Recently in Environmental/Toxic Torts Category

The Second Circuit has ruled that Chevron must challenge the Ecuadorian judgment against it jurisdiction by jurisdiction rather than asking a US court to enjoin enforcement globally. The ruling is likely to have an adverse effect on Chevron's collateral RICO litigation against the plaintiffs. Meanwhile, you wouldn't know anything was fishy going on if you relied on Time Magazine's one-sided coverage instead of Alison Frankel's. [Frankel; Frankel; Frankel; Time; NYLJ; New Yorker via OL]

Of course, it's a standard tactic for plaintiffs' lawyers to lobby media, hedge funds, and government to mau-mau corporations into settling, so this isn't exactly a man-bites-dog scandal, but the New York Times takes a look at this often underreported aspect of big-bucks litigation. Chevron has filed a freedom-of-information request with New York state government. Chevron's Amazon Post website is an admirable attempt to get its side of the story out there (one we'd wish other corporations would emulate when being unfairly attacked by the trial bar).

Relatedly, Miami Herald film critic Glenn Garvin has some trenchant observations about the number of trial-lawyer-funded films masquerading as documentaries.

In other Lago Agrio news, the Second Circuit vacated Judge Kaplan's preliminary injunction against the plaintiffs regarding enforcement of the Ecuador judgment. A request to remove Kaplan from the case was denied.

Under the controversial theory of medical-monitoring liability, courts are asked to award damages to otherwise uninjured plaintiffs so as to provide for future medical surveillance. The Third Circuit's ruling noting the impossibility of reasonable class certification on such a theory is a landmark decision for the rule of law. Congratulations to Carl Solano (an attorney of mine in wildly unrelated litigation), who argued and got this important win. [Beck; Trask; Wajert; Courthouse News; Gates v. Rohm and Haas Co. (3d Cir. Aug. 25, 2011)]

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).

Daniel Fisher has details at Forbes. The Chamber of Commerce takes a hard line with these arrangements, but I don't see anything particularly problematic as a public-policy matter with this particular contract, which is really structured as a very high-interest contingent loan with a de facto lien on the settlement proceeds. The funder doesn't control the litigation (unless there's a secret side agreement), and there isn't a conflict of interest.

What does strike me as interesting is the existence of a "non-profit," "Friends of the Defense of the Amazon" in the Chevron litigation, which is a decidedly for-profit endeavour. I find my non-profit project decidedly restrictive in terms of what litigation I can and cannot engage in while complying with tax law, but perhaps the Lago Agrio plaintiffs have been more creative in structuring their entities.

The new Fortune magazine has coverage of the Lago Agrio scandal, and supplements it on the web with Roger Parloff's tale of the latest evidence of Ecuadorian corruption: a judicial opinion that quotes heavily not from any of the court filings, but from an internal plaintiffs' firm memo.

The Senate Judiciary Committee on Thursday voted out S. 623, the Sunshine in Litigation Act, intended to compel judges to open settlement agreements and other court proceedings that seal confidential documents. Sen. Herb Kohl (D-WI), the sponsor, and Sen. Chuck Grassley (R-IA), talked about how the bill been improved and made more balanced. We don't see it. (See Shopfloor post, "Sunshine in Litigation Act, Polished Up a Little.")

An interesting little exchange followed the 12-6 vote to report out the bill:

Chairman Patrick Leahy (D-VT): I want to compliment Sen. Kohl. I know he has worked a long, long time on this.

Kohl: 18 years.

Sen. Dianne Feinstein (D-CA): 18 years?

Kohl: It's been around for 18 years.

Leahy: 18 years. So congratulations.

We detect solicitude toward a senior. Sen. Kohl recently announced his decision not to seek re-election, and -- based on our decade of experience in and around the North Dakota Legislature -- we'd say his colleagues are paying respect to the Senator's years of service by letting the bill get out of committee and maybe even pass the Senate. Legislatures are human institutions, after all, and this sort of gesture has its place. Just as long as the bill doesn't become law.

BTW, the first time the Senator introduced the bill was August 6, 1993. It was S. 1404, the Sunshine in Litigation Act of 1993.

A 2006 Louisiana law allows conventional tort litigation by landlords who leased to oil companies to supplant state regulatory efforts at remediation and cleanup. Oil companies express concern that they're now drawn into expensive litigation that delays the cleanup process for several years, but one suspects that they're even more concerned that entrepreneurial trial lawyers have figured out that impoverished remote-county juries and judges plus deep-pocketed defendants presents desirable rent-seeking. One verdict awarded $54 million for environmental damage to a piece of land that was never worth more than $108,000. Business is asking the legislature for relief, and there has since been a feeding frenzy of suits over decades-old leases; meanwhile, Louisiana's attempt to sue itself into prosperity has hurt job growth. [Times-Picayune; Landry (Louisiana Lawsuit Abuse Watch) @ Houma Daily Comet]

Andrew Grossman and Jonathan Adler analyze the oral argument in American Electric Power v. Connecticut. Update: also Walter Olson.

Legislators from Maryland's Eastern Shore continue to be exercised about the University of Maryland Environmental Law Clinic’s active support for a federal lawsuit against a chicken operation that could have major implications for the entire poultry industry in the state. (Update: And nationally. It IS federal court, after all.)

The clinic has aided two groups, Assateague Coastkeeper and the Waterkeeper Alliance, which filed a Clean Water Act citizens complaint in March 2010 in U.S. District Court in Maryland against Hudson Farms and Perdue Farms, Inc. (Assateague news release). The dispute turned into a full-blown controversy when state Senator Lowell Stoltzfuss sought to withhold funds from the Law School in retaliation for its anti-business activities. Editorialists excoriated what they viewed as an attack on academic freedom, but why, after all, should taxpayer funds be used to drive the poultry industry out of business?  We discussed the issue at length in our April 12, 2010, post, “Chicken suit.”

Judge William Nickerson dismissed Assateague Coastkeeper as a plaintiff last July while allowing Robert F. Kennedy’s Waterkeepers Alliance to continue the suit. In its fall newsletter, the Environmental Law Clinic hailed Nickerson’s ruling, “Clinic Wins Key Ruling in Chesapeake Bay Pollution Lawsuit Against Poultry Industry”:

On July 20, 2010, a federal judge gave the Environmental Law Clinic an important victory in its suit charging Perdue Farms Incorporated (“Perdue”) with improper disposal of chicken waste. Judge William M. Nickerson denied Perdue’s claim that it could not be held legally responsible for the waste and refused to dismiss the case. The Clinic’s theory of liability against Perdue focuses on Perdue’s control of concentrated animal feeding operations (CAFO) or “integrator” liability. This is the first case of integrator liability under the Clean Water Act brought in federal court against the poultry industry.