Friday, December 1, 2023
Those of you who have been following the opioid lawsuits know that on Monday, December 4, 2023, the Supreme Court will hear oral arguments over whether to allow the billionaire Sackler family behind Purdue Pharma to glom on to Purdue's bankruptcy without declaring bankruptcy itself.
But do you know what's at stake for mass torts? Professors Abbe Gluck (Yale), Adam Zimmerman (USC Gould), and I explore that question in a new paper forthcoming in Yale Law Journal Forum. As we explain, the case provides a critical opportunity to reflect on what is lost when parties in mass torts find the “behemoth” litigation system unable to bring mass disputes to a close, when they charge multidistrict litigation as a “failure,” and when defendants contend that sprawling lawsuits across national courts have thrown them into unresolvable crisis that only bankruptcy can solve. Harrington v. Purdue Pharma L.P. is just one of many recent examples of extraordinarily unorthodox and creative civil procedure maneuvers—in both the bankruptcy and district courts—that push cases further away from the federal rules and the trial paradigm in the name of settlement.
Unlike ordinary state and federal trial courts, bankruptcy courts don’t generally lay blame for millions of deaths; they efficiently distribute resources. Petitioners in bankruptcy aren’t called “victims” or “plaintiffs”; they are “creditors” with limited voting rights over the distribution of an estate. Bankruptcy courts don’t develop state tort doctrines. They don’t engage in broad discovery designed to reveal accountability and spur policy reform. They rarely utilize juries or hear testimony from tort victims anxious to have their day in court; instead, testimony tends to focus on the debtor’s financial health.
Yet diverse defendants—many of whom, notably, are not even in financial distress—from Catholic Diocese and Boy Scout abuse cases, to Johnson & Johnson talc, 3M’s earplugs, Revlon hair straighteners, and many more, have now looked to the bankruptcy court to use its inherent authority to invent new forms of procedure to find a path to global peace. Bankruptcy courts are attractive in part because they possess some powers that, ironically, state and Article III federal courts do not—they are the only American courts that can overcome federalism’s jurisdictional boundaries; they are only courts with the power to commandeer both state and federal litigants into a single forum and halt all other civil litigation no matter what court it is in. They also have stretched their own equitable powers to allow innovative corporate maneuvers, as in Purdue, that cabin liability and preclude future litigation even for entities not in financial trouble. But bankruptcy court is not supposed to be a superpower of a court that trumps all others in public litigation; it is instead, an Article I court designed for efficient, private resolution of claims, centered on capturing private value for private actors–not the elaboration and development of law and public norms.
You can read more here if you're interested.
And if you're wanting to catch up on the issues before SCOTUS next week, check out Charlotte Bismuth & Jonathan Lipson's podcast, Bankruptcy for Billionaires, where the three of us talk about MDL, opioids, and bankruptcy.
December 1, 2023 in Aggregate Litigation Procedures, Class Actions, Current Affairs, Informal Aggregation, Lawyers, Mass Tort Scholarship, Procedure, Products Liability, Sexual Abuse | Permalink | Comments (0)
Sunday, March 17, 2019
Plaintiffs filed the complaint in federal district court in Colorado. Article on the case, Doe v. U.S. Olympic Committee, in Bloomberg -- Ex-Gymnasts Hit Olympic Committee With Sexual Abuse Suit.
Friday, September 12, 2014
On August 21, 2014, the Oregon Supreme Court embraced the ALI's definition of a non-class aggregate settlement and held that an attorney who represented victims of clergy abuse failed to get the clients' informed consent before distributing a lump-sum settlement. In In re Complaint as to the Conduct of Daniel J. Gatti, the court noted that Gatti failed to get clients' informed consent in writing to the formula or method he devised to divvy up the defendants' lump-sum settlement payments, which violated Rule 1.8(g). As a result, the court imposed a 90-day suspension as a sanction.
For more on the problems associated with lump-sum settlements, see Howie's article, The Trouble with All-or-Nothing Settlements.
Thursday, May 15, 2008
Hot off the presses, here's Timothy Lytton's new book on the Catholic Church sex abuse litigation -- Holding Bishops Accountable: How Lawsuits Helped the Catholic Church Confront Clergy Sexual Abuse (Harvard University Press 2008). The book builds on Lytton's related work of the past few years. Here's the abstract as posted on SSRN:
The sexual abuse of children by Catholic clergy is arguably the most acute crisis Catholicism has faced since the Reformation. The prevalence of clergy sexual abuse and its shocking cover-up by church officials have obscured the largely untold story of the tort system's remarkable success in bringing the scandal to light, focusing attention on the need for institutional reform, and spurring church leaders and public officials into action.
Stories of the tort system as an engine of social justice are rare. Holding Bishops Accountable tells one such story by revealing how pleadings, discovery documents, and depositions fueled media coverage of the scandal. Timothy Lytton shows how the litigation strategy of plaintiffs' lawyers gave rise to a widespread belief that the real problem was not the actions of individual priests but rather the church's massive institutional failure. The book documents how church and government policymakers responded to the problem of clergy sexual abuse only under the pressure of private lawsuits.
As Lytton deftly demonstrates, the lessons of clergy sexual abuse litigation give us reason to reconsider the case for tort reform and to look more closely at how tort litigation can enhance the performance of public and private policymaking institutions.
Wednesday, November 7, 2007
The Third Circuit yesterday rejected a civil RICO claim alleging that the Catholic church had covered up incidents of sexual abuse by priests. Plaintiffs brought a class action against the archdiocese of Philadelphia. The district court dismissed on a 12(b)(6) motion, finding that the plaintiffs lacked RICO standing and failed to state a claim of RICO conspiracy. In Magnum v. Archdiocese of Philadelphia, the Third Circuit affirmed the dismissal, emphasizing the inapplicability of civil RICO to personal injury claims:
Appellants' allegation of a lost opportunity to bring state law personal injury claims against the Archdiocese is not cognizable as an injury to "business or property" in a civil RICO action. Because Appellants do not allege that the Archdiocese's conduct injured them in their "business" pursuits, their claim is viable only if their lost opportunity to bring state law personal injury claims is "property." We have held that "physical or emotional harm to a person" is not "property under civil RICO. Similarly, losses which "flow" from personal injuries are not "property" under RICO. (citations omitted)
In a Legal Intelligencer article, Shannon Duffy notes that "[m]any of the allegations in the suit were drawn from the 400-page report of a Philadelphia investigative grand jury that had probed the allegations of sexual abuse by priests," and that "[t]he plaintiffs sought to proceed as a class action, claiming there are up to 500 members of the plaintiff class and at least 63 priests who are known to have engaged in the sexual molestation of children." The allegations in the case call to mind Timothy Lytton's work on the important role tort litigation played in bringing the sexual abuse issue to light and framing the problem as one of institutional failure.
Monday, July 16, 2007
Article in the New York Times -- After Abuse Settlement, an Apology to Victims, by Laurie Goodstein. Here's an excerpt:
A day after agreeing to a record $660 million settlement with 508 victims of sexual abuse by members of the clergy in the Archdiocese of Los Angeles, Cardinal Roger Mahony apologized to the victims for “this terrible sin and crime” and said he hoped the settlement would bring a “final resolution.”
Four years of legal combat ended in a settlement agreement late Saturday, just two days before the scheduled start of a trial in which Cardinal Mahony would have been required to testify.
The settlement is the largest in any Roman Catholic diocese, amounting to about $1.3 million per victim. The Catholic Church in the United States has so far paid more than $2 billion in settlements and legal judgments to victims of sexual abuse and their families.
Lawyers for the archdiocese and the plaintiffs said they were still negotiating details but expected to present an agreement for approval to the judge in the trial this morning.
Wednesday, February 28, 2007
Timothy Lytton has posted a paper on SSRN entitled Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law. Here's the abstract:
By all accounts, the prevalence of clergy sexual abuse and its cover-up by Church officials represents a massive institutional failure. Obscured by all of this attention to the Church's failure is the largely untold story of the tort system's remarkable success in bringing the scandal to light in the first place, focusing attention on the need for institutional reform, and spurring Church leaders and public officials into action. Tort litigation framed the problem of clergy sexual abuse as one of institutional failure, and it placed that problem on the policy agendas of the Catholic Church, law enforcement, and state governments. This Article examines these framing and agenda-setting effects of clergy sexual abuse litigation. It argues that private lawsuits can have a powerful and beneficial effect on policymaking.
Several weeks ago, Lytton wrote a related article for the Boston Globe on the the church sexual abuse litigation, press coverage, and policy impact. Lytton has devoted himself to understanding "social policy" mass torts. Before turning his attention to sexual abuse cases, he was one of the country's leading experts on handgun litigation (I wrote a chapter for his book, Suing the Gun Industry: A Battle at the Crossroads of Gun Control and Mass Torts).