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I’m pleased to announce that I’ll be chairing the Fourth Annual ABA Regional CLE Program on Class Actions and Mass Torts, to be held on June 16, 2017 at the offices of the Bar Association of San Francisco.  This year’s program features four presentations on hot topics in class action and mass tort litigation from an expert group of practitioners, academics, in-house counsel, and judges.  See below for summaries of the four presentations, and click the link below to see the full brochure and to register.  Hope to see you there!

CLICK HERE TO REGISTER

Discovery Following the 2015 Federal Rules Amendments: What Does Proportionality Mean in the Class Action and Mass Tort Contexts?

It’s been about a year and a half since the amended Federal Rules of Civil Procedure went into effect, including amendments relating to proportionality governing both the scope discovery under Rule 26(b)(1) and preservation of potentially relevant ESI. But have the new rules changed the discovery available and relative obligations in class actions, mass torts, and other complex matters? This panel will review the purposes underlying the 2015 Amendments and how the law has been developing so far, and it will offer insights into best practices in expanding or limiting discovery in the class action and mass tort contexts.

Killer Class Actions or Endangered Species?

The United States Supreme Court has in recent years addressed an unprecedented number of issues related to class actions, ranging from “no injury” class actions to “trial by formula.” The panel of experienced class action practitioners will discuss the changing class action landscape and the potential lasting impact.

The Use of Expert Evidence in Class Actions: Effective Strategies and Pitfalls

The importance of expert testimony in class actions continues to increase, for example in connection with measuring class wide effects and satisfying class certification gate-keeping threshold questions. Topics to be discussed include 1) use of surveys in consumer class actions, when they are effective and how they can influence a case; 2) what can be learned from rare successful challenges about the utility of Daubert challenges in class action cases; 3) the challenges associated with the increasing technical requirements for class certification and implications of the importance of expert evidence on cases; 4) lessons learned and experience working with experts in class action matters.

Big Brother, Information Privacy, and Class Actions: How Big Data and Social Media are Changing the Class Action Landscape

Almost everyone has a smart phone these days, even your grandparents have social media accounts, and the amount of personal information that is generated about the average consumer on a daily basis is astronomical and growing exponentially. This panel will explore ways in which the emergence of big data and social media are impacting consumer class actions. Topics to be discussed include 1) consumer class actions that may arise from companies’ collection, use, or transfer of large amounts of consumer data; 2) changing attitudes on privacy of consumer data in the age of social media; and 3) the benefits and pitfalls of using social media and internet advertising in class action notice programs.

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I’m pleased to announce that I’ll be co-chairing an ABA Regional CLE conference on June 19 in San Francisco. The program is being organized jointly by the Class Actions and Derivative Suits, Mass Torts, and Consumer Litigation Committees of the ABA’s litigation section. We’ve put together some top-notch panels on some very timely topics and we hope to see you there. See below for a program synopsis.  Click here for more information and to register.

This half-day CLE event will explore selected key issues in consumer class action and mass tort litigation and the roles played by claimants, defendants, other stakeholders, and decision makers in bringing and resolving class actions and mass disputes. Our all-star panels will cover a variety of topics, all focused around this common theme, including legal ethics, data privacy, and cutting-edge case management and dispute resolution procedures. This program is a can’t-miss event for lawyers, judges, policymakers, and academics alike.

Location:
University of San Francisco Law School
2130 Fulton Street
San Francisco, CA 94117

Event Date & Time
June 19, 2014
12 p.m.–7 p.m.

Registration Fee
Section of Litigation Members and Government Attorneys: $125
Non-Section Member: $185

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For those of you interested in the topic of statistics in mass and class actions, U. Conn. Law Professor and Mass Tort Litigation Blog contributor Alexandra D. Lahav has written an academic paper on the subject in the Texas Law Review, aptly entitled The Case for “Trial by Formula.”  For Professor Lahav’s synopsis of the paper, a link to the paper, and a brief response to last week’s CAB post on the subject, see this Mass Tort Litigation Blog post.

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In December, I posted this preview of the then forthcoming book, Drug and Device Product Liability Litigation Strategy, by Mark Herrmann and David B. Alden (Oxford University Press 2011).  I received my copy of the book just before the holidays, and it is as good as advertised. 

The book has many strengths.  It is comprehensive, generally accessible, eloquently written, and well-researched.  Perhaps its greatest accomplishment is the breadth of its usefulness to a wide range of readers with varying levels of sophistication.  The book starts at the beginning, with a discussion of the history of mass tort litigation and a summary of the relevant FDA regulations.  Following a discussion of each of the typical causes of action in drug and device cases, the book goes on to cover every conceivable procedural phase, from MDL assignment, to motions practice, to discovery, and finally through the rarest of events in mass tort litigation: trial.  The step-by-step approach makes the book a perfect starting point for a new associate, client, or colleague who is just becoming familiar with medical products litigation.  But packed in to the logically organized chapters are a wealth of practice tips and research summaries that make the book a handy practice aid to even the most seasoned practitioner. 

The book’s authors admit (and make no apologies for the fact) that it has a defense-oriented slant, and it’s main audience would certainly be defense-oriented practitioners and corporate legal departments, but that does not mean that it would not be a useful guide to plaintiffs in pharmaceutical or other mass tort litigation. 

In short, this book is a welcome addition to my personal law library.  Now, my problem is figuring out how to protect it from being permanently “borrowed” from one of my colleagues.

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This is the sixth and final installment of a multi-part post summarizing last week’s 5th Annual Conference on the Globalization of Class Actions and Mass Litigation.  Click these links to see the summaries for Session 1, Session 2, Session 3, Session 4, and Session 5.

Paths to (Mass) Justice

To wrap up the conference, Dr. Sam Muller, Director, Hague Institute for the Internationalization of Law, led an all-star panel of academics, lawyers, and industry executives in a discussion about where we are heading over the next five years in global class, collective, and mass litigation.  The panel included program co-organizer Professor Deborah Hensler, international plaintiffs’ lawyer extraordinaire Michael Hausfeld (who more than ably filled in for Professor Hodges), Mr. Robert W. Hammesfahr, Managing Director Claims & Liabilities, Swiss Reinsurance Company Ltd., Mr. Richard Murray, The Geneva Association, Special Advisor on Liability and Legal Affairs and Liability Dynamics Consulting LLC, Mr. Daniel Girard, Partner Girard Gibbs LLP, and Mr. Martijn van Maanen, Partner BarentsKrans.

This is the only presentation not framed by a particular case study.  However, the panel did focus on a common question, what are we likely to be discussing at the 10th annual conference on the globalization of class actions?

Dr. Muller began the discussion with some general themes and questions that both summed up the conference generally and framed the last panel’s discussion.  They included:

  • Whether the internationalization of class action law will continue;
  • Whether we will see an increasing divide between public and private mechanisms for the enforcement of collective interests;
  • What will be the impact of social media and changes in mass communication?
  • Is globalization and the development of systems of collective redress driving changes to the legal profession or the legal profession driving changes to mechanisms for collective redress?

Pointing to the example of the development of competition law in the EU, Hausfeld remarked that changes in policy are happening on their own but that they are not happening quickly.  He argued that it is up to the legal profession to change policy through practice; in other words, through litigation brought by counsel and through court decisions.  Hausfeld also made a key observation based on a recurring theme throughout the conference: the engine of change in the development of private enforcement mechanisms is, at least in the near future, likely to come from large corporations and institutional investors, rather than from consumers or popular political pressure.

Hensler predicted that the future will be more of the same.  The development of collective enforcement mechanisms will not go away because the scale of commerce drives the scale of mass harms, and globalization is increasing the scale of commerce.  Moreover, citizens are more likely than ever to want redress for injuries.  In modern societies, people are no longer willing to blame God for their misfortunes.  Hensler predicted that the transformation into a truly international system of collective redress will take 25 years, not 5 years.

 Hammesfahr was optimistic about change.  He noted that “where there’s a vacuum, the law will fill it,” and that therefore, the growing need for systems of collective redress will require reforms in even those countries that are most politically resistant to change.  There has to be a remedy for harms, and the younger generation will not accept delays in avenues to redress in the same way as previous generations.  However, he also predicted that Europe will find its own solutions for the problem of mass harm without copying the U.S. model of class actions. 

Murray observed that what was discussed in the 2011 conference as being a practical reality was foreseen during the first global class actions conference in 2007, but was still being debated.  For example, 5 years ago in Europe, people were saying that “we don’t do that here,” but now, Europe has begun to recognize the need for private enforcement mechanisms for collective harms.  Murray made a variety of other observations and predictions, including

  • There has been a significant growth in the scale and economic consequences in things that require aggregation.
  • There has been a change in the nature of litigation globally.  It used to be unique, to be avoided.  In the past few years, we have become compensation driven rather than fault driven. 
  • In the future, litigation will be investment driven rather than party driven, and there will be a transformation of litigation funding to litigation ownership.  Litigation will become an investment of choice.
  • There will be more climate change and catastrophe-related litigation in the coming years.  There will be a convergence of liability and reparations processes, a socialization of the humanitarian loss compensation system.  This will be driven by huge need for redress, combined with someone to blame for mass harm.

Girard was more pessimistic about significant developments in global collective redress, based in large part on events in the United States over the past several years.  

He divided aggregated litigation into 2 types of cases:

  1. “Train wrecks” – cases with a very high public profile, and a clear sense of public injustice.  This, he said, “is good work if you can get it.” 
  2. Private regulatory actions – i.e., mass lawsuits based on a private right of action that challenge conduct not widely recognized as being wrong.  This category would include many current class actions in the United States, such as those involving alleged deceptive trade practices and dangerous products.

While policymakers will almost certainly agree on the need for collective redress in the first category of cases, the second category is quite a bit more challenging, and there is a greater potential for abuse.  The resolution of cases in category 2 is quite a bit different than the deal brokering that goes on in category 1.

Girard pointed out how the recent trend in the United States has been to restrict class actions.  But, he went on, plaintiffs’ lawyers are nothing if not creative and persistent.  In the end, he predicted that we will see things swing back into an equilibrium, since “the law will tend toward justice.”  However, he admitted that we may have seen the end of the fully empowered private attorney general in the United States.

Girard concluded with a word of wisdom for policymakers in Europe.  As you are being urged toward a system like the American system, he said, keep in mind that lighter regulatory framework was intended to come with it a strong right of private enforcement.

Van Maanen was much more positive about change.  Using competition law as an example, he said that in the past, the it was economical for defendants to form cartels.  Now, however, corporations are taking on the role of ally with plaintiffs.  This will drive a push toward private enforcement in Europe.  He noted that there is some level of competition between European countries in the development of systems of collective redress.  For example, he observed that with its resistance to collective action legislation, the UK has fallen behind the Netherlands in recent years.  He concluded with the observation that a challenge for policymakers will be in developing a system that will make it more profitable for corporations to comply with the law.

In the Q&A session, the panelists were asked whether we are moving toward coordination or competition between jurisdictions, and if so, are we going to a race to the bottom or a race to the top?  In Hensler’s opinion, we are in a period of competition.  In the short term, there is an incentive to maintain a system of multiple forum choices.  Murray agreed, and commented that “we will do the right thing after we try everything else.” Girard returned to the theme that the United States is a microcosm of the world.  He pointed to example of the so-called reverse auction process discussed by Judge Vaughan Walker earlier in the conference and pointed out how competition helped to reduce attorney’s fee abuse.

Other topics addressed in the Q&A included the role of social justice.  Hensler commented that social media will have an effect on litigation, as it did during the recent Arab Spring movement.  Hammesfahr discussed the potential impact of social justice movements with respect to catastrophic events claims.  He observed that if the civil justice lawyers are going to have a role, they will have to look at transaction costs and efficiencies.

A final, and perhaps fitting, point (unfortunately, I did not note which panelist made it) had to do with the different way that European law is developing in comparison to the system of class actions in the United States.  In Europe, the prevailing view has been to consider anything but the “American horror story.”  In developing systems of collective redress, European systems haven’t built on the U.S. system, they’ve rejected it, but they are working toward a completely different system intended to solve some of the same problems.

In closing out this series of posts, I want to reiterate how impressed I was with both the content and organization of the conference.  The organizers say that they are uncertain whether this will continue to be an annual event going forward, but I hope that the demand will convince them otherwise.

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This is the fourth in a multi-part post summarizing last week’s 5th Annual Conference on the Globalization of Class Actions and Mass Litigation.  Click these links to see the summaries for Session 1, Session 2, and Session 3

Giving Away Money: Calculating Damages & Allocating Damages

Professor Francis McGovern, Duke University Law School chaired this panel of authorities on the management of compensation funds.  A pioneer in the development of mass compensation programs, Professor McGovern has assisted with the administration of similar mass tort settlements in the United States, as well as reparations involving international disputes, such as the United Nations Compensation Commission, through which he is currently assisting in developing a framework for handling approximately 2.6 million reparations claims against Iraq.

Professor Jasminka Kalajdzic, University of Windsor, Canada, presented the case study and offered her insights into practical aspects of the case study.   The case study focused on a $1.9 billion fund for victims of abuse within the notorious Canadian Indian Residential Schools (IRS) program, in which aboriginal children were forced to attend Christian schools in an effort to force assimilation into white culture.  The purposes of the program had been described as “killing the Indian in the child” and turning native populations into English-speaking farmers and Christians.  The children were forced to attend the schools were subjected to harsh corporal punishment, psychological, physical, and sexual abuse.  By the early 2000s more than 50,000 individual claims and a number of class actions had been filed by victims of the IRS programs.  In 2005, following an alternative dispute resolution process, the Canadian government set up a $1.9 billion fund to compensate victims.  Compensation schedules established monetary award amounts based on a variety of factors, such as the amount of time spent in the schools, and the number of specific instances and types of abuse that a claimant had been subjected to.

Each of the panelists had been responsible for administering compensation funds, but the funds themselves had a variety of sources and purposes.

Dr. Norbert Wühler, Director of Reparations Programmes, International Organization for Migration, directs international claims facilities that provide reparations or other compensation arising out of international conflicts.  They include the Iranian Claims Tribunal, which provides compensation to U.S. citizens and companies who were harmed or displaced from Iran following the revolution of the late 1970s, and a program to compensate victims of Iraq’s invasion of Kuwait in the early 1990s.

Mr. Pieter van Regteren Altena, Partner, Van Doorne NV, administered the DES fund in the Netherlands, a fund established as a result of a mass tort settlement of claims against the pharmaceutical companies who manufactured DES, a synthetic hormone given to pregnant women prior to the late 1970s.  A collective settlement of DES claims was approved in 2006, resulting in the establishment of a 38 million Euro fund for the benefit of people who suffered adverse consequences from the use of DES, such as infertility, cancer, and birth defects.

The final panelist, and also the Keynote Speaker at the dinner held later that evening, was Kenneth Feinberg, who has been charged with administering some of the most high-profile compensation funds in history.  They include the September 11 Victim Compensation Fund established by Congress in 2001, the Gulf Coast Claims Facility established by BP following the 2010 Gulf of Mexico oil spill, and a settlement fund arising out of claims by victims of the use of the compound Agent Orange during the Vietnam war.

Professor McGovern opened the discussion with the observation that what all of the panelists had attempted to do in administering monetary funds was “rough justice.”  He then led a discussion on the similarities and differences between different compensation programs and the various issues and themes that can arise in the process of administering compensation funds.

Several of the obvious ways that compensation programs can differ are the source of the assets to be distributed and the sources of authority for the distribution and management of the compensation fund.  In a mass tort case, such as the DES case in the Netherlands or the Agent Orange case in the United States, the source of funding is a corporate defendant, but the source of authority for the settlement is a court.  In many international disputes, the source of authority can be an international tribunal, the United Nations, or a treaty among nations, and the source of funding can differ significantly from case to case.  For example, in the Iranian Claims Tribunal, the source of funding was frozen Iranian assets from outside Iran.  In the case of the fund established for victims of the Iraqi invasion of Kuwait, the funds came out of a percentage of oil sales that were permitted as an exception to a trade embargo.  Other funds have had sources of authority and funding that are unlikely to be repeated again in the future, including the 9/11 fund, which was established and funded by Congress only weeks after the terrorist attacks occurred, and the Gulf Coast Claims Facility, which was established and funded voluntarily by BP following what was essentially a handshake agreement with President Obama.

The structure of a compensation program is dependent on a number of factors.  Feinberg and Wühler both made the point that the volume of claims has a large impact on the structure of the compensation scheme.  In the Iranian Claims Tribunal, there were only 2700 claims, so individual claims could be handled more like a commercial arbitration, whereas with the reparations from the Iraqi invasion of Kuwait, there were many more claims, so the structure had to have a very different composition.  In the case of the 9/11 Victims’ Compensation Fund, the task of determining individual recoveries was handled mainly by accountants, whereas in the case of BP, distribution of benefits also required the work of claims adjusters.

Organizational systems for compensation funds are also influenced by other factors.  The need to prove causation is a factor.  For example, in the DES case, one of the main issues in determining who should receive compensation was the causal link between the drug and adverse health consequences suffered by the individual.  There, van Regteren Altena explained, the fund administrators fell back to the law of evidence, and an individual assessment procedure was implemented.  By contrast, Feinberg explained that in the Gulf Coast Claims fund, the level of evidence needed to prove an adverse impact resulting from the oil spill differed depending on how far removed the claimant was located geographically from the site of the spill.

The issue of causation highlights a common difficulty in administering settlement programs.  That is, the problem of efficiently distributing the funds while maintaining a sense of fairness and proportionality among individual claimants.  As Feinberg pointed out, although the goal of the program may be “rough justice,” there is a big tension between rough justice and individual compensation in any settlement program.  Success in a compensation program requires the administrator to walk a fine line between the efficient and speedy distribution of limited resources and paying enough attention to individual claims so that the claimants as a whole perceive the settlement as fair.  To achieve this goal, allowing claimants an opportunity to be heard makes an enormous difference.  Many of the structures described by the panelists had multiple levels of individual assessment.  For example, in the IRS settlement, claimants were paid according to a schedule but also had the opportunity to request an individual hearing.  Many mass tort settlements, such as the DES settlement, allow individual members to opt out and pursue their own claims individually.  Where individual hearings are impractical due to the number of claims, providing claimants with different options can help resolve the tension.

As a final thought, I would add a personal note that although many of the programs discussed during the presentation involved unique situations that most of us as practitioners are never likely to encounter, the themes and concepts discussed by the panelists are likely to be applicable in fashioning a wide variety of class action and mass tort settlements.  I have been involved with several not-so-high profile class action settlements that involve many of the issues and tensions discussed during the program.  So, as a practitioner, a key question from the Q&A portion of the program that piqued my interested was whether there are any resources or guides available to assist with the development or implementation of compensation funds.  Several of the panelists pointed to a comprehensive guide published by the Center for Public Resources, the Master Guide to Mass Claims Resolution Facilities.

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Ok, just a bit further…

Mark Herrmann, former contributor to the wildly successful Drug and Device Law Blog, sent me a note the other day that his book co-authored with Jones Day Partner David B. Alden entitled Drug and Device Product Liability Litigation Strategy (Oxford Univ. Press 2011) is now available.  Here is a link to the book’s page on OUP’s website, where you can get more information and order a copy.

The following is a slightly edited version of the summary that he sent me:

The book is generally a reference work, so big chunks of the book simply bring a beginner up to speed on the defense of drug and device product liability cases. But we say a few things in the book that are new and different. Some of the interesting stuff includes:

1. At pages 181 to 186, we analyze every motion to centralize drug or device cases filed with the MDL Panel from the Panel’s creation through the end of 2010. We count the number of motions granted and denied, and we break down the percentages by time period, showing that the Panel has become slightly more likely to centralize cases as time has passed.

2. At pages 219 to 222, we analyze the use of “direct filing provisions,” which allow plaintiffs to file their complaints directly in the MDL transferee court, rather than being required to file in their home courts and then asking the MDL Panel to transfer the cases. If litigants are not careful, direct filings provisions can alter the applicable choice-of-law analysis, change the identity of the court that tries the case, or alter the trial court’s personal jurisdiction over third-party defendants.

3. Finally, our discussion of the scope of preemption for prescription drugs after the Supreme Court’s decision in Wyeth v. Levine may be noteworthy. At pages 339 to 343, we identify five situations in which claims against prescription drug manufacturers may be preempted even after the Supreme Court’s restriction of preemption in Levine.

We’d love to start a conversation on these issues. And, if we’ve taken the time to write the book, we’d sure like interested folks to know that the book exists.

I have not had a chance to read it yet, but given Herrmann’s body of work on Drug and Device Law Blog, it is guaranteed to be of the highest quality.  It sounds like the quintessential guide to the very specialized area of mass tort and class action litigation, authored by two of the world’s foremost experts on the subject.

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