April 20, 2008

U.S.-style antitrust class actions? Nein danke, non merci, gracias no...

Per the WSJ, Europe's moves toward expanding the scope of antitrust litigation are very much informed by a view of the U.S. experience as cautionary:

The European Union proposed rules that would make it easier for businesses and consumers to sue for price fixing and other forms of antitrust abuse, but the measures would fall short of U.S.-style class-action litigation. ...

Taking direction from a 2001 ruling by the EU's highest court, the European Commission has tried to construct a system that would let victims of anticompetitive behavior seek damages. But it has been something of a reluctant effort given deep reservations in Europe about litigation. ...

...the EU shied away from the most aggressive aspects of the U.S. system: Plaintiffs should be able to seek compensation for damages, the commission proposed, but only once over -- no triple damages. And while groups of plaintiffs can sue jointly, the European system should be opt-in, unlike U.S. class actions, where individuals are assumed to be members of a class unless they opt-out.

Having plaintiffs' lawyers bring cases representing broad classes is "not our cup of tea," said Neelie Kroes, the EU's antitrust chief. Mrs. Kroes also proposed allowing "qualified" organizations, like consumer groups, to sue -- but in practice few groups would have the resources to take on multiple cases at once.

Indeed, while proposing a system that would make it easier to sue, Mrs. Kroes appeared acutely concerned with not going far. In a news conference, she referred several times to worries over "excessive litigation" and said that to prevent "procedural abuses" courts should have firm control over discovery.

The paper, which attempts to harmonize the disparate approaches of the 27 EU nation members, is open for public comment through mid-July; no doubt U.S. plaintiff's-bar interests, which have sought to encourage the expansion of litigation across the Atlantic, will find ways to make their views known.

April 17, 2008

Third-party litigation finance -- for defendants?

In the U.K., it looks as if what used to be called champerty and maintenance isn't just for plaintiffs any more.

March 26, 2008

"Foreign Courts Wary of U.S. Punitive Damages"

In today's New York Times, Adam Liptak writes about how European courts find the American concept of civil punitive damages "offensive" to justice, but suggests the tide is slowly turning, at least for smaller awards.

March 25, 2008

New Zealand's universal no-fault

Praised by a highly placed Colorado legislator, health committee chair Sen. Bob Hagedorn (D). More on the New Zealand system here, here, and generally here.

March 21, 2008

Third-party litigation funding in the U.K.

According to an article noted by the WSJ law blog, eight of ten top British law firms are now accepting outside investors' money to finance litigation, a practice punishable at common law as champerty until recent rules changes. The WSJ law blog talks to American legal ethics profs Monroe Freedman (Hofstra) and Deborah Rhode (Stanford), both of whom predictably applaud the development and hope it sets an example for the U.S. A contrasting piece of advice would be one I've heard attributed to Chesterton: don't tear down a fence until you're sure you understand why it was erected in the first place.

February 28, 2008

Presumed Guilty of Child Abuse

After Washington, D.C.'s Child and Family Services agency snatched the baby daughters of Greg and Juliana Caplan, a judge ordered their return, finding no reason to believe that that they had abused their daughters.

But the D.C. Government is still hounding the Caplans, who have already spent their life savings on legal fees, listing them in its child abuse registry. As Marc Fisher of the Washington Post notes, "Even after the court found for the Caplans, the city offered to end its investigation only if the parents submitted to counseling, anger management classes and unannounced visits from social workers. The Caplans declined the deal."

D.C. Attorney General Peter Nickles says that there should be a presumption of guilt in child abuse cases: "It may very well be that the weight of the evidence supports the Caplans' position," he said. "But the law is skewed properly toward the protection of the child."

Nickles assumes that seizing a child from her parents will "protect" the child. But as I noted yesterday, a child can experience devastating psychological harm from being taken from her parents. In Doe v. Lebbos (9th Cir. 2003), Judge Andrew Kleinfeld's dissent described the tragedy that befell a little girl who was seized from her father as a result of false abuse accusations:

"After being bounced around in the agency and foster parent bureaucracy for over a year, Lacey . . . was 'diagnosed with Post-Traumatic Stress Disorder, hearing voices, and suicidal ideation.' She was put on anti-psychotic medication. She had taken to smearing feces and to other abnormal and highly disruptive behavior. . . what the county did to her to "protect' her apparently destroyed her. Something in this experience, perhaps being ripped away from her father for whom she consistently expressed love during the whole miserable period, perhaps having strangers strip her and search her heretofore private parts, perhaps being put with caretakers instead of her father, amounted to a trauma that was too much for her."

In England, the problem is even worse, since social workers who seize children receive adoption bonuses.

February 27, 2008

Government Child-Snatching

Earlier, Ted Frank wrote about how government social workers have an incentive to overreact to erroneous allegations of child abuse, and take children away from loving parents, because they reasonably fear that they will be fired if a child on their caseload dies, even if the death was unforeseeable. (The problem is even worse in England, fueled by adoption bonuses). Children seized and placed into foster care often experience devastating psychological harm.

Washington, D.C.'s Child and Family Services agency (where 6 case workers were recently fired after a child died) seized the twin baby daughters of Greg and Juliana Caplan after one was taken to the hospital for bleeding behind the eye.

Continue reading   Government Child-Snatching

February 9, 2008

Denmark introduces class actions

Werner Kranenburg has details (see also).

January 31, 2008

Altria departs New York...

...and its profitable international division departs the U.S. entirely, to reincorporate in Lausanne, Switzerland, where the legal environment is more disapproving of expropriation. Hans Bader has some thoughts on capital flight.

December 19, 2007

U.K. class actions: a carom-shot strategy?

The way at least one British lawyer tells it, the push to open up class action procedures in the U.K. may represent a sort of carom-shot strategy on the part of the U.S. plaintiff's bar: they want to stir up these actions, but aren't actually likely to file them in British courts:

...the US plaintiffs’ Bar is showing a keen interest in recruiting claimants in the UK. The aim is not to develop claims in Europe, but to export claims in which the US courts are accepting jurisdiction. So if you have a choice as a claimant, the US will be first every time: no risk on costs, contingency fees and high damages make it attractive. If a UK claimant can be recruited either as a lead plaintiff or as a candidate for opting out of the class settlement, the returns for the attorneys can be significant.

This interest is likely to be heightened by a series of decisions in the US courts. In a claim by shareholders against Vivendi, the judge in the Southern District of New York decided arbitrarily that English claimants could litigate claims before the courts, but Germans could not. All turned on the view of the court as to whether a class judgment or settlement would be enforceable; yes in England but no in Germany.