Tuesday, February 16, 2021

George Mason Law & Economics Center Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions

The Law & Economics Center at George Mason University Scalia Law School is hosting on online Symposium on the Economics and Law of Civil Remedies: Developments in Damages and Nationwide Injunctions from 10:00 a.m. to 2:55 p.m. EST on Friday, February 19, 2021.  Registration is free.  Here is the agenda:

10:00 – 10:05 am Opening Remarks

Donald J. Kochan, Professor of Law and Deputy Executive Director, Law & Economics Center
George Mason University Antonin Scalia Law School

10:05 – 11:05 am
Panel 1: An Update on the Ongoing Debate over Nationwide Injunctions, Especially with a Change in Presidential Administration
Samuel L. Bray, Professor of Law, The Notre Dame University Law School
Scott A. Keller, Former Solicitor General
State of Texas (2015-2018)
Amy Marshak, Senior Counsel, Institute for Constitutional Advocacy and Protection and Adjunct Professor of Law, Georgetown University Law Center
Michael T. Morley, Associate Professor, Florida State University College of Law
Moderator: Trevor N. McFadden, District Judge, US District Court for the District of Columbia

11:15 am – 12:15 pm
Panel 2: Developments in Punitive Damages
Eric D. Holland, Owner and Partner, Holland Law Firm, LLC
Evan M. Tager, Partner, Mayer Brown
W. Kip Viscusi, University Distinguished Professor of Law, Economics, and Management
Co-Director, PhD Program in Law and Economics
Vanderbilt Law School
Navan Ward, Principal, Beasley Allen
Moderator: Harris L Hartz, Circuit Judge, US Court of Appeals for the Tenth Circuit

12:45 – 1:45 pm
Panel 3: The Controversy over Trends in High Damage Awards: A Discussion on Causes and Consequences
David Ball, Trial Consultant, Malekpour & Ball Litigation Strategy
Mark A. Behrens, Co-Chair, Public Policy Practice Group, Shook Hardy & Bacon
John H. Beisner, Partner, Litigation, Mass Torts, Insurance, and Consumer Litigation
Skadden, Arps, Slate, Meagher & Flom LLP
Laura Frank Sedrish, Partner, Jacoby & Meyers
Moderator: Brock A. Swartzle, Judge, Michigan Court of Appeals

1:55 – 2:55 pm
Panel 4: Issues in Documenting and Calculating Damages: The Debate Over Medical Financing and “Phantom” Damages
Nicholas C. Johnson, Of Counsel, Cohen Milstein Sellers & Toll PLLC
Drew LaFramboise, Partner, Ashcraft & Gerel
Lee Mickus, Partner, Evans Fears & Schuttert LLP
Caitlin F. Saladrigas, Partner, Holland & Knight
Moderator: William C. Mims, Justice, Virginia Supreme Court

February 16, 2021 in Conferences, Procedure, Punitive Damages | Permalink | Comments (0)

Wednesday, December 23, 2020

Civil Justice Fest Panel Videos from the Law & Economics Center at George Mason University Scalia Law School

The Law & Economics Center at George Mason University Scalia Law School has posted online the videos for all of the panels for Civil Justice Fest: A Month of Dialogues on the Most Pressing Civil Justice Issues.

December 23, 2020 in Aggregate Litigation Procedures, Procedure, Products Liability | Permalink | Comments (0)

Tuesday, December 22, 2020

Plaintiffs' Attorney Shanin Specter Critical of Certain MDL Practices

Article in Legal Newsline -- Plaintiffs lawyer rips colleagues over multidistrict litigation fees, pressure tacticsby Daniel Fisher:

Federal multidistrict litigation, a procedure intended to resolve mass-tort lawsuits fairly and efficiently, has mutated into an unethical moneymaking machine for lawyers that is badly in need of reform, a prominent plaintiff attorney says as he prepares to lobby for changes.

Conservatives and tort-reform groups have long criticized MDLs as a form of asymmetric warfare against defendants in which thousands or even tens of thousands of lawsuits are gathered before a single federal judge who frequently sets settlement, not trial on the merits, as the goal. But it is unusual for a plaintiff attorney to lodge such a fierce critique on the procedure that has earned his colleagues billions of dollars in fees.

December 22, 2020 in Aggregate Litigation Procedures, Procedure, Products Liability | 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.

PFC_Logo-New-Horizontal_slide_590_380_80_c1

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

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)

Sunday, March 17, 2019

Bayer's Essure Suits Back to State Court Because Preemption Does Not Create Federal Question Jurisdiction

Recent ruling from the Fourth Circuit described in Bloomberg article -- Bayer Must Face Revived Essure Suit in N.C. State Court.  The article notes that as of January 28, nearly 30,000 Essure users are suing Bayer. 

March 17, 2019 in Procedure, Products Liability | 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)

Sunday, August 6, 2017

Recent Judicial Panel on Multidistrict Litigation Hearings in Los Angeles

Saturday, July 29, 2017

WSJ Article on the Waning of the Era of Tort Lawsuits

Article in the Wall Street Journal -- We Won't See You in Court: The Era of Tort Lawsuits is Waning, by Joe Palazzolo.

July 29, 2017 in Lawyers, Procedure, Products Liability | Permalink | Comments (0)

Sunday, July 23, 2017

Skadden Summer 2017 Class Action Chronicle

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

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

Saturday, July 15, 2017

Judge Weinstein, 50 Years on the Bench

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

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

Friday, June 2, 2017

A Note to Mass Tort Plaintiffs on HR 985

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

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

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

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

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

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

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

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

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

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

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

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

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

And here are links to other academic commentary - 

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

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

Tuesday, April 4, 2017

HR 985 and Congress's Judicial Mistrust

With everything else that's dominated the news, it's easy to place the "Fairness in Class Action Litigation Act" on the back  burner. But to forget that it's still an active bill (having now passed the House and pending before the Senate) would be a mistake.

Professor Myriam Gilles (Cardozo) and I recently published an op-ed with Bloomberg Law, which appeared in yesterday's Product Safety & Liability Reporter and will be in next week's Class Action Litigation Report titled Congress's Judicial Mistrust.  You can read it here:  Download Bloomberg Law - Congress's Judicial Mistrust.

We explained our legal positions more fully in our respective letters to the House Judiciary's subcommittee.  Download Burch Final Comments on Fairness in Class Action Litigation ActDownload Gilles Letter to James Park on HR 985.

 

April 4, 2017 in Class Actions, Current Affairs, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Settlement | Permalink | Comments (0)

Friday, March 3, 2017

Litigation Reform's Legislative Prospects

Bruce Kaufman, the senior legal editor at Bloomberg BNA, has written a very informative series of articles examining the prospects that the House, Senate, and President will enact wide-ranging tort and civil justice "reform" legislation.  This legislation includes:

  • HR 985, the "Fairness in Class Action Litigation Act"
  • HR 725, the "Innocent Party Protection Act"
  • HR 469, the "Sunshine for Regulatory Decrees and Settlements Act"
  • HR 720, the "Stop Settlement Slush Funds Act" or "Lawsuit Abuse Reduction Act"
  • and HR 906, the "Furthering Asbestos Claims Transparency Act"

All three articles are worth a careful read.  Links and downloads included below, courtesy of Bruce and Bloomberg BNA.

For those of you who missed the academic roundup on HR 985, you can find it here.

Floor debate on at least four of the bills (including the now merged HR 985 and HR 906, class actions and asbestos) is scheduled to begin as soon as the week of March 6.  A seventh bill on medical malpractice reform, HR 1215, may be voted on the week after March 6.

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