May 16, 2007

As Ted noted in February, Beck and Herrmann have been tracking in detail proposals from the American Law Institute for a Restatement of "Principles of the Law of Aggregate Litigation". The ALI has revised its draft proposal, with results that our authors characterize as "three steps forward, two steps back". They include much cogent supporting detail, including a mini-history of the high toll exacted by aggregation in the Agent Orange litigation. Separately, they chide the Ford Motor Company for embracing (in a case called Kelly v. Ford) a theory of aggregation that advances the company's litigation interests over the short term (by getting Michigan law applied to knock out punitive damages claims nationwide) but in so doing (they argue) provides plaintiff's counsel with a logic that could cost Ford and other defendants billions in other cases to come.