Law Commons^™

Two Steps Too Far: New Limitations On The Use Of The Texas Two-Step To Resolve Mass Tort Liability In Bankruptcy, Samuel E. Bartz

University of Miami Business Law Review

This paper explores the mechanisms by which companies have utilized corporate restructuring through divisive mergers in conjunction with the available protections and tools of the United States Bankruptcy Code to resolve mass tort liability without placing the entirety of the business under bankruptcy. Popularized in Texas, a divisive merger is a mechanism by which an existing business entity divides itself into two new entities, allocating all pre-existing assets and liabilities to each as they see fit. Although intended to be a means by which to easily sell assets of a business, it has been more popularly used to resolve mass …

Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman

Scholarly Works

Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?

These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find …

Where's The Insurance In Mass Tort Litigation?, Tom Baker

Articles

This article reports and explains four key findings about the difference between the role of insurance in mass tort litigation and the role of insurance in ordinary tort and corporate governance litigation as reported in earlier research: (1) outside of the insolvency context, mass tort plaintiff lawyers do not build their litigation and settlement strategy around defendants’ liability insurance; (2) mass tort defendants typically retain control over their defense, even when they recover under insurance policies that assign the insurer control over their defense; (3) mass tort defendants typically use their own funds to settle claims, obtaining indemnification from their …

The Great Escape: Exploring Chapter 11’S Allure To Mass Tort Defendants, Natalie R. Earles

Louisiana Law Review

The article explores Chapter 11 bankruptcy proceedings as a defense strategy used by mass tort defendants to escape unfavorable litigation and proposes the U.S. Congress to revise the Bankruptcy Code to disincentivize the misuse of bankruptcy power.

Bankruptcy Grifters, Lindsey Simon

Scholarly Works

Grifters take advantage of situations, latching on to others for benefits they do not deserve. Bankruptcy has many desirable benefits, especially for mass-tort defendants. Bankruptcy provides a centralized proceeding for resolving claims and a forum of last resort for many companies to aggregate and resolve mass-tort liability. For the debtor-defendant, this makes sense. A bankruptcy court’s tremendous power represents a well-considered balance between debtors who have a limited amount of money and many claimants seeking payment.

But courts have also allowed the Bankruptcy Code’s mechanisms to be used by solvent, nondebtor companies and individuals facing mass-litigation exposure. These “bankruptcy grifters” …

A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan

Faculty Scholarship

In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.

This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …

The Settlement Trap, Lindsey Simon

Scholarly Works

Mass tort victims often wait years for resolution of their personal injury claims, but many who successfully navigate this arduous process will not receive a single dollar of their settlement award. According to applicable bankruptcy and state law, settlement payments may be an asset of the estate that the trustee, exercising its significant authority, administers and distributes to creditors instead of a claimant who had filed for bankruptcy. This distribution power maximizes repayment, a critical counterbalance to the robust protections and benefits that debtors receive in bankruptcy.

Setting aside the perceived unfairness of taking desperately needed money from tort victims, …

The Issue Class Revolution, Myriam E. Gilles, Gary Friedman

Articles

In 2013, four Supreme Court Justices dissented from the decision in Comcast Corp. v. Behrend, which established heightened requirements for the certification of damages class actions. In a seemingly offhanded footnote, these dissenters observed that district courts could avoid the individualized inquiries that increasingly doom damages classes by certifying a class under Federal Rule of Civil Procedure 23(c)(4) on liability issues only and "leaving individual damages calculations to subsequent proceedings." The dissenters were onto something big. In fact, the issue class and follow-on damages model has broad potential to restore the efficacy of aggregate litigation across several substantive areas after …

Rios V. Bayer: The Illinois Supreme Court Recognizes Bristol-Myers Squibb, Jamison Winters

SLU Law Journal Online

Madison County, Illinois is a favorite venue among forum shoppers. Jamison Winters discusses how, by recognizing Bristol-Myers Squibb’s narrowing of the relatedness standard in specific personal jurisdiction, the recent Illinois Supreme Court decision in Rios v. Bayer may work to discourage forum shopping in venues like Madison County.

Mass Torts: Dispute Resolution In France And The United States--The Vioxx And Mediator Cases Compared, Fred Einbinder Mr.

Washington International Law Journal

Dispute resolution in legal systems has largely been designed for handling issues between small groups of individuals or organizations. Obtaining legal redress for those injured by mass torts and using the law as a means to prevent future occurrences has presented challenges for the development of effective dispute resolution mechanisms to obtain relief for plaintiffs and deter future tortfeasors. A comparison of French and American mass tort law and practice offers a fertile field for useful comparative study given the significant differences in approach taken by each country’s legal system. These differences derive as much from history, politics, the attitudes …

Follow The Money? A Proposed Approach For Disclosure Of Litigation Finance Agreements, Maya Steinitz

Faculty Scholarship

Litigation finance is the new and fast-growing practice by which a non-party funds a plaintiff’s litigation either for-profit or for some other motivation. Some estimates placed the size of the litigation finance market at 50–100 billion dollars. Both proponents and opponents of this newly -emergent phenomenon are in agreement that the it is the most important development in civil justice of this era. Litigation finance is already transforming civil litigation at the level of the single case as well as, incrementally, at the level of the civil justice system as a whole. It is also beginning to transform the way …

Does Multidistrict Litigation Deny Plaintiffs Due Process?, Elizabeth Chamblee Burch

Popular Media

No abstract provided.

Financial Impact Of The Opioid Crisis On Local Government: Quantifying Costs For Litigation And Policymaking, Elizabeth Weeks

Scholarly Works

The opioids epidemic has had a significant impact on individuals and communities, including local governments responsible for serving and protecting those affected individuals. This is the first study of its kind to consider whether those local government costs are quantifiable, a question that has salience both for pending opioid litigation in federal and state courts and for local planning and budgeting decisions. This article first provides a detailed description of the opioid litigation landscape, including the federal multidistrict litigation (MDL) in Ohio, the Native American tribes’ actions, and various procedural and other hurdles that local government plaintiffs face in seeking …

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

Scholarly Works

On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …

The Case For An International Court Of Civil Justice, Maya Steinitz

Books

When multinational corporations cause mass harms to lives, livelihoods, and the environment in developing countries, it is nearly impossible for victims to find a court that can and will issue an enforceable judgment. In this work, Professor Maya Steinitz presents a detailed rationale for the creation of an International Court of Civil Justice (ICCJ) to hear such transnational mass tort cases. The world's legal systems were not designed to solve these kinds of complex transnational disputes, and the absence of mechanisms to ensure coordination means that victims try, but fail, to find justice in country after country, court after court. …

Publicly Funded Objectors, Elizabeth Chamblee Burch

Scholarly Works

On paper, class actions run like clockwork. But practice suggests the need for tune-ups: sometimes judges still approve settlements rife with red flags, and professional objectors may be more concerned with shaking down class counsel than with improving class members’ outcomes. The lack of data on the number of opt-outs, objectors, and claims rates fuels debates on both sides, for little is known about how well or poorly class members actually fare. This reveals a ubiquitous problem — information barriers confront judges, objectors, and even reformers. Rule 23’s answer is to empower objectors. At best, objectors are a partial fix. …

Parens Patriae And The States' Historic Police Power, Margaret S. Thomas

Journal Articles

Class actions have long been contracting as procedural vehicles in mass tort litigation. At the same time, parens patriae actions brought by state attorneys general for injuries to their state’s citizenry have been expanding. This form of public dispute has emerged as a full-fledged alternative form of aggregate litigation in mass torts. The use of this public alternative is already widespread in consumer, antitrust, environmental, and health law cases.

Despite the widespread use of parens patriae litigation by states, the source of the power to sue in this way is vague and ill-defined. Courts have struggled to articulate and explain …

An Opt-In Option For Class Actions, Scott Dodson

Michigan Law Review

Federal class actions today follow an opt-out model: absent an affirmative request to opt out, a class member is in the class. Supporters defend the opt-out model as necessary to ensure the viability of class actions and the efficacy of substantive law. Critics argue the opt-out model is a poor proxy for class-member consent and promotes overbroad and ill-defined classes; these critics favor an opt-in model. This bimodal debate—opt out vs. opt in—has obscured an overlooked middle ground that relies on litigant choice: Why not give the class the option to pursue certification on either an opt-out or an opt-in …

Newsroom: Logan On 2015'S Record Settlements, Roger Williams University School Of Law

Life of the Law School (1993- )

Also available @ http://law.rwu.edu/story/logan-2015s-record-settlements

It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce

Tanya Pierce

In 2004, just five years after introducing the drug, Vioxx, pharmaceutical company, Merck, voluntarily withdrew the prescription pain-killer after a clinical study suggested that the drug increased the risk of heart attack and stroke. But in that relatively short time, an estimated 20 million Americans had already taken the drug. By late 2007, Merck announced it would pay $4.85 billion — the largest drug settlement ever — in “global settlements” for Vioxx-related claims. These settlements ultimately included roughly 47,000 individual lawsuits and about 265 potential class actions, but the Vioxx settlements were far from global.

In 2012, a purported parallel …

Mass Torts And The Rhetoric Of Crisis, John A. Siliciano

John A. Siliciano

No abstract provided.

The Case For An International Court Of Civil Justice, Maya Steinitz

Faculty Scholarship

We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. 1 The only way to provide a fair and legitimate process for both victims and corporations is to create an International Court of Civil Justice (ICCJ). This Essay seeks to start a conversation about this novel institutional solution. It lays out both a justice case, from the plaintiffs' viewpoint, and an efficiency case, from a corporate defendant's viewpoint, for why …

Considerations In Choosing Counsel For Multidistrict Litigation Cases And Mass Tort Cases, Stanwood R. Duval Jr.

Louisiana Law Review

No abstract provided.

The Pesky Persistence Of Class Action Tolling In Mass Tort Multidistrict Litigation, Jeremy T. Grabill

Louisiana Law Review

No abstract provided.

It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce

Missouri Law Review

Nearly twenty years ago, speaking of the difficulties inherent in managing mass tort cases, Chief Justice William Rehnquist predicted that without coordinated state and federal mechanisms, lawyers would "seek to pursue duplicative and exhaustive litigation." And some courts, "operating under a parochial view of the situation," would allow them to do so. He warned that the result would be "expense, delay, resulting crowding of dockets, divergent decisions on identical factual questions, and sometimes the insolvency of the defendants who are being sued." Despite this and similar warnings, expensive and exhaustive litigation is exactly what has happened in many cases.

Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge

Scholarly Works

Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …

It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce

Faculty Scholarship

In 2004, just five years after introducing the drug, Vioxx, pharmaceutical company, Merck, voluntarily withdrew the prescription pain-killer after a clinical study suggested that the drug increased the risk of heart attack and stroke. But in that relatively short time, an estimated 20 million Americans had already taken the drug. By late 2007, Merck announced it would pay $4.85 billion — the largest drug settlement ever — in “global settlements” for Vioxx-related claims. These settlements ultimately included roughly 47,000 individual lawsuits and about 265 potential class actions, but the Vioxx settlements were far from global.

In 2012, a purported parallel …

Introduction, Part Ii, Perspectives In Mass Tort Litigation Symposium, Christopher J. Robinette

Christopher J Robinette

An Experiment In Law Reform: Amchem Products V. Windsor, Patrick M. Hanlon

University of Michigan Journal of Law Reform

The Supreme Court's 1997 decision in Amchem Products, Inc. v. Windsor struck down the most ambitious settlement class action ever attempted. The settlement was, however, the logical outgrowth of the federal judiciary's efforts in the early 1990s to resolve a "disaster" of "critical proportions." Many factors, not least the Supreme Court's decision in Amchem, turned the tide against this trend. Ironically, however, the post-Amchem world has come to look a lot like Amchem. The settlement's central feature-deferral of unimpaired claims to assure the availability of resources to compensate the sick-was subsequently incorporated (either by statute or through judicial decision) into …

Foreward, Howard M. Erichson, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.