Sunday, August 8, 2021

Law & Contemporary Problems Issue In Memoriam: Professor Francis McGovern

The journal, Law & Contemporary Problems, has published an an issue In Memoriam: Francis McGovern, entitled, "Innovations in Complex Litigation and Settlement."  Published authors include the following: Lynn Baker (Texas Law); David Bernick (Kirkland & Ellis); Stephen Burbank (Penn Law); Elizabeth Cabraser (Lieff Cabraser); Sean Farhang (Berkeley Law); Brian Fitzpatrick (Vanderbilt Law); Gary Friedman; Myriam Gilles (Cardozo Law); Deborah Hensler (Stanford Law); Samuel Issacharoff (NYU Law); Robert Klonoff (Lewis & Clark Law); David Levi (Duke Law); Richard Marcus (UC Hastings Law); Troy McKenzie (NYU Law); Senior Judge Dan Polster (N.D. Ohio); D. Theodore Rave (Texas Law); Judith Resnick (Yale Law); Christopher Seeger (Seeger Weiss); Charles Silver (Texas Law); and former Judge Vaughn Walker (N.D. Cal.).  Professor McGovern is also credited as co-author for an article for which he had the original idea and was very involved in assembling the central argument.  

August 8, 2021 in Aggregate Litigation Procedures, Mass Tort Scholarship | Permalink | Comments (0)

Wednesday, June 2, 2021

The Failed Roundup Gambit

*First published as Multidistrict Litigation and Bayer's Roundup Gambit in Westlaw Today/Reuters Legal

Bayer and the plaintiffs’ lawyers suing it over its popular weed killer, Roundup, are playing a high-stakes, billion-dollar chess match. Like most corporate defendants in Bayer’s position, it wants lawsuits to end.

But finality eludes Bayer for two reasons.

First, non-Hodgkin’s lymphoma, the disease several juries linked to Roundup’s active ingredient glyphosate, doesn’t develop overnight. It takes a while, often 10-15 years after exposure. Yanking Roundup off the market today would still leave Bayer with at least another decade of litigation.

Second, Roundup makes Bayer lots of money. Sticking a warning label on it would hurt the company’s bottom line. Why would consumers risk cancer to kill dandelions?  

Enter Bayer’s elaborate gambit.

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Step one: preemption.

Bayer accurately predicted that the Ninth Circuit (despite a relatively conservative panel) would reject its argument that the Federal Insecticide, Fungicide, and Rodenticide Act, fondly known as FIFRA, preempts claims that it failed to warn weed exterminators about the risks of non-Hodgkin lymphoma. In May, the majority in Hardeman v. Bayer ruled that Mr. Hardeman’s failure-to-warn claim was “equivalent to” and “fully consistent with” FIFRA and thus not preempted under the Supreme Court’s 2005 precedent, Bates v. Dow Agrosciences LLC.

While it awaited the Hardeman decision, Bayer worked to manufacture a circuit split elsewhere that might tempt the Supreme Court to weigh in and reconsider Bates. For that, it tapped Dr. John Carson, a Georgia plaintiff who alleged a type of cancer that science has not linked to Roundup, malignant fibrous histiocytoma. Siding with Bayer, the Southern District of Georgia dismissed Dr. Carson’s failure-to-warn claim because FIFRA preempted it. Bayer won.

But that short-term win undermined its overarching goal. So, Bayer sacrificed by entering into a settlement of sorts with Dr. Carson: for $100,000, he would appeal the dismissal and the preemption ruling. Winning on preemption before the Eleventh Circuit would increase the likelihood of Supreme Court review, at least by a little, despite Bayer’s sly pay-to-appeal scheme.

The possibility of a circuit split and complete preemption serves another purpose, too. It acts like a sword of Damocles endangering plaintiffs who haven’t yet settled, haven’t yet sued, or haven’t yet developed non-Hodgkin lymphoma despite using Roundup. Plaintiffs won all three jury trials to date, notwithstanding a bifurcated trial structure that tends to favor defendants. Compared with the mature asbestos cases that led to the derailed Amchem settlement, the Roundup suits are barely entering grade school. But plaintiffs’ fortunes can turn.

Step two: certify a futures class.

Pressing the slimmest of advantages (after all, the Supreme Court grants certiorari in only around 3.4% of civil cases per year), Bayer teamed up with the same amenable plaintiffs’ counsel whose attempt at certifying a futures class last summer ended in a swirl of controversy and a withdrawn motion. Presenting a second, then a third futures class proposal, they purport to shelter three groups of class members from preemption’s peril: (1) people diagnosed with non-Hodgkin lymphoma after Roundup exposure that haven’t hired lawyers yet; (2) people who have used Roundup but haven’t yet developed non-Hodgkin lymphoma, and (3) all of their spouses, parents, and dependent children—collectively, the “derivative claimants.”

But the preemption refuge and the benefits last a mere four years. And they come at a steep price. In exchange for notice, medical help, and some streamlined compensation, class members must give up punitive damages and medical monitoring claims, as well as bind themselves (with little wiggle room) to a seven-member science panel’s verdict about whether glyphosate can cause non-Hodgkin lymphoma.

After the four-year détente lifts, few plaintiff’s lawyers would litigate Roundup claims in the face of such weighty impediments.

For the gambit to work, the judge must certify the class. But Judge Vince Chhabria is no pawn and he declined to do so. His brief six-page opinion followed a day-long hearing transparently livestreamed in Brady-bunch boxes for a clamoring public to see.

In both the hearing and the opinion, Judge Chhabria challenged the settlement’s upside: Four years of medical monitoring for a disease with a 10-15 year latency period is “far less meaningful than the attorneys suggest.” Those with later diagnoses “will not be able to request compensation from the fund,” he wrote.

As Judge Chhabria pointed out, problems with the proposed futures class abound, including, most centrally, the constitutionality and utility of notice and the hamstrung tort claims. For plaintiffs, the downsides require “major sacrifices,” he explained.

First, on notice, what value does the settlement add that a well-incentivized plaintiffs’ bar lacks? The proposal allocates up to $55 million for settlement administration and notice costs for five months. Yet, over two years ago, the Wall Street Journal reported that plaintiffs’ lawyers spent an estimated $77.8 million to advertise Roundup lawsuits for eight months.

Setting aside the constitutional impossibilities of notifying future spouses and unborn children, what people need is meaningful information at a meaningful time. Noise fills the world. Our bandwidth is limited.

A Roundup user without cancer is far more likely to mindlessly scroll through whatever notices pop up than to engage and investigate. Someone newly diagnosed with non-Hodgkin lymphoma, however, is hungrily Googling for information and answers.

Second, consider what plaintiffs bestow upon Bayer by giving up punitive damages—absolution. But the alleged bad behavior continues. Imagine fining attempted murderers and freeing them to continue their spree. Roundup still lines store shelves and if it does what plaintiffs contend, it will endanger public health for decades to come.

Third, class members must litigate under the umbrella of the science-panel’s findings. “But the reason Bayer wants a science panel so badly is that the company has lost the ‘battle of the experts’ in three trials,” wrote Judge Chhabria.

It is possible that the parties will attempt yet another class settlement geared toward only those Roundup users who have non-Hodgkin lymphoma but no lawyer. Still, what is the upside to the court? Frame it in terms of class superiority: Is certifying a class better than the other ways courts can fairly and efficiently resolve plaintiffs’ claims? Judge Chhabria already faces a scrum of centralized lawsuits. And certifying a class will not end disputes.

Despite a settlement class in the NFL Concussion cases, litigation continually bubbles up, most recently in terms of Black players alleging class settlements show bias. Despite a settlement class in BP’s Deepwater Horizon Oil Spill, over 6,300 clean-up workers have continued to sue over latent injuries like blood-related cancers from chemical dispersants through the settlement’s back-end litigation option. Despite a settlement class in Diet Drugs, 50,000 would-be class members opted out, claims overwhelmed the class, and litigation before the same judge continues today—21 years later.

There is no neat end game in sight for Bayer or the courts, even as it debuts its five-point plan to reassure stockholders. Remanding cases once common discovery ends and taking up the old saw of trial may sound antiquated in the face of futuristic procedures that promise the next best thing. Yet, it has worked for centuries. Perhaps it’s just that the weeds always seem greener on the other side.

June 2, 2021 in Mass Tort Scholarship, Preemption | Permalink | Comments (0)

Tuesday, October 13, 2020

MDLs & Class Actions: A Discussion with Elizabeth Burch & Chris Seeger

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For the mass tort and MDL enthusiasts of the world, I hope you'll be able to join me, Chris Seeger, and Judge John Koeltl on Tuesday, October 20, at 2pm EST via zoom for a discussion hosted by NYU's Civil Justice Center.

We'll be talking about MDLs and how to improve them, with topics ranging from so-called claims census, the need for remands, leadership's ethical obligations to nonclient plaintiffs, the role of the MDL judge in non class MDLs (and during settlements), and ways to reinvigorate the jury trial in the midst of the covid19 pandemic.  I'll also be highlighting some of the critiques that I have of the system as well as ways that we might address them.

We plan to take audience questions after each of our topics and I'd love to hear from you.

Registration is free (I think) and has been approved for 2 hours of CLE credits in the areas of professional practice.  

October 13, 2020 in Class Actions, Conferences, Current Affairs, Mass Tort Scholarship | Permalink | Comments (0)

Monday, May 25, 2020

Judicial Adjuncts in Multidistrict Litigation: from Special Masters to Claims Administrators

As our readers tend to know, MDLs prioritize efficiency.  That is, after all, what the statute was designed to do--promote efficient resolution. 

But what's often unknown is the best way to promote efficiency and whether efficiency might have unintended consequences.

Back in 2019, the American Bar Association (ABA) called for courts to appoint special masters regularly in MDLs. Its report claimed that multidistrict proceedings in particular could “benefit from specialized expertise,” and that “[e]ffective special masters reduce costs by dealing with issues before they evolve into disputes and by swiftly and efficiently disposing of disputes that do arise.”

The ABA’s resolution thus urged judges to appoint special masters in complex cases at “the outset of litigation” and permit them to do everything from oversee discovery and pretrial litigation to conduct trials based on parties’ consent, allocate settlements, and administer claims. Failing to do so, it cautioned, “[r]egardless of the reason,” “may disserve the goal of securing ‘a just, speedy, and inexpensive determination.’”  Neither this reproach nor the ABA’s empirical claims included empirical support, however.

My co-author, Margie Williams, and I set out to investigate. But we didn't just look into special masters, we considered everyone that judges allocate power or authority to in MDLs: magistrate judges, claims administrators, lien resolution administrators, and even banks. We posted our article, Judicial Adjuncts in Multidistrict Litigation, on SSRN today and the paper will appear in Columbia Law Review this December. But for those of you who'd prefer the quick version, here's a summary of our findings:

Proceedings with special masters lasted 66% longer than those without them.

Using a duration model allowed us to investigate this statistic further by controlling for a proceeding's outcome (settlements uniformly took longer), personal-injury claims (which likewise took longer), and the number of actions in a proceeding (the more actions, the longer the proceeding lasted).

Nevertheless, appointing a judicial adjunct of any kind made the proceedings continue longer than they otherwise would, all else being equal. 

Designating a judicial adjunct meant that the proceeding was 47% less likely to end. And for every additional adjunct appointed, there was an 11% decrease in the probability of a proceeding ending.

Of course, magistrate judges are salaried court employees. Appointing them does not add to parties' cost. But parties must pay for special masters, claims administrators, etc., which raises questions about costs. After all, Rule 1 isn't just concerned with efficiency; it's concerned with securing "the just, speeding, and inexpensive determination of every action and proceeding." Here, however, we ran into a roadblock:

Compensation information was either undisclosed or affirmatively sealed for 62% of private adjunct appointments.

Some of the payments that we could unearth ran into the millions. In the Actos proceeding, for instance, Special Master Gary Russo charged over $4.7 million and Deputy Special Master Kenneth DeJean charged over $1.3 million. And special settlement masters Ken Feinberg, Michael Rozen, John Trotter, and Cathy Yanni collectively charged over $9.4 million to administer the Zyprexa settlement. 

Even though we couldn't always identify the amounts charged, we were able to discern that plaintiffs alone bore the costs for 54% of private adjuncts, meaning that in over half the the appointments, defendants did not contribute.

To try and figure out why judges appoint judicial adjuncts if proceedings with adjuncts cost more and last longer, we conducted confidential interviews with plaintiff and defense attorneys, special masters, claims administrators, magistrate judges, and district court judges with a wealth of MDL experience.

Interviews revealed two competing narratives. In one version, courts outsourced to effectively manage complex cases behind the scenes and closely monitored those appointed. In the other, repeat players in both the bar and the private-adjunct sector came to mutually beneficial arrangements that exposed real-life problems over capture, self-dealing, bias, transparency, and ad hoc procedures.

You'll just have to read the paper for those juicy tidbits (and there are plenty). They can be found in Part IV.  

We did create some pretty fascinating data visualizations that were just too detailed to work in the article, so I thought I might share those with you here instead. I'd just ask that before you quibble with our categorizations that you read the caveats and explanations that we provide in the paper itself. But of course we'd welcome feedback.  The following visualization provides what I think of as a snapshot of the lifecycle of an MDL, with critical events like centralization, settlement, and dispositive decisions included alongside judicial adjunct appointments, which are also color coded.  A different version of the graphic that's less "busy" appears in the paper. Clicking on the graphic will bring up an interactive version that allows you to see more details.

Lifecycle of MDL with Judical Adjuncts

As our readers surely know, it's difficult to pinpoint all of the factors that make a proceeding complex. Nevertheless, we tried!  Of course, we can't measure things like the difficulty of proving causation, but we did code for the way the proceedings were resolved (as judged by the majority of the actions--some individual settlements may have occurred, for instance, even in proceedings we marked as "defense wins"); whether the proceeding included personal-injury allegations, whether the defendants were related to one another (e.g., parent-subsidiary), and the number of actions in the proceeding.  

The following visualization includes some of those factors, pairing them alongside the days to a proceeding's closure, the number of actions in the proceeding, and the number of judicial adjuncts in the proceeding.  Again, we provide some important qualifiers in the paper itself.  

Here are two: First, we use the official closed date rather than the settlement date because many of our adjuncts were appointed post-settlement to help administer the settlement program. Thus, the date the the court formally closes the proceeding remains an important milestone. (You can still see settlement dates in the above graphic.)

Second, in some proceedings, the number of actions filed on the court docket may well undercount the actions affected by the MDL.  This is because global settlements often include state-court plaintiffs and unfiled claims, judges have begun to create shadow dockets, and parties institute tolling agreements so that claims do not actually appear on the docket. Unfortunately, systematic data is not publicly available to remedy these deficiencies. 

Even with those caveats in place, you might find this interesting--I certainly did:

MDL Complexity - Outcomes  PI  Actions  Adjuncts

Again, clicking on the graphic above will open an interactive version. 

I hope this post is enough to interest you in the paper itself. We offer a number of theoretical contributions and suggestions to help chart a path forward that may interest MDL judges and attorneys. 

As always, we welcome your comments.

May 25, 2020 in Aggregate Litigation Procedures, Class Actions, Mass Tort Scholarship, Procedure, Products Liability, Settlement, Vioxx, Zyprexa | Permalink | Comments (0)

Wednesday, January 22, 2020

Symposium on New Frontiers in Torts: The Challenges of Science, Technology & Innovation at Southwestern Law School in Los Angeles

The Southwestern Law Review Symposium, New Frontiers in Torts: The Challenges of Science, Technology, and Innovation, will take place on Friday, February 7, 2020 at Southwestern Law School in Los Angeles.  The Symposium is the inaugural event of Southwestern Law School’s Panish Civil Justice Program, which was endowed by one of the country’s leading trial lawyers, Southwestern Law School alumnus Brian Panish.  The Symposium's first panel will focus on tort practice, addressing an eclectic mix of subjects ranging from predictive analytics and e-discovery to scientific evidence and the cognitive science of jury persuasion.  Next, panel two will examine recent trends in financing lawsuits and proposals for changing non-lawyer relationships with law firms.  In panel three, the discussion turns to new forms of tort litigation, including recent developments in multidistrict, complex, class, and toxic tort actions such as the opioid mass litigation, among others.  The fourth panel will examine tort theory, analyzing both how traditional theories can deal with new tort problems and how new theories may help place old quandaries in sharper focus.  The Symposium will also include a luncheon keynote discussion on the past, present, and future of torts.  Registration for the symposium is available now.

Speakers and moderators at the symposium will include the following:

  • Ronald Aronovsky, Professor of Law, Southwestern Law School;
  • Mark Behrens, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
  • John Beisner, Partner and Leader, Mass Torts, Insurance and Consumer Litigation Group, Skadden Arps Slate Meagher & Flom LLP;
  • Alan Calnan, Professor of Law, Southwestern Law School;
  • Fiona Chaney, Investment Manager and Legal Counsel, Bentham IMF;
  • James Fischer, Professor of Law, Southwestern Law School;
  • Manuel Gomez, Associate Dean of International and Graduate Studies and Professor of Law, Florida International University College of Law;
  • Michael Green, Bess and Walter Williams Professor of Law, Wake Forest University School of Law;
  • Gregory Keating, Maurice Jones, Jr. – Class of 1925 Professor of Law and Philosophy, University of Southern California Gould School of Law;
  • Richard Marcus, Coil Chair in Litigation and Distinguished Professor of Law, UC Hastings College of Law;
  • Francis McGovern, Professor of Law, Duke Law School;
  • Linda Mullenix, Morris & Rita Atlas Chair in Advocacy, University of Texas at Austin School of Law;
  • Brian Panish, Founding Partner, Panish, Shea & Boyle;
  • R. Rex Parris, Founding Partner, Parris Law Firm;
  • Christopher Robinette, Professor of Law and Director, Advocacy Certificate Program, Widener University Commonwealth Law School;
  • Michael Sander, Managing Director and Founder, Docket Alarm, and Director, Fastcase Analytics;
  • Victor Schwartz, Partner and Co-Chair, Public Policy Practice Group, Shook, Hardy & Bacon;
  • Anthony Sebok, Professor of Law, Yeshiva University Cardozo School of Law;
  • Catherine Sharkey, Crystal Eastman Professor of Law, New York University School of Law;
  • Kenneth Simons, Chancellor’s Professor of Law, UC Irvine School of Law;
  • Byron Stier, Associate Dean for Strategic Initiatives and Professor of Law, Southwestern Law School;
  • Dov Waisman, Vice Dean and Professor of Law, Southwestern Law School; and
  • Adam Zimmerman, Professor of Law and Gerald Rosen Fellow, Loyola Marymount University Law School Los Angeles.

January 22, 2020 in Aggregate Litigation Procedures, Class Actions, Conferences, Ethics, Lawyers, Mass Tort Scholarship, Preemption, Procedure, Products Liability, Punitive Damages, Science, Trial | Permalink | Comments (0)

Tuesday, December 10, 2019

Mass Tort Deals: A Response to Ellen Relkin and an Open Invitation

Since I published Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation last May, I’ve received a lot of private emails from lawyers in the trenches who agree with my diagnosis of the problems in MDL. As the book details, incentives within multidistrict litigation tend to skew toward insiders’ self-interest, not the public interest or plaintiffs’ interests. Left unchecked, self-interest can takeover. And there are no checks. Consequently, there is an urgent need to improve the mass-tort system and its inhabitants as a whole.

Of course, in writing the book, I knew there would be backlash, particularly from those ensconced within the system who have much to lose from any change in the status quo. And judging from the latest review of my book on Amazon, it appears I’ve struck a nerve.

It comes from Ellen Relkin, a plaintiffs’ lawyer who served as co-lead counsel in DePuy ASR; lead and liaison counsel in Stryker; and on the court-appointed executive committee in Ortho Evra, Yasmin/Yaz, and Biomet.

To begin, I’d like to thank Ms. Relkin for taking time to review the book.  I hope very much that it will lead to a dialog and a broader exchange of information, not just between the two of us, but between academics and practitioners more broadly.  As my mentor, Richard Nagareda, impressed upon me, ours is a field that is driven deeply by what judges and lawyers do in real time, on the ground, not by what academics say to one another in lofty towers.

It was with that in mind that I began writing what eventually became Mass Tort Deals, which Relkin colorfully dubs a “book parading as empirical research.” It is the culmination of six-years worth of data collection on all the products-liability proceedings pending on the MDL docket as of May 2013, and its Appendix boils down all of that data into 41 pages of tables. All of the documents that I collected are freely available to the public and word searchable here.  Whether you love, hate, or are completely indifferent to the book, you are welcome to make use of all of the data and documents without having to pay Pacer fees.

What to make of the data is, of course, open to various interpretations.  Mass Tort Deals reflects my conscious choices both about how to present data in an inviting, accessible way, and which case studies and anecdotes might best convey key points. Those choices are based not only on the raw numbers (which are all disclosed), but on many hours of interviews with attorneys and judges as well as reading hundreds of motions, arguments, and court transcripts. Lawyers and judges who lived those proceedings will, invariably, have different opinions about their strengths and weaknesses, as Relkin’s critique demonstrates.

That brings me to Relkin’s specific comments, which I respond to briefly below:

  • “The book is biased.”

Unfortunately, I’m not sure what this means. I don’t represent any clients, I don’t consult for lawyers on either side, and my funding comes entirely from my university (no private grants, etc.). I do have a perspective and an opinion from doing extensive research, but I am about as neutral as they come. As Relkin notes, on the other hand, she served as lead counsel in some of the mass tort deals that I criticize and, one presumes, has profited substantially from them.

  • “[T]he book criticizes and makes incorrect assumptions without ever interviewing the lead counsel . . .”

As noted, I did speak with a number of plaintiffs’ attorneys on background (including those in DePuy ASR).  Those lawyers asked not to be named for fear of retribution, which I describe in Chapter 3. Lance Cooper was the sole attorney who agreed to be interviewed “on the record.” Unlike the lawyers affected by, but not in control of the proceeding, lead lawyers’ positions tend to be apparent from reading the motions that they file and the arguments they make in a hearing’s transcripts.

Despite putting these proceedings under a microscope, however, some critical information just isn’t publicly available, as I note in the book’s Introduction.  The terms of most private settlements remain private, and even for those that are publicly available, it is rare indeed to find information on substantive outcomes—who gets what, in other words.

More frustrating still are the many sealed documents. (Reuters has echoed this same frustration in a series of articles on opioids and Propecia.) DePuy ASR was a particularly opaque proceeding in that regard. The leaders, for example, sealed their common-benefit fee and cost awards (motions, orders, etc.).  Why insist on secrecy in court-awarded attorneys’ fees?

This is one of the key concerns that I address in Mass Tort Deals: too little disclosure can lead to too much room for abuse of process.  The information that is available suggests that there is a systemic lack of checks and balances in MDLs that may benefit insiders like lead plaintiffs’ attorneys, at their clients’ expense. In short, proceedings should be more transparent—deciding issues in secret breeds mistrust.

To that end, if you have data on substantive outcomes (who, exactly, gets what), please share it with me. I would love to know more about how much money is paid out and to whom, how long it takes to administer claims, whether like plaintiffs are treated equally, how much money it costs to put dollars in class members’ hands versus plaintiffs in private settlements, etc.

  • “The book overlooks litigation challenges in some of the cases including the enormous costs of trying complex pharmaceutical and medical device cases, especially those with mild to moderate injuries, general and specific medical causation challenges, preemption issues, learned intermediary challenges, among other difficulties in some cases.”

Relkin is correct in that this book is about the procedures used to resolve cases, not substantive tort law. But to the heart of her concern, I discuss costs on pages 24-25, general and specific causation on pp. 112, 116, and 210. And I emphasize the pros and cons of bellwether trials on pp. 107-110.

  • “Ms. Burch incorrectly attributes lead counsel in the DePuy ASR settlement, incorrectly interprets and describes features of the settlement, overlooks an enormous and virtually unprecedented benefits of the settlement . . ., incorrectly claims that the Extraordinary Injury Fund awards were unknown when in fact the scheduled award amounts were listed in an appendix to the settlement agreements that have been and are still on-line, among other errors.”

The only concrete thing I can find to respond to here is Relkin’s claim about the Extraordinary Injury Fund.  As I observed on p. 140, the DePuy ASR settlements did estimate a claimant’s base award, but even after another search of the settlement’s website, I still don’t see any amounts actually paid out to clients listed anywhere.  Of course, it’s certainly possible that I’ve missed something.  So, here’s a link to the website if you’d like to dig in. 

  • “The two unhappy clients she quotes from a New York Times article are certainly not a representative sample. Using that standard, one could go on ‘Rate My Professor’, and while finding many good reviews of Professor Burch, would find some students who gave her unfavorable ratings.”

Okay, I couldn’t resist. It appears the last posting I received on “Rate My Professors” was in 2011 and of the 8 total posts, I received 7 “Awesome’s” and 1 “Good” (which still wrote “Great prof”). (Personally, I’m partial to the one that said “Amazing teacher. Funny, pretty, witty, and just downright brilliant,” but hey, maybe I am biased.)

More to the point, writing the book did make me realize that I needed to hear directly from plaintiffs, hence the Procedural Justice Study that I began over a year ago. 

Relkin kindly mentions that “she would have been happy to share the many thank you notes from enormously grateful clients who fared very well,” so I hope that she and other plaintiffs’ lawyers will ask their Yasmin/Yaz and Ortho Evra clients to participate in the Procedural Justice Study as well as any clients they might have in the other covered women’s health proceedings: Pelvic Mesh, Talcum Powder, Mentor ObTape, Mirena, Norplant, Fen-Phen, Dalkon Shield, NuvaRing, Silicone Gel Breast Implants, Power Morcellator, Ephedra, Fosamax, Monat Hair Care, Rio Hair Naturalizer, Prempro, and Protegen Sling.

Please disseminate the survey link broadly to your clients; I absolutely want to hear from all of them.  By way of background, the study does not ask for any confidential information (settlement or otherwise); the basic info it seeks include things that plaintiffs can readily find in their complaint.  The study’s focus is on how plaintiffs feel about their experience with the justice system—the judges, the lawyers, etc. 

My aim in this is to update and expand upon RAND’s 1989 Perception of Justice survey by identifying what litigants care about in the MDL context.  I hope to hear from as many plaintiffs as possible (their names and any identifying information will be kept completely confidential).

Happy to hear from each of you, too. And if there are things I should know more about, consider this an open invitation to contact me.

Screenshot 2019-12-10 16.52.39

December 10, 2019 in Aggregate Litigation Procedures, Books, Fen-Phen, Lawyers, Mass Tort Scholarship, Prempro, Procedure, Products Liability, Settlement | Permalink | Comments (3)

Thursday, September 26, 2019

The Short Guide To Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

Over at our sister blog, Business Law Prof Blog, Professor Ben Edwards has been making his way through my recent book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.  He does an excellent job of both summarizing and commentating on each chapter. So, if you just don't have the time to do a deep dive into a new book right now but want the quick and dirty takeaway alongside thoughtful, insightful commentary, here are the links to his posts so far:

Chapter 1 - Mass Tort Deal Making - on the nuts and bolts of class actions vs. multidistrict proceedings

Chapter 2 - Mass Tort Deals - on whether quid-pro-quo arrangements exist between lead plaintiffs' attorneys & defense lawyers 

Chapter 3 - Mass Tort Deals - on repeat player dynamics in aggregate litigation (leadership appointments, etc.)

Chapter 4 - Mass Tort Deals - on judges coercing facilitating mass tort settlements 

Chapter 5 - Mass Tort Deals - on the likeness between MDL deals and arbitration

Chapter 6, on reform proposals, will be coming next week.

If you're interested in all of the data and documents in the book, they are all available for free online. That site also has some data visuals that aren't in the book, like this one (clicking the image will bring up an interactive version):

Dashboard 5

 

September 26, 2019 in Aggregate Litigation Procedures, Asbestos, Books, Class Actions, Current Affairs, Ethics, Lawyers, Mass Disasters, Mass Tort Scholarship, Medical Devices - Misc., Pharmaceuticals - Misc., Procedure, Products Liability, Settlement, Trial, Vioxx | Permalink | Comments (0)

Tuesday, August 6, 2019

Five Thoughts on Today's Opioid Hearing on a "Negotiation Class"

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!

Screenshot 2019-08-06 15.58.42

August 6, 2019 in Class Actions, Current Affairs, Ethics, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0)

Wednesday, June 12, 2019

Come for the Opioids, Stay for the Civil Procedure

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

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

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

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

Thursday, May 16, 2019

MDL Data, Free & Searchable MDL Docs, MDL Rules, and a New Book on Mass Torts

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.

The Book, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation:

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):

MDL Proceedings by Type

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): 

MDL Proceedings by Total Actions (Historical)

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):

How Do Product-Liability MDLs End?

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.

But worries about collusion, self-interest, and overreaching don’t disappear just because mass litigation can’t be certified as a class action. Instead, we might worry more because the judge lacks any clear-cut authority to police the proceedings in the same way.
 
Those concerns can be exacerbated if repeat players exist leadership positions, which they do. The graph below shows who those players are and you can click here for an interactive version:
Repeat Players in MDLs within the Dataset
 
Some judges appoint more lead lawyers than others, as the graphic below illustrates (click here for an interactive version):
 
Leadership Appointments by MDL Proceeding Stacked
 
That repeat players exist isn’t surprising in and of itself. Attorneys specialize all the time. It might be that they use their expertise to generate better outcomes for their clients. But playing the long game may also mean that repeat players develop working relationships with their opponents such that each side can use private settlement to bargain for what matters to them most from a self-interested standpoint.
 
For corporate defendants and their lawyers, this means ending the litigation with the least cost. For lead plaintiffs’ lawyers, this typically means attorneys’ fees—specifically common-benefit fees (the fees they receive for the work they do on behalf of the group as a whole).  As Chapter 3 of Mass Tort Deals details, repeat-player attorneys are prevalent in leadership positions on both the plaintiff and defense side in products-liability multidistrict proceedings.  Here's a look at the major law firms involved in these proceedings on both sides (interactive version):
Repeat Player Plaintiff and Defense Law Firms
 
To the extent possible given that most of the mass-tort settlements were private, Chapter 2 examines the deals that these repeat players negotiated with one another. After confirming that one of the top five most connected repeat players participated directly in each settled proceeding’s leadership, I identify the provisions within those settlements that are arguably more beneficial to plaintiffs’ lead lawyers or to the defendants than to the actual plaintiffs.
 
How do these provisions work? To stymie the lawsuits against them, for example, defense corporations include settlement provisions designed to push as many plaintiffs as possible into the settlement program. These "closure" clauses might require plaintiffs’ lawyers to recommend that all their clients accept the settlement offer and, if the client refuses, take steps to withdraw from representing that client.
 
To enter a settlement program, plaintiffs must typically dismiss their lawsuit. But, as I explain in Chapter 5, those plaintiffs often don’t know what, if anything, they will receive under that program. So, plaintiffs may be giving up their lawsuit in exchange for no compensation whatsoever.
 
For example, in litigation over the acid-reflux medicine Propulsid, out of the 6,012 claimants who entered into the settlement program, only 37 received any money. The rest received nothing, but had already dismissed their lawsuit as a condition of entering into the program. Those 37 plaintiffs collectively received little more than $6.5 million.
 
The lead plaintiffs’ lawyers in Propulsid, however, negotiated their common-benefit fees directly with the defendant, Johnson & Johnson, and received $27 million. Much of the remaining funds then reverted back to Johnson & Johnson.
 
Lead plaintiffs’ lawyers in Propulsid announced that they were creating a template for all future deals. Chapter 2 of Mass Tort Deals shows that they did exactly that.
 
Considering settlements that occurred over a 14-year span, Chapter 2 shows that every deal contained at least one closure provision for defendants. Nearly all settlements also contained some provision that increased lead plaintiffs’ lawyers common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a troubling departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcomes.
 
In short, Mass Tort Deals raises the concern that as repeat players influence practices and norms in mass torts, they may undermine plaintiffs’ ability to freely consent to the settlement. That may or may not affect the substantive outcome. Unfortunately, most of the data on how plaintiffs fared under settlement programs was not publicly available.
 
Rules for MDLs?

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)

Friday, February 8, 2019

Sarah Swan on Preempting Plaintiff Cities

Professor Sarah L. Swan (Florida State Law) has posted to SSRN her manuscript, Preempting Plaintiff Cities, Fordham Urb. L. J. (forthcoming).  Here is the abstract:

Within the city-state relationship, states hold an enormous amount of power. Recently, states have been using that power to pass extremely aggressive preemption laws that prohibit cities’ regulatory efforts on many fronts. These new preemption laws most commonly occur in the context of red states limiting the regulatory scope of blue cities, inflaming those already tense city-state relationships and cutting into what many view as the appropriate scope of local autonomy.

But despite this intense clash in the regulatory sphere, when we move away from the world of city regulation and toward the world of city litigation, things look surprisingly different. Although cities have been bringing forward hundreds of quite controversial claims against corporate wrongdoers for harms ranging from the subprime mortgage crisis to the opioid epidemic, such plaintiff city litigation has provoked relatively little state hostility. States have not ratcheted up their response to this exercise of city power in at all the same way as they have for regulation. Rather, states have shown a remarkably limited appetite for preempting plaintiff city litigation.

What accounts for these differing responses? Three main factors are likely in play. First, while regulatory preemption is largely the result of intense political polarization, states have historically viewed litigation against corporate wrongdoers in less partisan terms. Both blue and red states have themselves engaged in this type of litigation, and there is thus an institutional tradition of flexibility in this context. Second, and relatedly, the issues at the heart of plaintiff city litigation are often not as politically divisive as those at the heart of the preempted regulations. Harms like lead paint poisoning and the opioid epidemic have attracted widespread condemnation, while many of the regulation preemption subjects remain hotly contested. Finally, unlike regulation, litigation is not an obvious instrument of governance. It has unpredictable outcomes, it is not an exclusively governmental power, and it relies on existing law.

Since plaintiff city litigation operates mostly outside of state crosshairs, it can provide a space for cities looking to pursue progressive goals. Plaintiff city litigation may not achieve the same immediate governance goals as regulation, but it does have significant political benefits for cities and their residents. Thus, even in an era of rampant regulatory preemption and deep political animosity between cities and states, plaintiff city litigation presents a viable parallel track for cities to continue their pursuit of urban social justice. Although such litigation does not directly address the contentious issues forming the basis of regulatory battles, it does offer a means of protecting vulnerable communities and advancing goals of democratic equality in other ways.

February 8, 2019 in Current Affairs, Mass Tort Scholarship, Regulation | Permalink | Comments (0)

Thursday, February 7, 2019

Nikki Chamberlain on Class Actions in New Zealand

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

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

 

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

Wednesday, February 6, 2019

Eri Osaka on the Fukushima Nuclear Disaster Compensation Scheme

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

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

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

 

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

Tuesday, December 4, 2018

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

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

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

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

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

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

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

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

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

Tuesday, October 2, 2018

Types of Litigation Finance (for journalists)

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

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

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

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

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

Monday, October 9, 2017

Information is the Key to Enforcement: A New Case Study

A new and really fascinating case study about environmental mass tort litigation against Du Pont was posted recently by the NBER.  You can find the piece here.  It demonstrates how a company came to ignore the injuries that its product (in this case a toxin called C8) and how it can be that this decision was value maximizing for shareholders.

The bottom line answer is that the company's ability to hide information and delay payment of any penalties, combined with the relatively low exposure in tort and regulatory penalties, made it sensible because it knew it would not have to internalize the full costs of its conduct.  It demonstrates that information and secrecy is at the core of the effectiveness (or ineffectiveness) of regulation and litigation.  

October 9, 2017 in Mass Tort Scholarship | Permalink | Comments (0)

Wednesday, August 16, 2017

What duties do lead counsel owe plaintiffs in multidistrict litigation?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Sunday, August 6, 2017

James Henderson on the Impropriety of Punitive Damages in Mass Torts

Professor James Henderson (Cornell Law) has posted to SSRN his article, The Impropriety of Punitive Damages in Mass Torts, 52 Ga. L. Rev. (forthcoming).  Here is the abstract:

Punitive damages have been around for centuries in classic one-on-one tort actions and are here to stay. Mass torts, of more recent origin and not without difficulties, have matured to the point that this article is comfortable referring to most of them as traditional. Notwithstanding the legitimacy of both institutions when employed separately, loud warning signals should sound when, as with drinking and driving, they are combined. Potentially destructive mixes of punitive damages and mass torts have, unfortunately, been prevalent in traditional, fault-based mass tort actions. The difficulties are mostly administrative. Although punitive damages are conceptually compatible with fault-based mass torts, courts administer punitive awards in ways that are so capricious as to generate gross unfairness and inefficiency. And if for that reason the warning signals should be loud in connection with punitive awards in traditional mass torts, they should be downright deafening if and when courts consider awarding punitives in what this article refers to as emerging, nontraditional, enterprise-liability-based forms of mass tort.

Given that these serious difficulties cannot be eliminated by marginal reforms, this article argues that punitive damages are manifestly inappropriate in, and must be eliminated from, all forms of mass tort. Of course, a broad proscription would require courts to overrule precedent in connection with traditional mass torts, and this article explains how this could be accomplished. By contrast, such a proscription would come early enough in the development of emerging forms of mass tort to nip punitive awards in the bud without the need to overrule longstanding precedent. Thus, if courts are going to eliminate punitive awards in mass torts, now is the time for them to act.

August 6, 2017 in Mass Tort Scholarship, Products Liability | Permalink | Comments (0)

Friday, June 2, 2017

A Note to Mass Tort Plaintiffs on HR 985

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

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

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

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

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

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

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

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

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

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

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

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

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

And here are links to other academic commentary - 

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

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

Friday, May 12, 2017

Iowa Class Action Against Grain Plant Affirmed

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

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

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

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

 

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