Litigation Commons^™

The Structure Of Stockholder Litigation: When Do The Merits Matter, Minor Myers, Charles R. Korsmo

Faculty Scholarship

No abstract provided.

Fixing Multi-Forum Shareholder Litigation, Minor Myers

Faculty Scholarship

No abstract provided.

Profit For Costs, Morris A. Ratner, William B. Rubenstein

Faculty Scholarship

No abstract provided.

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 …

Toward A Regulatory Framework For Third-Party Funding Of Litigation, Keith N. Hylton

Faculty Scholarship

Because third-party funding and sales of legal rights are equivalent in terms of their economics, I examine arrangements in which third-party sales of legal rights are permitted today; those arrangements include waiver, subrogation, and settlement agreements. These existing arrangements provide valuable lessons for the appropriate regulatory approach to third-party financing of litigation.

A Model Litigation Finance Contract, Maya Steinitz, Abigail C. Field

Faculty Scholarship

Litigation financing is nonrecourse funding of litigation by a non-party for a profit. It is a burgeoning and controversial phenomenon that has penetrated the Unites States in recent years. Since "most of the important phenomena of modern litigation are best understood as results of changes in the financing and capitalization of the bar," it is not surprising that litigation financing has been dubbed by RAND as one of the "biggest and most influential trends in civil justice" and by the Chamber of Commerce "a clear and present danger to the impartial and efficient administration of civil justice in the United …

How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs

Faculty Scholarship

Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.

Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …

The Problem Of Settlement Class Actions, Howard M. Erichson

Faculty Scholarship

This article argues that class actions should never be certified solely for purposes of settlement. Contrary to the widespread “settlement class action” practice that has emerged in recent decades, contrary to current case law permitting settlement class certification, and contrary to recent proposals that would extend and facilitate settlement class actions, this article contends that settlement class actions are ill-advised as a matter of litigation policy and illegitimate as a matter of judicial authority. This is not to say that disputes should not be resolved on a classwide basis, or that class actions should not be resolved by negotiated resolutions. …

How Much Is That Lawsuit In The Window; Pricing Legal Claims, Maya Steinitz

Faculty Scholarship

This article poses the question: How should parties to litigation finance agreements – third party funding or contingency fees – deal with the inherent difficulty in pricing legal claims? It answers that a practical solution would be to use staged funding. Staged funding side-step the impossibility of accurately pricing litigation ex ante by allowing re-pricing and exit that are pegged to information disclosure. Done right, staging allows all parties to minimize the effects of uncertainty, better price their bargain, optimize the distribution of the proceeds of litigation between its different investors – far beyond practices common today. Staged funding also …

Injunctive And Reverse Settlements In Competition-Blocking Litigation, Keith N. Hylton, Sungjoon Cho

Faculty Scholarship

We distinguish standard settlements, in which the status quo is preserved, and injunctive settlements, which prohibit the defendant's activity. The reverse (payment) settlement is a special type of injunctive settlement. We examine the divergence between private and social incentives to settle and policies that would minimize socially undesirable injunctive and reverse settlements (e.g., banning reverse settlements). The results are applied to competition-blocking litigation, such as patent infringement and antidumping.

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Faculty Scholarship

No abstract provided.

The Curious Case Of Transformative Dispute Resolution: An Unfortunate Marriage Of Intransigence, Exclusivity, And Hype, Robert J. Condlin

Faculty Scholarship

Why do proponents of Transformative Dispute Resolution (TDR) defend the Theory in such intransigent, exclusivist, and grandiose terms? TDR is a mature theory, and a relatively sophisticated one, and qualities of this sort usually go hand in hand with a balanced, refined, and well-modulated sense of self. But TDR proponents will have none of that. They make ambitious (some would say outlandish) assertions about the Theory’s capacity to develop moral and political character, reform deliberative government, and resolve ethno-political conflict, while simultaneously rejecting overtures from sympathetic outsiders to rein in the overstated aspects of these claims and craft a more …

Patenting Nature: A Problem Of History, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

Trial Jurors And Variables Influencing Why They Return The Verdicts They Do - A Guide For Practicing And Future Trial Attorneys, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Idiosyncratic Risk During Economic Downturns: Implications For The Use Of Event Studies In Securities Litigation, Edward G. Fox, Merritt B. Fox, Ronald J. Gilson

Faculty Scholarship

We reported in a recent paper that during the 2008-09 financial crisis, for the average firm, idiosyncratic risk, as measured by variance, increased by five-fold. This finding is important for securities litigation because idiosyncratic risk plays a central role in event study methodology. Event studies are commonly used in securities litigation to determine materiality and loss causation. Many bits of news affect an issuer’s share price at the time of a corporate disclosure that is the subject of litigation. Because of this, even if an issuer’s market–adjusted price changes at the time of the disclosure, one cannot determine with certainty …

Recent Developments In Third-Party Funding, Victoria Sahani

Faculty Scholarship

This article addresses recent developments in third-party funding that occurred during late 2012 and early 2013 in the three leading jurisdictions: Australia, the United Kingdom and the United States. The most important developments are the following. On 22 April 2013, the Australian Securities and Investment Commission (ASIC) issued regulatory guidelines clarifying the status of funders with respect to ASIC’s regulations and detailing how funders should manage conflicts of interest and handle certain provisions of their funding arrangements. In the United Kingdom, the Jackson Reforms took effect on 1 April 2013, bringing sweeping changes to the allowable fee agreements, discovery rules …

The Patent Litigation Explosion, James Bessen, Michael J. Meurer

Faculty Scholarship

This Article provides the first look at patent litigation hazards for public firms during the 1980s and 1990s. Litigation is more likely when prospective plaintiffs acquire more patents, when firms are larger and technologically close and when prospective defendants spend more on research and development ("R&D"). The latter suggests inadvertent infringement may be more important than piracy. Public firms face dramatically increased hazards of litigation as plaintiffs and even more rapidly increasing hazards as defendants, especially for small public firms. The increase cannot be explained by patenting rates, R&D, firm value or industry composition. Legal changes are the most likely …

Certain Patents, Alan C. Marco, Saurabh Vishnubhakat

Faculty Scholarship

This Article presents the first in a series of studies of stock market reactions to the legal outcomes of patent cases. From a sample of patents litigated during a 20-year period, we estimate market reactions to patent litigation decisions and to patent grants. These estimates reveal that the resolution of legal uncertainty over patent validity and patent infringement is, on average, worth as much to a firm as is the initial grant of the patent right. Each is worth about 1.0-1.5% excess returns on investment. There are significant differences between such market reactions before and after the establishment in 1982 …

Segmented Settlements Are Not The Answer: A Response To Professor Squire’S Article, How Collective Settlements Camouflage The Costs Of Shareholder Lawsuits, Christopher C. French

Faculty Scholarship

In his recent article, Professor Richard Squire offers a provocative theory in which he claims the underlying claimants in shareholder litigation against corporate policyholders are overcompensated due to what he describes as “cramdown” settlements, under which insurers are forced to settle due to the “duty to contribute” that arises under multi-layered directors and officers (“D&O”) insurance programs. He also offers a novel idea regarding how this problem could be fixed by what he refers to as “segmented” settlements in which each insurer and the policyholder would be allowed to settle separately and consider only its own interests in doing so. …

When Bad Guys Are Wearing White Hats, Catherine A. Rogers

Faculty Scholarship

Allegations of ethical misconduct by lawyers have all but completely overshadowed the substantive claims in the Chevron case. While both sides have been accused of flagrant wrongdoing, the charges against plaintiffs’ counsel appear to have captured more headlines and garnered more attention. The primary reason why the focus seems lopsided is that plaintiffs’ counsel were presumed to be the ones wearing white hats in this epic drama. This essay postulates that this seeming irony is not simply an example of personal ethical lapse, but in part tied to larger reasons why ethical violations are an occupational hazard for plaintiffs’ counsel …

Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington

Faculty Scholarship

No abstract provided.

Narrative, Truth, And Trial, Lisa Kern Griffin

Faculty Scholarship

This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …

Achieving Procedural Goals Through Indirection: The Use Of Ethics Doctrine To Justify Contingency Fee Caps In Mdl Aggregate Settlements, Morris A. Ratner

Faculty Scholarship

No abstract provided.

The Litigation Finance Contract, Maya Steinitz

Faculty Scholarship

Litigation funding-for-profit, nonrecourse funding of a litigation by a nonparty-is a new and rapidly developing industry. It has been described as one of the "biggest and most influential trends in civil justice" today by RAND, the New York Times, and others. Despite the importance and growth of the industry, there is a complete absence of information about or discussion of litigation finance contracting, even though all the promises and pitfalls of litigation funding stem from the relationships those contracts establish and organize. Further, the literature and case law pertaining to litigation funding have evolved from an analogy between litigation funding …

The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

The Private Costs Of Patent Litigation, James Bessen, Michael J. Meurer

Faculty Scholarship

This paper estimates the total cost of patent litigation to alleged infringers. We use a large sample of stock market event studies around the date of lawsuit filings for US public firms from 1984-99. We find that the total costs of litigation are much greater than legal fees and costs are large even for lawsuits that settle. Lawsuits cost alleged infringers about $28.7 million ($92) in the mean and $2.9 million in the median. Moreover, infringement risk rose sharply during the late 1990s to over 14% of R&D spending. Small firms have lower risk relative to R&D.

Back To The Future (Reviewing David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (2011)), William D. Araiza

Faculty Scholarship

No abstract provided.

The Economics Of Third-Party Financed Litigation, Keith N. Hylton

Faculty Scholarship

This paper examines the law and economics of third-party financed litigation. I explore the conditions under which a system of third-party financiers and litigators can enhance social welfare, and the conditions under which it is likely to reduce social welfare. Among the applications I consider are the sale of legal rights (such as contingent tort claims) to insurers, to patent trolls, and to financiers generally

Professionalism And Advocacy At Trial – Real Jurors Speak In Detail About The Performance Of Their Advocates, Mitchell J. Frank, Osvaldo F. Morera

Faculty Scholarship

No abstract provided.

Clarity And Clarification: Grable Federal Questions In The Eyes Of Their Beholders, Elizabeth Mccuskey

Faculty Scholarship

Jurists and commentators have repeated for centuries the refrain that jurisdictional rules should be clear.' Behind this mantra is the idea that clearly designed jurisdictional rules should enable trial courts to apply the law more easily and therefore allow litigants to predict more accurately how trial courts will rule^.2 The mantra's ultimate goal is efficiency-that trial courts not labor too long on jurisdiction and, most important, that litigants can accurately predict the correct forum and choose to spend their money litigating the merits of their claim, rather than where it will be heard. Jurisdictional clarity largely is devoted …