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)
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, 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).
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.
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, 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.
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.
Thursday, April 25, 2013
Over at the Conglomerate Blog, Christine Hurt has a great post on the One Fund Boston and individual victim fundraising. Her blog post is entitled One Fund Boston, Torts and Social Capital.
Sunday, October 14, 2012
Two years ago, I blogged about the need for greater scholarly attention to mass tort crisis management. Since then, crisis-management practice groups at law firms have continued to burgeon. Here's a sampling of crisis-management groups at large law firms: Baker Hostetler, Bingham, Cooley, Covington & Burling, Freshfields, Gibson Dunn, McCarter & English, McDermott Will & Emery, Patton Boggs, Pillsbury Winthrop, Skadden, and Steptoe & Johnson.
For media coverage of recent growth in crisis-management groups, see the following:
(1) Ashby Jones, On Covington and the 'Crisis Management' Boomlet, Wall Street Journal Law Blog (Jan. 6, 2011, 1:37 p.m.);
(2) Leigh Kamping-Carder, Savvy Firms Seek Business Through Crisis Management, Law360 (Feb. 19, 2010, 7:12 p.m.) (online registration required for article); and
(3) David Lat, A Look at Orrick's Crisis Management Practice, Above the Law (Oct. 8, 2009, 11:06 a.m.).
While business schools have offered courses on crisis management and leadership, public-policy schools have offered courses on governmental crisis management, and communications schools have offered courses on crisis communications, law schools appear not to have provided curricular attention to legal crisis management. (The University of Texas School of Law has a course on crisis management, but it appears to track public-policy courses focusing on the government's role in a crisis.) What might a law-school course on legal crisis management look like, focusing on the role of lawyers in preventing, managing, and resolving crises? Here's a draft description I put together for such a course that I've been considering more fully developing:
Legal Crisis Management and the Media
BGSAlthough crisis management has long been an important skill for lawyers, formal crisis management practices today proliferate among global law firms seeking to aid clients facing complex crises that span various countries, practice areas, and advocacy settings such as judicial, legislative, regulatory, or media inquiries. This course will examine and integrate insights on legal crisis management from multiple disciplines, including not only law, but also management, leadership, communications, and public relations. Within law, the course will draw upon ethics, counseling, negotiation, and alternative dispute resolution, and address lawyers' and clients' interaction with the media during a crisis, including global perspectives on the legal limits of media coverage. In addition to developing conceptual approaches, the course will discuss case studies of legal crisis management implicating the law, culture, and media of multiple countries and areas, and consider lawyers' actual and potential contributions to successful resolution of the crises.
Friday, October 12, 2012
Two Wall Street Journal articles in recent days have tracked recent settlements talks between BP and the federal government regarding civil and criminal liability in connection with the Deepwater Horizon oil spill in the Gulf. On Wednesday, the Journal reported, BP Close to Spill Settlement: Multibillion-Dollar Deal With U.S. Would Combine Civil, Criminal Liabilities. But on Thursday, the Journal noted in Slick Complicates BP Liability Talks that a new thin oil slick determined to be related to the prior Deepwater Horizon spill has appeared.
Monday, July 9, 2012
NPR has an extended interview with famed claims administrator Ken Feinberg about his new book, Who Gets What: Fair Compensation After Tragedy and Financial Upheaval.
July 9, 2012 in 9/11, Aggregate Litigation Procedures, Current Affairs, Informal Aggregation, Lawyers, Mass Disasters, Mass Tort Scholarship, Products Liability, Settlement | Permalink | Comments (0) | TrackBack (0)
Saturday, March 3, 2012
John Schwartz at the New York Times reports that the litigation surrounding the BP Deepwater Horizon Oil Spill has settled for all of the litigants except the federal government. The Judge overseeing the litigation issued the order late Friday night and will review the settlement.
Here's the report from Bloomberg as well.
According to these reports, either the settlement will be paid by the $20 billion fund BP created to compensate victims or the fund will close and be replaced by a court overseen claims facility. In any event, the amount of the settlement is $7.8 billion that from these reports is not in addition to the $20 billion already set aside.
More to come. ADL
Tuesday, February 28, 2012
You don't need the Mass Tort Litigation Blog to tell you that the imminent BP trial has been stayed pending settlement talks. In the meantime, here are some thoughts from the ever relevant George Conk. Special shout out for his poetic references: Diving Into the Wreck: BP and Kenneth Feinberg's Gulf.
I was just at a wonderful conference at the Charleston School of Law on Mass Torts and the Federal Courts where Feinberg spoke. One of the key questions at the conference is the extent to which claims facilities (BP, 9/11, etc.) are unique and unlikely to be repeated or the wave of the future. The interesting thing about BP is that it shows the interaction between claims facilities and litigation - its not one or the other. Speakers mentioned how companies trying to get ahead of a litigation may well look to the BP model. Others questioned whether BP was really special because the company was prepared to admit liability (although not gross negligence).
I was especially interested by the remarks of Sheila Birnbaum, currently running the 9/11 Fund for first responders and who mediated settlements for the 94 families who chose not to participate in the 9/11 Victim Compensation Fund. Even the families who wanted a public trial to find out what happened ultimately settled because of the uncertainty of trial. This raises important questions about the purpose of litigation for individuals: is it ultimately to get compensation? How important is it to get to the "truth"? How important is vindication? Punishment? When people settle (or waive their right to litigate prior to filing suit), what kind of consent do we want and does money ultimately satisfy? Lynn Baker, who was at the conference, referred me to the following article that addresses some of these questions: Gillian Hadfield, Framing the Choice Between Cash and the Courthouse: Experiences with the 9/11 Victims Compensation Fund. This continues to be relevant, especially if Funds become a model rather than a one-off.
Monday, January 30, 2012
No Formaldehyde Liability for US for FEMA Trailers After Hurricanes Katrina and Rita, Fifth Circuit Holds
The decision in In re FEMA Trailer Formaldehyde Products Liability Litigation, Nos. 10-30921, 10-30945 (5th Cir. Jan. 23, 2012), turns on liablity for the government "to the same extent" as private individuals, under the Federal Torts Claims Act, and the protection afforded private individuals giving voluntary disaster assistance under Good Samaritan statutes in Alabama and Mississippi.
Saturday, January 21, 2012
CNN reports that Chevron has appealed the $8.6 billion environmental judgment to Ecuador's National Court. The case has been closely watched not only for its high dollar amounts, but for the questions raised by Chevron about the integrity of Ecuador's courts. Questions of foreign-court bias may be more frequent as mass tort litigation increasingly becomes global tort litigation, and disputes against large, deep-pocketed corporations are brought by foreign claimants in foreign courts.