
Why should we be concerned? Apart from inherent economic concerns that arise under these conditions, the next post will explore why provisions targeting attorneys are ethically troubling.
Thursday, April 21, 2016
I've spent the better part of the past year and a half analyzing the publicly available nonclass aggregate settlements that have taken place in multidistrict litigation alongside leadership appointments, common-benefit fees, and, where available, recovery to the plaintiffs. This has given me an in-depth look at what's happening (or has happened) in Propulsid, Vioxx, Yasmin/Yaz, DePuy ASR Hip Implant, Fosamax (2243), American Medical Systems pelvic mesh litigation, Biomet, NuvaRing, and Actos. I've also analyzed fee practices in Baycol, Ortho Evra, Avandia, Mentor Corp. ObTape, Prempro, Chantix, Pradaxa, and Ethicon Pelvic Repair.
This endeavor has been deeply unsettling for a variety of ethical, doctrinal, and systemic reasons. Professors Erichson and Zipursky's prior work on Vioxx opened our eyes to troubling provisions in that deal, but I had no idea how widespread the problems were or how they had evolved over time from deal to deal until now.
Propulsid appears to be the primogenitor, for all subsequent deals in the data replicated some aspect of its closure provisions. But Propulsid is extraordinarily troubling: 6,012 plaintiffs abandoned their right to sue in court in favor of settling. Only 37 of them (0.6 percent) recovered any settlement money through the physician-controlled claims review process, receiving little more than $6.5 million in total. Lead lawyers, on the other hand, received over $27 million in common-benefit fees through a deal they negotiated directly with the defendant (and had the court approve). Sadly, that's just the tip of the iceberg.
I posted the fruits of my labor on SSRN today in a piece titled, Monopolies in Multidistrict Litigation. It's a 70+ page tomb, so I'll be covering specific aspects of it over the next few weeks in a series of blog posts. It's not only an indictment of current practices and procedures, but it offers myriad ways for judges to improve MDL practice. It even comes complete with handy pocket guides for judges, leadership application forms, and leadership applicant scoring sheets in the appendix.
For those of you who love data, there are several tables that may be of interest: Table 1: Provisions Benefitting Defendants Occurring within the Analyzed Settlements on p. 20; Table 2: Common-Benefit Fee Practices on p. 33; and Table 3: Common-Benefit Awards and Nonclass Claimant Recovery within the Data on p. 48.
Today's post simply introduces the paper, so here is the summary:
When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again. When asked, repeat players chalk it up to their experience and skill—no one can manage and negotiate as well as they can. Off the record, however, any plaintiff’s lawyer who’s been involved in multidistrict litigation will explain repeat players’ dominance with stories of backroom deals, infighting, and payoffs. Yet, when judges focus on cooperation and consensus in selecting leaders and then defer to those leaders in awarding common-benefit fees, they dampen open rivalry and enable repeat actors to mete out social and financial sanctions on challengers.
Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at consumers’ (or here, clients’) expense. Apprehensiveness should increase when defense lawyers are repeat players too, as they are in multidistrict litigation. And anxiety should peak when the circumstances exhibit these anti-competitive characteristics, but lack regulation as they do here. Without the safeguards built into class certification, judicial monitoring and appellate checks disappear. What remains is a system that permits lead lawyers to act, at times, like a cartel.
Basic economic principles demonstrate that noncompetitive markets can result in higher prices and lower outputs, and agency costs chronicle ways in which unmonitored agents’ self-interest can lead them astray. By analyzing the nonclass deals that repeat players design, this Article introduces new empirical evidence that multidistrict litigation is not immune to market or agency principles. It demonstrates that repeat players on both sides continually achieve their goals in tandem—defendants end massive suits and lead plaintiffs’ lawyers increase their common-benefit fees. But this exchange may result in lower payouts to plaintiffs, stricter evidentiary burdens in claims processing, or higher plaintiff-participation requirements in master settlements.
These circumstances warrant regulation, for both multidistrict litigation and class actions are critical to redressing corporate wrongdoing. Even though judges entrench and enable repeat players, they are integral to the solution. By tinkering with selection and compensation methods and instilling automatic remands after leaders negotiate master settlements, judges can capitalize on competitive forces already in play. By tapping into the vibrant rivalries within the plaintiffs’ bar, judges can use dynamic market solutions to remap the existing regulatory landscape by invigorating competition and playing to attorneys’ strengths.
As always, your comments are welcome (the draft is still just that, a draft) - please email any comments or corrections to me eburch at uga.edu. More soon...
Saturday, April 9, 2016
Professor Briana Rosenbaum (Tennessee Law) has posted to SSRN the abstract for her article, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016). Here's the abstract:
The class action device has been under attack for decades. Recent Supreme Court cases have further enervated class actions, and the current Congress is considering both class action and tort reform. Recently, defendants in aggregate litigation have employed an additional tactic by filing civil RICO cases against plaintiffs’ counsel alleging they fraudulently concealed a few baseless lawsuits among larger sets of claims. The predicate acts in those RICO cases consist solely of litigation activities: the filing of complaints in mass actions and related litigation documents. Members of the defense bar have made no secret of the fact that these RICO cases are part of a larger strategy to prevent plaintiffs’ attorneys from bringing large-scale class actions and other aggregate litigation. Despite the rich literature on class actions, this recent aggressive use of RICO by the defense bar and corporate interest groups to punish plaintiffs’ attorneys for the alleged fraudulent filing of aggregate litigation has gone relatively unexplored.
This Article pulls together several previously unassociated areas of law-including RICO, Rule 11, class actions, SLAPP motions, and asbestos litigation-to develop a model of the RICO trend. It then argues that holding plaintiffs’ attorneys liable under civil RICO solely for litigation activities is illegal, results in the lamentable federalization of state common law, and leads to improper forum shopping. The RICO trend also avoids legitimate state protections for litigation activity and is a thinly-veiled attempt by the defense bar to further weaken class actions by targeting the plaintiffs’ attorneys themselves. Just as critically, this use of RICO punishes the aggregate litigation device itself, rather than the underlying fraudulent conduct; as a remedy for frivolous aggregate litigation conduct, it is both over- and under-inclusive. This Article concludes by proposing several alternatives, including effectively barring any civil RICO action targeting attorneys’ pure litigation activities without systemic wrongdoing.