Results matching “nagareda”

Pigford makes it into the New York Times - PointOfLaw Forum

Years after the late Andrew Breitbart called attention to the multi-billion dollar giveaway of taxpayer money to Friends of Obama under the guise of settling discrimination litigation, the New York Times notices that a political decision to settle meritless litigation that the government was winning in court as if the government had defaulted on all claims has led to an abuse of the Settlement Fund, and a lot of fraudulent claims, with no intent by the government to investigate the theft from taxpayers. (Where are the False Claim Act qui tam suits?) As the late Richard Nagareda and I noted years ago, when you have a mass-tort settlement with no checks for fraud, you will get the Field-of-Dreams problem: "If you build it, they will come," and the claims process will be overrun by fraud. But, as Paul Horwitz notes, the legal academy utterly ignored this aspect of the Pigford litigation.

One settlement of $700 million only presented $300 million of claims (itself a likely exaggerated figure), leaving a $400 million slush fund for the attorneys (Cohen Millstein) for "cy pres," again with apparently no oversight. Will anyone be checking to determine if the money is actually going to its intended purposes instead of to something affiliated with the attorneys?

More: Walter Olson; Daniel Foster; earlier on POL.

The story focuses on Department of Agriculture settlements, and thus omits the equally problematic Cobell v. Salazar settlement. There, the government had essentially won the litigation, getting the D.C. Circuit to throw out a judgment of $455 million. Yet, once Obama took office, the case settled for $3.4 billion—including $1800 a pop for hundreds of thousands of class members with absolutely no damages because they correctly had only pennies in their trust accounts. As you recall, I filed an objection on behalf of a class member who complained that class members with actual damages were being shortchanged by the settlement because of the arbitrary payments to the uninjured class members. Yet, though the D.C. Circuit had earlier held that such a distribution "would be inaccurate and unfair to an unknown number of individual trust beneficiaries," it affirmed approval of a settlement with the exact same "inaccurate and unfair" distribution. That taxpayers ended up on the hook for $3 billion more than the D.C. Circuit had already held was unreasonable has gone entirely unreported upon.

Even more remarkable is the fact that the plaintiffs used the D.C. Circuit briefing to admit that they had lied before Congress about their case. James Otis Kennerly, served as the poster child for the class because he had allegedly been cheated out of millions of dollars by poor trust accounting relating to an oil well on his land; lead plaintiff Elouise Cobell testified before Congress about that story as late as 2007. In arguing for rejection of the settlement, we noted that Kennerly was going to get the same $1800 as class members entitled to nothing. In response, plaintiffs argued that Kennerly's case couldn't be used to prove the settlement unfair because Kennerly wasn't actually entitled to anything either, because evidence the government presented years before Cobell's testimony to Congress showed that Kennerly never had a legitimate claim to the oil well. (Mother Jones hasn't run a correction to its story, and a documentary about Cobell is apparently planning to retell the bogus version of the Kennerly account; if you google Kennerly, you will find no indication from anyone other than me that plaintiffs have made this admission.) Again, no consequences: Cobell was awarded $2 million, and her heirs are asking for another $11 million as an "incentive" for her success in this case.

Frank v. Fitzpatrick: I get to say "told you so!" - PointOfLaw Forum

You may recall that Brian Fitzpatrick had argued that AT&T Mobility v. Concepcion augured the death of class actions, and I disagreed. (Our October 26 Federalist Society debate, where I noted that Concepcion was predicated on the unique features of the Nagareda-designed arbitration clause, does not seem to be online.)

Wednesday, the Second Circuit, in a 2-0 decision (the case was so old that Justice Sotomayor was on the panel that heard oral argument), held that Concepcion did not require them to enforce Amex's arbitration agreement with its merchants given that agreement's class action waiver, because the underlying dispute was a matter of federal antitrust law, which, the court held, would be impossible to vindicate on an individual basis in this particular instance. The result, the Second Circuit said, was unconscionable. [In re Amex Merchants' Litigation]

Around the web, August 15 - PointOfLaw Forum

  • You probably heard that the Eleventh Circuit overturned part of PPACA. The nifty aspect of that is that, because the PPACA challengers lost on the issue of severability, they can appeal directly to the Supreme Court, forcing a cross-appeal to the Supreme Court, and ensuring that the Obama administration can't delay Supreme Court consideration past the 2012 election. The deciding vote was Clinton appointee Frank Hull. [Kerr @ Volokh; Adler @ Volokh; SCOTUSblog; Florida v. HHS; related: Richard Epstein]
  • Trask on Scruggs biography The Fall of the House of Zeus
  • California litigation lobby targets arbitration agreements in AB 1062. [BLD; ACIC]
  • The late Richard Nagareda's influence on Wal-Mart v. Dukes. [Frankel]
  • Olson on age discrimination laws. [Reason]
  • Texas bank focuses on small business loans even as economy hurts from drying up of credit in that area; naturally, federal regulators complain. Bank decides to go Galt to escape regulation and focus on its business absent FDIC insurance. [WSJ]
  • Utah trial court rejects "negligent directions" claim against Google brought by woman who walked into traffic. [Volokh]
  • How riots start, and how they can be stopped. [Glaeser]
  • Who lost the middle class? [City Journal]

Wal-Mart v. Dukes & A.E.P. v. Connecticut - PointOfLaw Forum

In two major decisions today that will interest the readers of this site, the Supreme Court held that the class alleging gender discrimination against Wal-Mart was improperly certified in Wal-Mart v. Dukes and that the EPA's governance of carbon-dioxide regulation under the Clean Air Act displaced the federal common law public nuisance suit brought by various states and municipalities in AEP v. Connecticut. The holding in both cases was unanimous, though not without underlying disagreement. In Dukes, the justices split 5-4 over whether to dismiss the suit outright (the majority decision) or whether to remand for further consideration as a 23(b)(3) class action (Justice Ginsburg's position, joined by Justices Breyer, Kagan, and Sotomayor). In AEP, the justices split 4-4 on whether the plaintiffs had standing to sue (presumably the same split as in Massachusetts v. EPA), and Justice Alito wrote separately, joined by Justice Thomas, to emphasize that his decision rested on the assumption that the Clean Air Act applied to carbon dioxide emissions (the position he rejected in Massachusetts v. EPA) (Justice Sotomayor, who was involved in the suit below, recused).

Those who didn't see our earlier discussion on Dukes, which pulled in various thinkers and practitioners, should check it out now and compare with the actual decision. The Manhattan Institute also wrote a fair amount on the AEP global-warming-as-public-nuisance case in last fall's Trial Lawyers, Inc.: Environment.

Josh Blackman summarizes Dukes here and AEP here. Walter Olson assesses Dukes here. And as Blackman notes, the Dukes decisions, both majority and dissent, are replete with citations to our dear departed friend Richard Nagareda's published writings, both The Preexistence Principle and the Structure of the Class Action, 103 Colum. L. Rev. 149, 176, n. 110 (2003) and Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 131-132 (2009).

"The Market for Specious Claims" - PointOfLaw Forum

S. Todd Brown @ SSRN looks at a problem that has been largely ignored outside of the work of Brickman and Nagareda. Abstract:

Few problems are more disruptive to the efficient operation of comprehensive mass tort settlements than over-subscription, which, at times, appears to be fueled primarily by specious claims. In settlements with opt out rights, a flood of claims can generate a market for lemons, with the weakest claims submitting to the settlement and the strongest opting out and seeking recovery at trial or in private settlement. In binding settlements, they may result in a commons problem, requiring dramatic reductions in payment that effectively transfer recoveries from those with intrinsically strong claims to those with weak claims.

This Article evaluates the history of three mass torts where specious claim practices were uncovered and identifies common themes that reflect broader lessons about the potential for over-subscription. In particular, although commentators often focus on the incentives that drive claim recruiting, this Article explains that over-subscription has its origins in claim development incentives, which may be distorted by fixed settlement criteria and encourage practices that lend themselves to specious claim filings. This dynamic is particularly likely to generate specious claim markets for low or negative expected value claims. Moreover, the manner in which this process unfolds presents special difficulties for ethical enforcement and deterrence, suggesting that other mechanisms for controlling specious claim markets may be necessary.

Around the web, December 9 - PointOfLaw Forum

  • Toyota isn't going to be able to win its sudden acceleration litigation at the motion-to-dismiss phase. [NLJ] This means the case proceeds to tens of millions of dollars worth of discovery as plaintiffs search for documents that they can take out of context to "prove" an otherwise nonexistent problem.
  • Brooklyn lawsuit: because they offer keyless ignition, it's Toyota's fault that 79-year-old plaintiff forgot to turn off his car and died of carbon monoxide poisoning. [NYDN via ABAJ] It's almost as if Toyota should require a surcharge for elderly drivers.
  • It doesn't necessarily mean much legally if a wealthy criminal defendant appeals a criminal conviction—the cost-benefit analysis is to seek every level of appellate review possible—but Conrad Black might have a point in his en banc petition objecting to the Seventh Circuit's "harmless error" analysis. [Bashman link roundup; Earlier at POL] (Update: see now Elwood @ Volokh.)
  • More tapes the Ecuador plaintiffs don't want you to see in the Chevron case. [Am Law Daily]
  • One of the collateral tragedies of Richard Nagareda's death is that he was one of the few law professors willing to take a common-sense stand on Twombly and Iqbal. Compare the nonsense from Arthur Miller.
  • Fisherman on the Gulf Coast are doing pretty well under the BP compensation scheme. [FrumForum]
  • Speaking of the Gulf Coast, the opinion is unpublished, but the Fifth Circuit got around to affirming the rejection of a class certification in Katrina litigation against insurers. [Jackson]
  • A new blog on originalism.
  • It's behind a subscription wall, but the story is titled "Legal Activist Ted Frank Cries Conflict of Interest, Forces O'Melveny and Grant & Eisenhofer to Modify Apple Securities Class Action Deal." [Litigation Daily ($)]

Around the web, October 13 - PointOfLaw Forum

Richard Nagareda - PointOfLaw Forum

I am shocked and saddened at the sudden and untimely death of Vanderbilt Law Professor Richard Nagareda (1963-2010). Professor Nagareda, perhaps the leading scholar on mass torts and aggregate litigation, was a colleague on the Federalist Society Executive Committee; a co-panelist; and well-liked by all who knew him. Professor Nagareda was profilic; we frequently cited to him at Point of Law, including just last week, for his forthcoming paper on Wal-Mart v. Dukes. He was generous enough to contribute a column to Point of Law in 2008 on mass torts. [TortsProf; Vanderbilt]

Update: Drug and Device Law Blog.

Around the web, October 4 - PointOfLaw Forum

Around the web, April 21 - PointOfLaw Forum

  • New critique of proposals for aid-&-abet securities liability [Keane, WLF]
  • "Litigation - Has The Process Become The Purpose?" [Beck et al on Richard Nagareda paper]
  • W.V. justice has strong words on medical monitoring law in duPont case dissent [LNL, more]
  • Review: Robert Williams's The Law of American State Constitutions [Colburn, ConcurOp]
  • "Sue to Ban BPA and Then Sue Because It's Banned. Brilliant!"
    [Carter at ShopFloor, Maryland]
  • Mass toxic tort filed by former residents of now-shuttered L.A. County housing complex [AP]

Nagareda on mass tort settlements and client consent - PointOfLaw Forum

Vanderbilt lawprof Richard Nagareda, guestposting at TortsProf:

...In recent years, a new arrangement has emerged, to the point of spawning what is now an emerging scholarly literature about its operation and legitimacy. The 2007 settlement arrangement used to resolve mass tort litigation over the prescription pain reliever Vioxx exemplifies this new development. The Vioxx deal is striking in that it did not actually resolve a single extant Vioxx claim. The contracting parties were not the defendant manufacturer Merck & Co. and any individual Vioxx plaintiff. Rather, the contracting parties consisted of Merck and the small number of law firms within the mass tort plaintiffs' bar with significant inventories of Vioxx claims. ... For critics, the Vioxx deal exemplifies a deeply troubling trend toward the exalting of closure in mass torts to the detriment of legitimate consent.

The law firms agreed to "recommend" settlement to all their clients and, increasing the pressure, to withdraw representation from holdout clients to the extent permitted by legal ethics. Another step toward recognizing the lawyers as parties in interest to at least as great an extent, if not more so, than their clients?

Nagareda, "Class Certification in the Age of Aggregate Proof" - PointOfLaw Forum

At Legal Workshop, Richard Nagareda (Vanderbilt) has a shorter version of a full-length NYU Law Review piece (PDF) on the procedural history of class certification:

With so much riding on the class certification determination, one would have thought that procedural law would have arrived quickly at a clear and broadly shared understanding of the nature of that determination and the permissible parameters for inquiry by the court. That, however, has not been so. ...

The hard questions surrounding class certification today are--contrary to conventional wisdom--only superficially questions of fact, conflicting evidence, and dueling expert witnesses. Properly understood, aggregate proof frequently offers not so much a contested account of the facts that bear on class certification but, more fundamentally, an implicit demand for a new and often controversial conception of the substantive law that governs the litigation at hand.

Aggregate litigation in Europe - PointOfLaw Forum

A new issue of the Vanderbilt Law Review has two essays by familiar names on the topic: Richard Nagareda, "Aggregate Litigation Across the Atlantic and the Future of American Exceptionalism," and Samuel Issacharoff and Geoffrey Miller, "Will Aggregate Litigation Come To Europe?"

Beisner and Miller on aggregate litigation reform - PointOfLaw Forum

From the Washington Legal Foundation (PDF), and automatically commanding attention around here given the persons involved and the topic:

In this new WLF Monograph, two aggregate litigation experts propose and detail a four-part reform plan to improve how mass tort lawsuits are administered and overseen in the federal multi-district litigation framework. Authors John Beisner and Jessica Miller [O'Melveny & Myers] present a detailed case for their proposal and explain how plaintiffs and defendants will benefit from a system which better ensures that actually injured parties will have their day in court. The Monograph features a foreword by Vanderbilt Law Professor Richard Nagareda, who is deeply involved in the American Law Institute's drafting of a Principles of the Law of Aggregate Litigation.

Press release here, including this very brief summary:

The Monograph proposes four comprehensive, yet basic, procedural reforms that will improve
the multidistrict litigation ("MDL") process for litigating and resolving the mass tort dilemma:

* Expand the diversity jurisdiction of federal courts;
* Adoption of standardized winnowing procedures;
* Eliminate class action tolling of limitation periods: and
* Revise ethical rules to account.


Loser-pays featured in WSJ - PointOfLaw Forum

The paper's Dan Slater has an excellent write-up based on Marie Gryphon's new Manhattan Institute study on loser-pays. Among those commenting are Vanderbilt lawprof Richard Nagareda. And Marie Gryphon has a new op-ed in Investor's Business Daily on the study. (More: WSJ law blog).

In the wake of the September 11 bombings, Congress established a Victims Compensation Fund and limited liability for a number of deep-pockets who were also victimized by the attacks. A number of academics questioned that it was even conceivable that innocent third parties could be held liable for a terrorist attack. Anthony J. Sebok, What's Law Got to Do With It? Designing Compensation Schemes in the Shadow of the Tort System, 53 DEPAUL L. REV. 901, 917 (2003); RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT 104 (2007); Peter Schuck, Special Dispensation, AM. LAWYER (June 2004); see also LLOYD DIXON AND RACHEL KAGANOFF STERN, COMPENSATION FOR LOSSES FROM THE 9/11 ATTACKS (RAND Institute for Civil Justice 2004).

Overlawyered readers knew better, because they had seen the Port Authority get socked with a $1.8 billion verdict (Oct. 27, 2005; Oct. 29, 2005; Nov. 2, 2005) after being held 68% responsible for the deliberate bombing of the World Trade Center by terrorists in 1993. The Port Authority appealed the absurd ruling, but the Appellate Division has affirmed unanimously (via) since, after all, such absurdities are central to the modern tort regime and thus not "legal error" to abandon the centuries-old concept of intervening causation. As I noted in a related Wall Street Journal editorial, contingent-fee attorneys' incentives are not to seek out the truth behind wrongdoing, but to construct a narrative that will hold the deepest pocket the most responsible, regardless of the effect on justice. This distortion has worked its way into popular culture; a survey of family members of September 11 decedents found that the median respondent held the terrorists only 30% responsible for losses. Gillian Hadfield, Framing the Choice between Cash and the Courthouse: Experiences with the 9/11 Victim Compensation Fund, 42 L. & SOC. R. __ (forthcoming 2008). See also my House testimony on the expansion of the 9/11 Fund.

In the blogosphere: Mass Tort Prof; Entrekin.

Cardozo conference on class actions - PointOfLaw Forum

This Friday, in New York City, Cardozo Law is hosting a conference entitled "Justice and the Role of Class Actions" with an announced focus on "the historic value of class actions, their contemporary application, as well as the threats and opportunities facing the class action system today and in the future." Its sponsors are the liberal American Constitution Society and Public Justice (formerly Trial Lawyers for Public Justice), but the program commendably includes a variety of points of view, including John Beisner, Richard Nagareda, Deborah Hensler, Elizabeth Cabraser, Victor Schwartz, and Geoffrey Miller, among many others.

Florida attorneys ask to expand Vioxx settlement - PointOfLaw Forum

It is a good sign for whether the 85% thresholds will be met that a group of Florida attorneys has, reports the AP, filed a motion begging to permit their clients to join the settlement, even though they are ineligible because they did not have pending litigation at the time of settlement. (Florida's statute of limitations has not yet expired.) In the words of the motion (docket #13286):

Prof. Richard Nagareda of Vanderbilt Law has made a big splash with his new volume Mass Torts in a World of Settlement, which argues that the fair and socially efficient resolution of mass injury cases is going to require revising cherished old notions of individualized treatment and client control in litigation. In our newest featured column, a piece written for this site, Prof. Nagareda concisely explains why he thinks it's time for new rules.

The Public and Private Faces of Peace for Mass Torts - PointOfLaw Columns

By Richard A. Nagareda

Tort law is traditionally labeled a species of "private" law, a sibling of such things as the law governing contracts and corporations. To be sure, much of tort law, such as the everyday automobile accident case, retains much of this private dimension in practice. Mass torts diverge from this familiar pattern, however. In a new book, Mass Torts in a World of Settlement (University of Chicago Press), I trace how mass tort litigation has given rise to an uneasy combination of private and public institutions; and I discuss what the law should do about it.

The evolved response of the civil justice system to mass torts has been to shift from litigation on the private-law model of tort law to something much more like public administration. Simply put, the endgame of mass tort litigation today is not trial but some form of comprehensive settlement—what lawyers on both sides describe, with only a smidgen of exaggeration, as "global peace." Whatever the vehicle chosen, the peace terms are broadly similar. Instead of continued costly litigation, peace in the mass tort world substitutes a miniaturized, privatized version of workers' compensation for the affected claimants. Debates over matters of pretrial procedure—say, over whether a class action will be certified or whether the plaintiffs' expert scientific evidence will be deemed admissible—comprise crucial sparring points, precisely because they affect dramatically the ultimate price of peace. The interesting questions for the law are: Who are the peacemakers, and what means may they wield to make peace?

The peacemakers here consist of private lawyers—in practice, an elite segment of well-capitalized plaintiffs' lawyers with nationwide practices and an equally elite segment of the "big firm" defense bar. No one seriously believes that Congress can or should step in to set the peace terms for every mass tort of the future. Peace for mass torts thus necessarily means relying primarily on private lawyers as peacemakers.

This is not an ignoble or unimportant enterprise for the private bar. Structuring the kinds of business transactions to make peace in mass torts—and transactions they most certainly are—involves just as much savvy and creativity as the most complex corporate mergers. And the transactional dimension of peace here has the potential to advance the same social objective: to create wealth by bringing into being resources that would not otherwise exist through the reduction of litigation uncertainty. This is why the means chosen for peace take on such critical importance. Only by offering closure—only by exercising a considerable measure of coercive authority—can the dealmakers unlock the value-creating potential of peace. Yet the need for coercion is also what nudges private dealmaking into a matter of public concern.

Since the Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor, the law has witnessed a halting search for some legitimate means to make peace in mass tort litigation. The means employed have ranged broadly, from the poles of private contract (legitimized by notions of individual client consent, as in conventional civil settlements) and of public legislation (of the sort seen in the federal 9/11 victim compensation fund). Between these two poles rest a variety of means that are problematic precisely because of their hybrid, private-and-public nature—things like aggregate settlements in consolidated litigation, class action settlements (as in Amchem itself), and corporate reorganizations under the Bankruptcy Code.

Moves to tighten to the point of unviability things like class action settlements—as Amchem quite arguably does—cannot slay the mass tort monster. They merely force peacemaking efforts over to surrounding territory—to bankruptcy and to private contracts. In the asbestos area, the Amchem Court's clampdown on class settlements unleashed a deluge of asbestos-related bankruptcies in which both courts and the business press have documented even more problematic self-dealing and conflicts of interest than were voiced against the Amchem deal. On the opposite side of the spectrum, the recent $4.85 billion deal in the Vioxx litigation seeks to reinvigorate private contracts—there, a contract not as one might expect between the defendant Merck and plaintiffs, but literally between Merck and the key plaintiffs' lawyers whose client inventories include the bulk of extant Vioxx claims.

The law would benefit from seeing each of these means not in terms of traditional procedural categories but, rather, as much more contiguous and overlapping in character. Whatever the means chosen, what the peacemaking plaintiffs' lawyers seek to do is to exercise a form of leverage: to use mass inventories of existing claims to assert a broader power to bargain with the defendant to set the peace terms for the future. What is needed for mass torts is a corresponding legal response that would turn this leveraging into its own source of constraint—that would bestow the coercive authority needed to make peace, but only coupled with measures to link the interests of the peacemakers to the long-term viability of the arrangements they create. Such measures might include the overriding of existing lawyer-client retention agreements so as to link the fees to be obtained from clients by plaintiffs' lawyers to the peace terms that they fashion for non-clients who are otherwise similarly situated.

This is a good deal less sweeping or radical than it might sound. Lawyer-client retention agreements grounded in conventional notions of the autonomous individual client and a lawyer loyal to her alone are strikingly out of line with the reality of aggregate representation in the mass tort setting. Overriding the fee terms in such contracts precisely when plaintiffs' lawyers seek to move beyond individual client representation and into the realm of peacemaking would merely expose to the clear light of day the leveraging that undergirds the dynamics of peace negotiations. It would bring the law into closer alignment with the practical reality of peacemaking in the aggregate, rather than rail against it in the manner of Amchem. And, not incidentally, it would be grounded in notions of public governance.

It is not easy to let go of the profession's old ideal of individualized client autonomy, or its old ethical strictures against attorney control of litigation. Yet new times call for new measures. If legal institutions are to advance the aggregate good, they need to develop new ways to tie the interests of the real decision-makers in litigation to the interests of those whom they purport to govern. No less is needed for peacemaking as a form of governance in mass tort litigation.

Richard Nagareda is Professor of Law and Director of the Cecil D. Branstetter Litigation & Dispute Resolution Program at Vanderbilt University Law School.

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