TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Monday, October 10, 2011

Informal Aggregate Settlements

The blogosphere is talking about a recent decision by the United States Court of Appeals for the Second Circuit: Johnson v. Nextel Communications, Inc. (pdf). In Johnson, the Second Circuit allowed clients to sue their own attorney - and even the defendant - for breach of fiduciary duty in entering a settlement agreement. Never certified as a class action, the plaintiff's counsel had reached an aggregate settlement agreement with Nextel for various discrimination claims

As Adam Zimmerman wrote on ADR Prof:

The settlement agreement in Johnson created a dispute resolution process for a large group of clients, represented by the same law firm, who commenced similar employment discrimination claims against Nextel. Among other things, the agreement included tight time frames for claimants to participate and resolve their claims; the agreement even reduced plaintiff counsels’ fee awards, on a sliding scale, when they failed to persuade clients to meet those deadlines or participate in the settlement. By entering into the deal, according to the Second Circuit, the plaintiffs’ former lawyers “violated [their fiduciary] duty to advise and represent each client individually, giving due consideration to differing claims, differing strengths of those claims, and differing interests in one or more proper tribunals in which to assert those claims.” . . . [T]he plaintiffs’ law firm also agreed to take on a multi-million dollar consulting agreement with defendants after all the individual claims finally settled

Mass Torts Profs and ADR Prof both have coverage.


October 10, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Saturday, September 3, 2011

Class Actions in Mexico

WSJ Law Blog recently posted on Mexico's adoption of class actions.  The new Mexican law includes a loser-pays provision.  The details are here

Thanks to Mark Behrens for the tip.


September 3, 2011 in Legislation, Reforms, & Political News, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, August 1, 2011

Yaz MDL Case Management Order

Mass Tort Defense notes that the New Jersey state court has issued its case management order for the first bell wether trials in the Yaz MDL.


August 1, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 5, 2011

"Friend Finder" Class Action Dismissed

The Recorder (via reports that Judge Richard Seeborg has dismissed the "Friend Finder" class action against Facebook for lack of injury. 

Thanks to Lisa Smith-Butler for the news item.



July 5, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 17, 2011

Class Certification Denied in YAZ MDL

Sean Wajert at Mass Tort Defense has the full story.


May 17, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Thursday, May 12, 2011

Pella Class Action Certified

A federal appellate panel in Chicago has upheld the certification of a class action against Pella, a manufacturer of windows, based on allegations of a design defect leading to rotting wood around the windows.  One of the issues was how to handle consumers who have not yet suffered economic loss.  The plaintiffs' counsel:

came up with a novel solution that persuaded U.S. District Judge James Zagel. He separated the window buyers into two classes: Consumers ...who have suffered economic loss, and a larger, nationwide group of those who haven't. But instead of seeking compensation for the latter class, he asked the judge to void Pella's 10-year warranty, pay for window inspections and other "declaratory" relief. The latter class would be allowed to file individual claims with Pella once rot was detected.

Consumer class actions are typically not in our wheelhouse, but the Chicago Tribune article quotes Sheila:

"This is an interesting twist in consumer fraud cases," said Sheila Scheuerman, an associate law professor at the Charleston School of Law who specializes in class actions. "Courts have been fairly hostile to classes where there are no injuries. But litigation always evolves to adapt to restrictions."

Full coverage from the Tribune is available here.


May 12, 2011 in Damages, MDLs and Class Actions | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 26, 2011

DePuy Hip Replacement Suits Centralized in New Jersey

Stopping short of declaring the DePuy hip replacement litigation a "mass tort," the New Jersey Supreme Court ordered (pdf) centralized management with all DePuy hip litigation cases assigned to Judge Brian R. Martinotti in the Superior Court of Bergen County.  Apart from the New Jersey state claims, a federal MDL is pending in Ohio for DePuy hip litigation.

About Lawsuits has more.


April 26, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 19, 2011

Louisiana Parish Files Suit Against BP

Terrebonne Parrish, located on the Gulf Coast in Louisiana, is filing suit against BP and other companies for damages related to the Deepwater Horizon spill.   The suit is being financed on a contingency fee basis. 

The Tri-Parish Times has more.


April 19, 2011 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 12, 2011

West Virginia Jury Rejects Medical Monitoring Claims

After a two week trial, a West Virginia jury returned a defense verdict in favor of Massey Energy Co. in a class action for medical monitoring based on the plaintiffs' alleged exposure to toxic coal dust. 

Mass Tort Defense has the details.


April 12, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 4, 2011

Katrina Limited Fund Class Settlement Rejected by 5th Circuit

This missed by radar, and I'm glad the Drug & Device guys were on top of things (as usual).   The Fifth Circuit (pdf) has rejected a proposed limited fund class settlement in a piece of the Katrina related litigation.   The fund was composed of the defendants' $21 million insurance policies, and as D&D puts it, included a "grab bag of various and sundry injuries."   D&D has a full analysis of the opinion.

- SBS  

January 4, 2011 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, January 3, 2011

Welding Rod Litigation Update

Sean Wajert at Mass Tort Defense provides a concise update on the status of the welding rod litigation MDL, in which plaintiffs allege that fumes from manganese welding rods caused various injuries.   Wajert also reports on a recent case by the Mississippi Supreme Court overturning a plaintiff's verdict in a welding rod case based on the statute of limitations.


January 3, 2011 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 12, 2010

Plaintiffs' Steering Committee Appointed in BP Oil Spill Litigation; Professor McGovern Appointed Special Master

Judge Barbier has appointed fifteen lawyers to the plaintiffs' steering committee ("PSC") in In re Oil Spill:  Brian H. Barr, Jeffrey A. Breit, Elizabeth J. Cabraser, Philip F. Cossich, Jr., Robert T. Cunningham, Alphonso Michael Espy, Calvin C. Fayard, Jr., Robin L. Greenwald, Ervin A. Gonzalez, Rhon E. Jones, Matthew E. Lundy, Michael C. Palmintier, Paul M. Sterbcow, Scott Summy, and Mikal C. Watts.  In addition, four lawyers were appointed to the Plaintiffs' Executive Committee:  James Roy and Russ Herman, Brian Barr and Scott Summy.   Fox 10 News lists the lawyer's office affiliations.

Interestingly, of the seventeen lawyers, only two - Cabraser and Watts - were noted on Mark Behren's Top Plaintiffs' Lawyers List.  

As is typical, the Judge's order provides no reason for his selection of these seventeen lawyers from the 112 applicants.  And, as is also typical, the Judge's order vests the PSC with complete control over the course of the litigation.   According to the Judge's order, the PSC will conduct all pretrial discovery, appear as counsel at all pretrial hearings, submit and oppose all motions, and explore settlement, among other things.   

Finally, following up on last week's note in the Roundup, Judge Barbier did, in fact, appoint Professor McGovern as a special master in the MDL.


October 12, 2010 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 5, 2010

Toyota Files Motions to Dismiss

Toyota has moved to dismiss the personal injury, wrongful death, and economic damages claims filed against it based on the alleged "sudden acceleration" problem.  A hearing has been set for November 19th.  The National Law Journal (via has more.


October 5, 2010 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Monday, August 23, 2010

BP Spill Fund vs. 9/11 Fund

An article in Saturday's NY Timescompares the work ahead of Ken Feinberg with the BP Oil Fund, with his prior work on the 9/11 Fund.


August 23, 2010 in Current Affairs, Damages, MDLs and Class Actions, Products Liability | Permalink | Comments (1) | TrackBack (0)

Monday, May 17, 2010

Joint Preliminary Report Filed in Toyota MDL

The parties have filed their preliminary report in the Toyota MDL.    A copy of the report is available at Mass Tort Defense.


May 17, 2010 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 13, 2010

Toyota MDL Established in California

Robin Effron at Civ Pro Profs has the details.


April 13, 2010 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 16, 2010

9/11 Responders Suit Settles; Fairness Hearing Scheduled

The New York Daily News reports on the $575 million settlement reached in the 9/11 "first responders" lawsuits.  As the Daily News reports, Judge Hellerstein has delayed his approval and instead is "taking a week to figure out how big a cut the lawyers will get."   Judge Hellerstein has also scheduled a fairness hearing for April 12th.

Point of Law and Mass Torts Profs each have more on these developments.


March 16, 2010 in Current Affairs, MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Burch on Procedural Adequacy

Elizabeth Chamblee Burch (FSU/Mass Tort Profs) has posted to SSRN Procedural Adequacy.  The abstract provides:

This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” principle as our yardstick for adequate representation is alluring - it removes motivations and morality from the equation and avoids the stickiness that those calculations entail. Plus, Professor Tidmarsh’s careful treatment of the philosophical and economic arguments underlying the joinder rules make a compelling argument for the change. My concern, however, is two-fold: (1) tailoring adequacy to egocentric behavior by providing a floor to minimally acceptable conduct creates a troubling anchor that is at odds with agency and ethical principles and (2) this proposed change, particularly as it tolerates collusion and unequal treatment among class members, may adversely impact perceptions of procedural justice and class action legitimacy.


February 10, 2010 in MDLs and Class Actions, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, December 14, 2009

Chinese Drywall Class Action Filed

From About Lawsuits:

About 2,100 people joined in a class action lawsuit for Chinese drywall homeowners filed in Louisiana, alleging that their homes were built with toxic wallboard manufactured by Knauf Plasterboard Tainjin Co. Ltd. (KPT).

The drywall lawsuit was filed Wednesday in the U.S. District Court for the Eastern District of Louisiana in New Orleans. The complaint was filed as part of an agreement where the Chinese company agreed to temporarily waive its rights to have lawsuits served through the Hague Convention for plaintiffs who joined the omnibus class action suit against the company by December 9.


December 14, 2009 in MDLs and Class Actions | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 11, 2009

Toyota Sued Over Alleged "Sudden Acceleration" Problem

Two L.A. residents have sued Toyota Motor Corp., alleging some Toyota and Lexus products manufactured since 2001 have been made with defective components causing sudden, unexpected acceleration.  They are seeking class-action status.  Toyota has focused on floor mats as the cause of the problem.  However, last week the National Highway Traffic Safety Administration (NHTSA) criticized Toyota for releasing misleading information about the floor-mat investigation.  The Orange County Register has the story about the suit and the NHTSA statement.


November 11, 2009 in Current Affairs, MDLs and Class Actions, Products Liability | Permalink | Comments (0) | TrackBack (0)