Monday's post (12/26) pointed out a variety of product liability, corporate law and compensation issues in the context of one nation (India) and a small group of apparently independent asbestos-cement companies. The point of today's post is to illustrate macro level complexities that arise due to the cross-border issues that arise from multinationals, globalization and immigration, among other factors. A few country-specific points also are noted.
Today's post focuses on the large number of Eternit, Etex and other related entities that for decades have comprised a literally global network of manufacturers of asbestos-cement. Today, some of these companies are in the news because of the recent start of an Italian trial to resolve combined civil and criminal charges involving over 2,500 injuries and deaths suffered by persons injured by asbestos inhaled at manufacturing facilities operated in Italy by Eternit entities. In the trial, individual officers and managers face Italian law charges that are more or less akin to reckless homicide, with the charges related to Italian laws requiring a safe workplace. Additional media stories exist because one of the defendants is a billionaire, and he is busy with actions that rightly or wrongly seek to portray Mr. Schmidheiny as a person who is both "green" and concerned about other people.
Global Scale, Decades Ago: What are sources for facts discussed in this post ? As to the entities in general, this substantial paper provides an extensive and apparently reasonably credible hundred year history of various Eternit entities sprawled around the globe (but note the paper is prepared by partisans plainly interested in causing Eternit entities to make compensation payments.) The paper can be skimmed in just a few minutes to obtain a basic grasp of the global scale and inter-connected nature of the operations. A basic summary is that the entities operated across Europe, Africa, South America and Asia. The paper also describes extensive transfers of business operations between and among entities. For more background and specifics on the trial in Italy, please look to the left for prior posts indexed under Eternit and/or go to this partisan website operated by persons who support the injured persons. Articles here and here relate to Mr. Schmidheiny and his image/actions.
The bottom line ? Actions of Eternit and Etex entities, and their officers and managers, plainly caused many deaths and injuries among plant workers around the globe, and no doubt more deaths and injuries of plant workers will follow in future years. One also may reasonably assume that so-called "take home" exposures have produced some number of deaths or injuries among spouses of plant workers through fact patterns such as a wife contracting mesothelioma due to having shaken out and washed a husband's work clothes laden with asbestos fibers. It also seems fair to conclude that injuries and deaths also have occurred and will continue among persons who worked for contractors who performed services at the plants, such as persons who installed, removed, or serviced a factory boiler. In the US, the latter incidents would give rise to "premises liability" claims. In addition, some additional number of current and future product liability claims will arise among persons who sawed, drilled, broke or otherwise worked directly with asbestos-cement or other Eternit products. For all of these groups of current and future victims of disease, one assumes that some significant number of persons and/or their families will have migrated to other nations.
The injuries and deaths arising from decades of global operations and transfers of business operations will provide the factual grist needed for plaintiff's lawyers, defense lawyers and insurance company lawyers to write and argue a wide range of legal positions on a wide range of liability, compensation and insurance issues. The various positions will be further colored by the years in which relevant action or inaction did or did not occur. The issues for example logically would require parsing which entities and/or officers and directors are directly liable to pay which claims, whether as defendants facing civil claims or via mitigation payments to reduce criminal sanctions ? Also, are those entities or persons financially protected by insurance or other indemnities ? Which entities, persons, insurance policies, or insurers are known, still exist , and are financially viable ? Can funds be obtained from solvent reinsurers who lurk behind insolvent primary insurers?
Other issues may arise regarding which entities or persons are entitled to make claims or decisions regarding insurance or other assets. And, all of these issues will arise under the laws of myriad nations. Moreover, health care costs associated with the injuries will be incurred in myriad nations under myriad legal rules regarding the recoverability of such expenses. To the extents the costs are not recovered from Eternit entities, they will have imposed a burden on the "economic commons" of many nations, and those burdens will be suffered for several future decades due to the 20-50 year latency periods associated with cancers caused by asbestos inhalation.
Also consider the impacts of corporate papers written in myriad languages, and myriad rules on discovery. And bear in mind that most of the paper will not be in digital form. Also think about if and when relevant papers were destroyed or preserved.
County-Specific Topics: To highlight just a few of the legal issues, one may look at the Italian trial to see both differences and similarities when compared, tor example, to the US legal system. One difference between US and Italian law is that Italy allows joinder of both criminal charges and civil claims, an approach that would set off shock waves if used in the US. Second, note that the trial includes claims by Italian government agencies seeking to obtain repayment of expenses incurred for medical care for injured persons. Thus, another example of the reality that diminishing government resources lead to more claiming, and that the US is not unique in being a home for lawsuits seeking government cost recoveries. Note also that the Italian system moves more slowly and in different ways than does the US system. Thus the prosecutors gather and share information and evidence in conjunction with testimony taken at various times before one or more judges. Note finally that the trial coverage highlights yet again the risk related to corporate reputation.
Macro Issues: So, who pays, when and how given a history of inter-related entities spread across the globe, many transfers of entities and assets, and many nations with an apparent interest in asserting jurisdiction and trying to provide due process for both claimants and defendants ? And, how does society cope with the reality that some of the victims probably have moved to other parts of the distant from where they inhaled fibers, and that faux victims will emerge ?
Litigation of course is an option. Consider, however, the incredible amount of wasted resources we saw in US asbestos litigation that took place mainly under one language and with mainly state-based rules of law that vary, but are not so terribly different in their general framework. Now consider the inefficiencies plainly ahead when the Eternit/Etex issues described above will unfold globally in myriad languages under rules of law that in some cases are now fixed but in other cases have yet to be written or decided in developing countries.
For all the above issues, who can or should speak for which future personal injury claimants? Who can or should speak for governments or others who incur health care costs resulting from Eternit-caused injuries ? Who can or should speak for other corporate defendants that will be called on to pay for some or all of the injuries caused by work at Eternit plants or by Eternit products? Who speaks for US and non-US asbestos trusts and/or foundations that will be called on to pay for some or all of the injuries caused by work at Eternit plants or by Eternit products? Who speaks for solvent or insolvent insurers or solvent insurers that are trying to cut off their future payments and risks by participating in "schemes of arrangement" in the UK, the United States or other nations?
Wednesday, December 30, 2009
Monday, December 28, 2009
Focusing this Week on Global Issues and Future Claims, Starting with Articles on Growing Asbestos Cement Use in India
I keep falling off the "global" side of things. So, this week, I'll make a special effort to be more global. This week I'm also going to try to focus more on the wide range of issues regarding "future" claims. By future claims, I mean future tort or business to business claims that possibly, likely or probably will arise as a result of past and/or current and/or future sales of products that involve risks, whether known, knowable or evolving.
Issues to Ponder: The starting point is India and its booming production of asbestos cement products. As detailed in the articles described below, there are myriad entities involved in and expanding their businesses in India producing asbestos cement products. Plainly, the manufacturing process itself sales produces risks of future physical injuries, and so do sales of the products. So, given the asbestos injury debacles still ongoing in North America, Europe and Australia, what should one think about these processes and sales in other nations. Should asbestos fiber be sold at all since, without it, there is no industry ? Should asbestos-cement sales be allowed ? Should the manufacturers be required to issue warnings in languages geared at the likely readers ? How big should the warnings be? How permanent should the warnings be - after all, someone will dismantle or cut these sheets some day in the future ?
Should the manufacturers be required to buy minimum levels of insurance in case they are wrong in their hopeful assessment that risks are low ? Is insurance even available or is there an "asbestos exclusion" of the sort put into place in the US in the early to mid-1980s? Either way, should their be minimum capital requirements for conducting a business that plainly involves some level of risk? Should these companies be allowed to do business for 20 years and then fold up and exit before cancers arise after lengthy latency periods ? Should they exit through dissolution, insolvency, or chapter 11 like proceedings? Should we judge the actions of the companies, their insurers and their customers based on what we know and have been through in the US, Europe and Australia, or should a different standard apply?
If the risks prove to be greater than stated and/or expected, how much should be paid as compensation when future cancers arise? Should legislation be put in place now that will let insurers keep down premiums and that will warn asbestos-cement users that future damages for a potentially horrible death by mesothelioma will be capped at 1,000,000 rupees? But, what happens when exposed persons migrate to new nations, start families and then become sick (or at risk) in other nations? Will those caps apply ? Will the caps apply to risks of cancer or other disease, or just an actual, manifest disease itself?
If there is much future claiming, shall we (once again) blame the lawyers involved? Shall we blame the business persons who went ahead producing asbestos-cement, knowing they were exposing others to risks and failing to confront fully some very real issues with predictable possible future consequences? Or, shall we blame government officials who let the issues go ? Or, shall we just let the topic unfold on its own, trusting that there will be an economic market-based solution ? Will that solution involve litigation funders? Multinational plaintiff's firms?
Will science save the victims ? In 5, 10 or 20 years, will cancer be a manageable disease? Curable? Always? Sometimes ? For some genomes, but not others? For some cancers, but not others? Will it all depend on when the disease is first spotted as having started at the cellular level?
Simply put, we are now at a time where intelligent, sentient beings are not able to credibly deny the foreseeability of the future issues that may arise. Judge Weinstein and others have plainly said that we in the US have collectively done a lousy job dealing with tort law issues. "Conservatives" blame the trial lawyers. The trial lawyers blame "greed" and purportedly "heartless" business persons. Academics ponder and write, some are great but too many lack a real understanding of the real world of business, science and the litigation industries that thrive on insurance claims and tort claims. Those industries, however, do not have all the answers, and so there is the quagmire known as chapter 11
Myriad former manufacturers and sellers of risky products (not just asbestos) are now in chapter 11, some due to actual insolvency caused by product liabilities and some because chapter 11 is a great place to use legal and financial engineering to dump problems and move ahead without the burden of the past. To that end, our nation's bankruptcy judges have issued rulings creating $ 30 billion or more of asbestos trusts. In the process, the bankruptcy judges hear evidence (very loosely speaking) and make rulings about future tort "liabilities" even though they have little or no clue about the real rules of each of the 50 state court tort systems and/or the realities of insurance claiming or paying, and also have little or no clue why state court tort claim settlements and trials turn out as they do. Too often, they do not even allow objectors to appear and they just "bless" deals cut by interested people, all making money from the outcome. Meanwhile, state court trial judges continue to march asbestos cases to trial despite having little or no idea of or regard for what may or should happen with the $ 20 billion still left in the trusts, and the billions more that will be added. And, virtually no one does or says much for companies that stay in business and are stuck paying the financial tab for deaths and injuries that in fact were caused by companies now sheltered by purportedly world-wide chapter 11 injunctions.
All these abstract issues really do matter and need better answers than we have today. But, the answers are not arriving. Why ? In part because the issues quickly become moot for a person dying from (avoidable) cancer. All they may want to do is try to live, or to die gracefully, perhaps leaving some money behind to support a dependent spouse or children. So, they victims say very little, and their lawyers include some good people, but they are busy looking for the next case and in any event are not really the spokespersons for the future victims.
Who really speaks for these foreseeable future claimants? No one, because their interests are in fact not well-served by today's "future's representatives." Why is that so (in my opinion), when the ranks of the futures representatives include some genuinely good, smart and compassionate individuals? The realistic answer includes many factors. One is that futures representatives are hopelessly conflicted between really sick people and the not so sick. (On this topic, see the Amchem decision, the many law reviews after it, and this great article by Plevin, Epley (now Davis) and Elgarten on the specifics of futures representative conflicts in asbestos bankruptcies) The futures representatives also hit conflicts due to the desire to reach certainty, today or "soon," despite the changes science will bring tomorrow. They also are outnumbered and out muscled. And, finally, the bankruptcy code gives them far too little power, and pays far too little attention to current or future science.
Global Context for Why the Issues Matter: On the last two Sundays, The Toronto Star has published an extended pair of articles (here and here) that are well worth reading as they cover in some detail the topics of increasing use of asbestos in India as a "developing country," and plans to export more asbestos fiber from Canada's Jeffrey Mine. The first article focuses on the growing use of asbestos cement to provide less expensive and "better" housing for people living in massive slums in India. The author, Jennifer Wells, candidly confronts the disparities between the "talking points" offered by the manufacturers and government as compared to the reality of actual working conditions in factories and the reality that there are no safeguards on use in the slums. She also points out that all of the warnings on the products are in languages other than Hindi. Ms. Wells also identifies the manufacturers and fiber suppliers.
The second article focuses on the issues regarding Canada's continuing export of chrysotile fiber, and plans to expand the exports from the Jeffrey Mine. The mine was formerly owned by Johns-Manville and has been in use for decades. According to the article, the open pit phase of mining is drawing to a close, but an underground mining phase is perhaps approaching fruition. The article includes some of the needed dialogue regarding the distinctions between the different asbestos fibers. Unfortunately, the article does not report on whether the "new" fiber to be mined has or has not been tested for "contamination" with amphibole fibers.
These article are yet another example of the issues that evolve as "developing" countries face opportunities and choices. In part, they face choices between current and future health risks, and the demands/pressures of industry and a vast population. They also face choices between the financial and health costs and risks encountered by people aspiring to "better" living conditions.
For those interested in more on the topic of banning asbestos, consider Laurie Kazan-Allen's website that documents her many years spent campaigning with others to ban asbestos use around the world. Ms. Kazan-Allen works through an organization known as the International Ban Asbestos Secretariat (IBAS). Ms. Kazan-Allen is the sister of an American asbestos plaintiff's lawyer, Steve Kazan. She has accomplished a great deal to limit the harms that can arise from asbestos use. She also has organized many groups of victims seeking medical care. legislation and/or compensation. The website contains a vast amount of information and is well worth the time to browse for anyone interested in the issues. The website also highlights a paper on and an upcoming conference opposed to asbestos use in Asia. In addition, Steve Kazan provides a website known as the World Asbestos Report.
Others, of course, would say IBAS goes too far in seeking to ban all use of all forms of asbestos. That position is well laid out in the Toronto Star's second article.
Unfortunately, there is no website focused on those who will have the future risk or disease, or the interests of the companies that will in the future pay bills for other companies.
Issues to Ponder: The starting point is India and its booming production of asbestos cement products. As detailed in the articles described below, there are myriad entities involved in and expanding their businesses in India producing asbestos cement products. Plainly, the manufacturing process itself sales produces risks of future physical injuries, and so do sales of the products. So, given the asbestos injury debacles still ongoing in North America, Europe and Australia, what should one think about these processes and sales in other nations. Should asbestos fiber be sold at all since, without it, there is no industry ? Should asbestos-cement sales be allowed ? Should the manufacturers be required to issue warnings in languages geared at the likely readers ? How big should the warnings be? How permanent should the warnings be - after all, someone will dismantle or cut these sheets some day in the future ?
Should the manufacturers be required to buy minimum levels of insurance in case they are wrong in their hopeful assessment that risks are low ? Is insurance even available or is there an "asbestos exclusion" of the sort put into place in the US in the early to mid-1980s? Either way, should their be minimum capital requirements for conducting a business that plainly involves some level of risk? Should these companies be allowed to do business for 20 years and then fold up and exit before cancers arise after lengthy latency periods ? Should they exit through dissolution, insolvency, or chapter 11 like proceedings? Should we judge the actions of the companies, their insurers and their customers based on what we know and have been through in the US, Europe and Australia, or should a different standard apply?
If the risks prove to be greater than stated and/or expected, how much should be paid as compensation when future cancers arise? Should legislation be put in place now that will let insurers keep down premiums and that will warn asbestos-cement users that future damages for a potentially horrible death by mesothelioma will be capped at 1,000,000 rupees? But, what happens when exposed persons migrate to new nations, start families and then become sick (or at risk) in other nations? Will those caps apply ? Will the caps apply to risks of cancer or other disease, or just an actual, manifest disease itself?
If there is much future claiming, shall we (once again) blame the lawyers involved? Shall we blame the business persons who went ahead producing asbestos-cement, knowing they were exposing others to risks and failing to confront fully some very real issues with predictable possible future consequences? Or, shall we blame government officials who let the issues go ? Or, shall we just let the topic unfold on its own, trusting that there will be an economic market-based solution ? Will that solution involve litigation funders? Multinational plaintiff's firms?
Will science save the victims ? In 5, 10 or 20 years, will cancer be a manageable disease? Curable? Always? Sometimes ? For some genomes, but not others? For some cancers, but not others? Will it all depend on when the disease is first spotted as having started at the cellular level?
Simply put, we are now at a time where intelligent, sentient beings are not able to credibly deny the foreseeability of the future issues that may arise. Judge Weinstein and others have plainly said that we in the US have collectively done a lousy job dealing with tort law issues. "Conservatives" blame the trial lawyers. The trial lawyers blame "greed" and purportedly "heartless" business persons. Academics ponder and write, some are great but too many lack a real understanding of the real world of business, science and the litigation industries that thrive on insurance claims and tort claims. Those industries, however, do not have all the answers, and so there is the quagmire known as chapter 11
Myriad former manufacturers and sellers of risky products (not just asbestos) are now in chapter 11, some due to actual insolvency caused by product liabilities and some because chapter 11 is a great place to use legal and financial engineering to dump problems and move ahead without the burden of the past. To that end, our nation's bankruptcy judges have issued rulings creating $ 30 billion or more of asbestos trusts. In the process, the bankruptcy judges hear evidence (very loosely speaking) and make rulings about future tort "liabilities" even though they have little or no clue about the real rules of each of the 50 state court tort systems and/or the realities of insurance claiming or paying, and also have little or no clue why state court tort claim settlements and trials turn out as they do. Too often, they do not even allow objectors to appear and they just "bless" deals cut by interested people, all making money from the outcome. Meanwhile, state court trial judges continue to march asbestos cases to trial despite having little or no idea of or regard for what may or should happen with the $ 20 billion still left in the trusts, and the billions more that will be added. And, virtually no one does or says much for companies that stay in business and are stuck paying the financial tab for deaths and injuries that in fact were caused by companies now sheltered by purportedly world-wide chapter 11 injunctions.
All these abstract issues really do matter and need better answers than we have today. But, the answers are not arriving. Why ? In part because the issues quickly become moot for a person dying from (avoidable) cancer. All they may want to do is try to live, or to die gracefully, perhaps leaving some money behind to support a dependent spouse or children. So, they victims say very little, and their lawyers include some good people, but they are busy looking for the next case and in any event are not really the spokespersons for the future victims.
Who really speaks for these foreseeable future claimants? No one, because their interests are in fact not well-served by today's "future's representatives." Why is that so (in my opinion), when the ranks of the futures representatives include some genuinely good, smart and compassionate individuals? The realistic answer includes many factors. One is that futures representatives are hopelessly conflicted between really sick people and the not so sick. (On this topic, see the Amchem decision, the many law reviews after it, and this great article by Plevin, Epley (now Davis) and Elgarten on the specifics of futures representative conflicts in asbestos bankruptcies) The futures representatives also hit conflicts due to the desire to reach certainty, today or "soon," despite the changes science will bring tomorrow. They also are outnumbered and out muscled. And, finally, the bankruptcy code gives them far too little power, and pays far too little attention to current or future science.
Global Context for Why the Issues Matter: On the last two Sundays, The Toronto Star has published an extended pair of articles (here and here) that are well worth reading as they cover in some detail the topics of increasing use of asbestos in India as a "developing country," and plans to export more asbestos fiber from Canada's Jeffrey Mine. The first article focuses on the growing use of asbestos cement to provide less expensive and "better" housing for people living in massive slums in India. The author, Jennifer Wells, candidly confronts the disparities between the "talking points" offered by the manufacturers and government as compared to the reality of actual working conditions in factories and the reality that there are no safeguards on use in the slums. She also points out that all of the warnings on the products are in languages other than Hindi. Ms. Wells also identifies the manufacturers and fiber suppliers.
The second article focuses on the issues regarding Canada's continuing export of chrysotile fiber, and plans to expand the exports from the Jeffrey Mine. The mine was formerly owned by Johns-Manville and has been in use for decades. According to the article, the open pit phase of mining is drawing to a close, but an underground mining phase is perhaps approaching fruition. The article includes some of the needed dialogue regarding the distinctions between the different asbestos fibers. Unfortunately, the article does not report on whether the "new" fiber to be mined has or has not been tested for "contamination" with amphibole fibers.
These article are yet another example of the issues that evolve as "developing" countries face opportunities and choices. In part, they face choices between current and future health risks, and the demands/pressures of industry and a vast population. They also face choices between the financial and health costs and risks encountered by people aspiring to "better" living conditions.
For those interested in more on the topic of banning asbestos, consider Laurie Kazan-Allen's website that documents her many years spent campaigning with others to ban asbestos use around the world. Ms. Kazan-Allen works through an organization known as the International Ban Asbestos Secretariat (IBAS). Ms. Kazan-Allen is the sister of an American asbestos plaintiff's lawyer, Steve Kazan. She has accomplished a great deal to limit the harms that can arise from asbestos use. She also has organized many groups of victims seeking medical care. legislation and/or compensation. The website contains a vast amount of information and is well worth the time to browse for anyone interested in the issues. The website also highlights a paper on and an upcoming conference opposed to asbestos use in Asia. In addition, Steve Kazan provides a website known as the World Asbestos Report.
Others, of course, would say IBAS goes too far in seeking to ban all use of all forms of asbestos. That position is well laid out in the Toronto Star's second article.
Unfortunately, there is no website focused on those who will have the future risk or disease, or the interests of the companies that will in the future pay bills for other companies.
Friday, December 25, 2009
Tuesday, December 22, 2009
Pursuing Passions and Dreams By Joining a New Law Firm and Expanding My Practice
With some regrets but also great excitement, I’ve decided to leave Butler Rubin Saltarelli & Boyd as of the end of the year. It’s been a great 10 years at BRS & B. The firm is full of great people and lawyers who’ve been very good to me, and that support continues even now. But, serendipity and other forces are at work, so I’ve decided to start 2010 by becoming a partner at Childress Duffy Goldblatt. Known as CDG, the firm is composed of 20 or so lawyers, with the main office in Chicago and significant offices in Florida. Further expansion is envisioned.
Like BRS & B, my new firm is mainly a litigation boutique, but happily also includes a small but strong transactional practice. CDG, however, will be different for me because the firm includes two long-time friends with some shared dreams, and CDG sues insurers instead of representing them. CDG also is very creative and open to new ideas and approaches. Thus, the partners are involved in litigation-related consultancies and prefer to share risks and rewards with clients and others through contingent fees, joint ventures, and other creative approaches.
Here’s the situation in a nutshell. I’m making this move:
• To pursue dreams in partnership with two great lawyers and friends I’ve known since law school and the first years of practice
• To continue my current commercial, mass tort and legacy liability work, but with materially greater flexibility to handle cases through alternative fee arrangements
• To help expand CDG’s practice representing both corporations and individuals with issues regarding insurance policies, including CGL, D & O, property, business interruption, health and other types of insurance policies
• To help expand the business of a related consulting company known as Risk Assessment & Transfer International, which provides pre-loss creation and archiving of critical evidence and documents, and consults on risk-related issues, including identifying emerging risks, spotting unseen risks inherent in old and new business structures, and negotiating specific policy language to avoid issues
• To help expand CDG’s contingent fee and/or pro bono practice suing insurers and others when insurance policies are illegally rescinded via “post-claim underwriting” or other unfair practices after submission of claims for expensive treatments for cancer or other diseases
• To use my passion for science and law to help expand CDG’s contingent fee and/or pro bono practice suing insurance companies or health care plans for individuals when they are denied medical treatments such as bone marrow transplants
As of January 3, the cell phone number stays the same, but my new office information will be:
Kirk T. Hartley
Childress Duffy Goldblatt
515 N. State Street – Suite 2200
Chicago, IL 60654
(Direct) 312-494-0206
(Fax) 312-494-0202
(Cell) 312-802-4471
khartley@cdglawyers.com
For those who may be interested, the following text further explains the reasons for my move to CDG, and explains more about its practices and our plans.
Creativity and Flexibility: The opportunity to join CDG is irresistible because it offers the opportunity to pursue dreams in partnership with two long-time friends, TJ Loucks and Mike Childress. TJ and I became friends in law school and were roommates for several years. TJ introduced me to Mike, and various adventures were shared during our younger days. Both TJ and Mike are great people and lawyers. Perhaps better yet, both like to dream, and are highly creative and flexible. Those characteristics are embedded in the firm’s DNA due to Mike founding the firm, and TJ being the Managing Partner.
CDG’s litigation focus of course meshes well with my twenty-five years in commercial, mass tort and legacy liability litigation. For commercial litigation, CDG’s flexibility is great because its lawyers have tried a wide range of commercial cases, and CDG offers greater flexibility to share risks through contingent fee and other alternative fee arrangements.
Insurance and Corporate Legacy Liability Issues: During the 25 years I’ve spent representing manufacturing conglomerates and individual corporations, a dominant factor always has been obtaining insurance monies or other sources of payment for defense and indemnity expenses for underlying “long tail torts.” I’ve also spent much time in negotiations, arbitrations and trials to resolve myriad “shared insurance” issues that arise from conglomerates, environmental claims and other long-tail tort claims. CDG offers significant new opportunities to more effectively pursue insurance-related issues for clients because CDG’s lawyers already are involved in a wide range of insurance coverage litigation against insurers, including obtaining coverage under CGL, D&O, property, business interruption, and other insurance policies. The firm’s lawyers also have great depth in pursuing bad faith claims. The expectation is that I will add value to CDG with my experience in and knowledge of “shared insurance” issues, coverage in place agreements, and issues regarding whether underlying defense counsel are allowed to exercise their independent judgment in defending underlying cases. We also expect to build on our mutual experiences with insurance insolvencies, run-offs, and solvent and insolvent schemes of arrangement.
We also expect to further build CDG’s significant national presence bringing claims for property owners that suffer heavy losses but are unable to obtain fair compensation through the insurance adjustment process. CDG’s clients are nationwide, and include Fortune 500 companies, commercial and residential property owners of buildings (e.g. condominiums, hotels) damaged by weather, as well as processing facilities and factories damaged by explosions, fires or other problems that interrupt business operations. CDG takes on these and other claims on a contingent fee or hourly fee basis. Named partner Mike Duffy loves to try cases anywhere, anytime, and I’m looking forward to teaming with Mike and the rest of the trial lawyers.
Risk Management and Consulting: CDG’s lawyers are well ahead of the curve in understanding the importance of risk management, and providing consulting services aimed at spotting and avoiding problems, as well as maximizing insurance recoveries when losses do occur. The consulting business, Risk Assessment & Transfer International, includes both non-lawyers and lawyers who advise on a wide range of risk management issues. For example, Risk’s consultants help identify risks that ordinarily might be missed, and help negotiate better language for some aspects of some insurance policies. Risk’s consultants also work with clients on pre-litigation record-creation and record-keeping needed in order to be prepared for disasters by already having built a file of trial-ready evidence. “Risk” also undertakes joint venture risk management programs with significant engineering and mechanical firms and other lawyers. The entire approach is broad in scope, which is refreshing and seems especially key in light today’s vastly increased focus on active, wide-ranging risk management. Hopefully, I will add value to Risk through my years of experience with issues arising from mass tort claims, m & a transactions, indemnification rights and obligations, conglomerates, and “shared insurance” issues, among other legacy liability issues. Risk consultants also will seek to educate clients about their rights with respect to insurance run-offs, insolvencies and schemes of arrangement.
Science and Disease: CDG also offers the opportunity to do more with my passion for science and law through advocacy for persons confronting cancer or other serious diseases. CDG already is involved in contingency fee and/or pro bono work for disease and disability victims when insurers rescind health care or other insurance policies, or refuse to approve or pay for needed therapy. CDG also is supporting new, related pro bono initiatives that will start in 2010. Although there are of course responsible insurers, I’m excited to join in asserting claims against irresponsible insurers and their actions because I’ve personally observed the physical and mental anguish caused by irresponsible actions blocking timely and proper care for individuals facing diseases such as cancer and Alzheimer’s. This area also is exciting because it’s plain there are enormous changes ahead for both health care and science, and it’s inevitable that new issues will divide insureds, hospitals, doctors and insurers, regardless of exactly how the effort ends with respect to federal health care legislation. To say the least, I’m enthusiastic about joining CDG’s teams working on existing and future cases for cancer patients and others, and look forward to involvement in new issues as science and law push forward.
Mass Torts, Due Process, Bankruptcies and Future Claimants: CDG’s practice areas also align with my personal focus on mass tort bankruptcy and mass tort settlement issues, including RAND’s important new study on asbestos bankruptcy trusts. The flexibility of CDG will provide additional opportunities to pursue my interests in working towards bankruptcies, class actions and insurance schemes and runoffs that actually achieve a fair and constitutional balancing of the rights and interests of all concerned, including the rights of current and future corporate and individual claimants against bankruptcy estates and related entities and insurers. In my view, today’s various types of proceedings too often proceed down unconstitutional paths that deprive current and future claimants of their property and due process rights.
Transactional Opportunities: CDG’s Joel Goldblatt is an excellent transactional lawyer with significant complimentary experience in related business litigation. It will be enjoyable to work with Joel and his team since that offers new possibilities for work with lawyers around the globe who are part of the International Business Law Consortium. The IBLC, as its known, is a global group of medium and small law firms around the world. I’ve been active in the IBLC for about 4 years, and very much enjoy working with lawyers around the world.
Thank You: I appreciate you taking the time to understand what’s ahead. In some ways, I’ll be the same lawyer staying heavily involved in areas I’ve enjoyed for 25 years. It’s exciting, though, to also look forward to adding new skills and hopefully finding new ways to assist a broader range of clients in new and emerging issues that keep tying back to the myriad intersections between corporate law, tort law, science, insurance, and bankruptcy law.
Saturday, December 19, 2009
Drug and Device Law - Top 10 Worst Cases from a Defense Perspective
The post is here. Well worth reading.
Wednesday, December 16, 2009
UK Government Still Pondering Whether to Reinstate Claiming for Pleural Plaques
The UK government continues to ponder a consultation posing questions including whether to reinstate tort claiming for pleural plaques and/or whether the government should make payments to all persons with plaques. The latest pronouncement from the UK government was made yesterday (12/15/09) and is here. The statement does not commit to a decision date. The original planned answer date was over a year ago.
For eight detailed, prior posts on the UK pleural plaques topic, look to the left for the category "pleural plaques." Here is a detailed opposition paper (37 pages) I submitted to the UK government outlining my view opposing payments for pleural plaques. The gist of the argument is that money and time is best spent supporting research to prevent, manage, or full cure cancer instead of making payments because of the presence of a marker (a pleural plaque) of past inhalation of asbestos fibers. Making payments for "markers" is unwise social policy because today's exploding science almost daily generates new data and finds new "markers" for past exposures. The markers include, for example, genetic changes caused by past exposures to various substances. The following two paragraphs from my submission provide specific examples of the growing prevalence of "markers."
"10.3 Scientific Journals Regarding Markers: Markers of past events and/or future risks
are now common enough that scientific journals are devoted specifically to the
discussion of markers for conditions and risks. Indeed, two of these journals are
sensibly known as Disease Markers and Cancer Biomarkers. See generally
http://www.iospress.nl/loadtop/load.php?isbn=02780240.
10.4 Exponential Increase In Genomic Testing: Thanks to continuing and
exponentially increasing advances in science, literally hundreds of tests are now
available to identify persons with genomic patterns that include a particular set of
characteristics that may mark a risk of future disease. According to one legal
commentator, “[a]s of August, 2007, there were 1300 facilities performing tests
relating to more than 700 genetic conditions, compared to 110 facilities and 111
conditions in 1993.” See generally Robert Milligan, Coverage and
Reimbursement for Pharmacogenomic Testing, 48 Jurimetrics The Journal of
Law, Science & Technology, No. 2, 137, 142 (Winter 2008) (Symposium: Law
and the New Era of Personalized Medicine). Thus, there is truly an exponential
rate to the increase in methods for and facilities involved in identifying “markers”
for potential risks.
For eight detailed, prior posts on the UK pleural plaques topic, look to the left for the category "pleural plaques." Here is a detailed opposition paper (37 pages) I submitted to the UK government outlining my view opposing payments for pleural plaques. The gist of the argument is that money and time is best spent supporting research to prevent, manage, or full cure cancer instead of making payments because of the presence of a marker (a pleural plaque) of past inhalation of asbestos fibers. Making payments for "markers" is unwise social policy because today's exploding science almost daily generates new data and finds new "markers" for past exposures. The markers include, for example, genetic changes caused by past exposures to various substances. The following two paragraphs from my submission provide specific examples of the growing prevalence of "markers."
"10.3 Scientific Journals Regarding Markers: Markers of past events and/or future risks
are now common enough that scientific journals are devoted specifically to the
discussion of markers for conditions and risks. Indeed, two of these journals are
sensibly known as Disease Markers and Cancer Biomarkers. See generally
http://www.iospress.nl/loadtop/load.php?isbn=02780240.
10.4 Exponential Increase In Genomic Testing: Thanks to continuing and
exponentially increasing advances in science, literally hundreds of tests are now
available to identify persons with genomic patterns that include a particular set of
characteristics that may mark a risk of future disease. According to one legal
commentator, “[a]s of August, 2007, there were 1300 facilities performing tests
relating to more than 700 genetic conditions, compared to 110 facilities and 111
conditions in 1993.” See generally Robert Milligan, Coverage and
Reimbursement for Pharmacogenomic Testing, 48 Jurimetrics The Journal of
Law, Science & Technology, No. 2, 137, 142 (Winter 2008) (Symposium: Law
and the New Era of Personalized Medicine). Thus, there is truly an exponential
rate to the increase in methods for and facilities involved in identifying “markers”
for potential risks.
Tuesday, December 15, 2009
The Supreme Court Takes Unusual Action on Chrysler - Future Tort Impact Requires Some Thought
The Supreme Court acted in unusual fashion yesterday on Chrysler, and the actions create some issues that need further thought as to their implications for underlying tort claimants and for due process. Specifically, in this order, the Court granted certiorari, but then immediately vacated the judgment and AND vacated as moot the Second Circuit's opinion that explained its reasons for affirming the district court. The Second Circuit's opinion was germane to mass tort claims and due process because of its language to the effect that future tort claimants would not be bound by the bankruptcy court rulings. See below for the exact wording of the order.
I'll readily admit that I'm not a Supreme Court scholar. That said, this all seems rather odd, and makes one wonder about the motivations and thoughts behind these actions. Are these actions unique to the odd facts and pressures of Chrysler? Are the actions related to Justice Robert's avowed interest in making a name for this Court by taking and resolving more "business issues" ? Do these actions in any way reflect hat the Court thinks it learned or held about bankruptcy court finality in its Travelers/Manville bankruptcy case ruling that remanded the Manville case back to the Second Circuit for further proceedings (which have been briefed and argued)?
I look forward to learning what others think. I think this means that everyone is now back to lower court orders which also include language suggesting that future claimants are not bound. For now, with a hat tip, here are excerpts from the commentary on LAW360, with quotes from Chrysler's counsel:
“The order makes clear the case is over,” attorney Todd R. Geremia of Jones Day, which represents the Chrysler debtors, said Monday. “There's nothing for another day.”
The high court's ruling vacated a 53-page ruling in the Second Circuit affirming the sale as legal under the Bankruptcy Code but declining “to delineate the scope of the bankruptcy court’s authority to extinguish future claims” until a claim for injury caused by Old Chrysler could be brought under successor liability law.
While the court vacated the Second Circuit ruling, it did not necessarily disagree with it. The court invoked a precedent from a case known as United States v. Munsingwear Inc. that allows it simply to vacate and remand cases that become moot on their way up.
“Nothing in this order today reflects any disagreement with the Second Circuit,” Geremia said. “It's an order that arises from the application of Munsingwear.”
_________________________________________________________________________________
The Supreme Court's order states:
" IN POLICE PENSION TRUST, ET AL. V. CHRYSLER LLC, ET AL.
The motion of Washington Legal Foundation, et al. for leave
to file a brief as amici curiae is granted. The petition for a
writ of certiorari is granted. The judgment is vacated, and the
case is remanded to the United States Court of Appeals for the
Second Circuit with instructions to dismiss the appeal as moot.
See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
I'll readily admit that I'm not a Supreme Court scholar. That said, this all seems rather odd, and makes one wonder about the motivations and thoughts behind these actions. Are these actions unique to the odd facts and pressures of Chrysler? Are the actions related to Justice Robert's avowed interest in making a name for this Court by taking and resolving more "business issues" ? Do these actions in any way reflect hat the Court thinks it learned or held about bankruptcy court finality in its Travelers/Manville bankruptcy case ruling that remanded the Manville case back to the Second Circuit for further proceedings (which have been briefed and argued)?
I look forward to learning what others think. I think this means that everyone is now back to lower court orders which also include language suggesting that future claimants are not bound. For now, with a hat tip, here are excerpts from the commentary on LAW360, with quotes from Chrysler's counsel:
“The order makes clear the case is over,” attorney Todd R. Geremia of Jones Day, which represents the Chrysler debtors, said Monday. “There's nothing for another day.”
The high court's ruling vacated a 53-page ruling in the Second Circuit affirming the sale as legal under the Bankruptcy Code but declining “to delineate the scope of the bankruptcy court’s authority to extinguish future claims” until a claim for injury caused by Old Chrysler could be brought under successor liability law.
While the court vacated the Second Circuit ruling, it did not necessarily disagree with it. The court invoked a precedent from a case known as United States v. Munsingwear Inc. that allows it simply to vacate and remand cases that become moot on their way up.
“Nothing in this order today reflects any disagreement with the Second Circuit,” Geremia said. “It's an order that arises from the application of Munsingwear.”
_________________________________________________________________________________
The Supreme Court's order states:
" IN POLICE PENSION TRUST, ET AL. V. CHRYSLER LLC, ET AL.
The motion of Washington Legal Foundation, et al. for leave
to file a brief as amici curiae is granted. The petition for a
writ of certiorari is granted. The judgment is vacated, and the
case is remanded to the United States Court of Appeals for the
Second Circuit with instructions to dismiss the appeal as moot.
See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).
Saturday, December 12, 2009
Mass Tort Claiming and Resolution - Lots of Great Posts and Links at the Mass Tort Litigation Blog
At the blog, you will find lots of interesting thinking and writing, including open-minded thinking on where we are and what's ahead. Specifically, lots of defense side people today are busy praising and/or asking for the demise of tort-related class actions. That may be a great outcome to preclude "greenmail" settlements forced simply by the size of an aggregated risk, as Judge Posner explained years ago in the Rhone-Poulenc litigation. But as a couple of the posts point out, the world outside class actions may be worse as companies take repeated, major hits in individual cases. Thus, smoking verdicts post-Engle and two recent Prempro verdicts are examples presented in recent posts. On the human side, real people face horrible diseases that can bring intense suffering, mental and physical disability, and death.
What about individual trials - is that the answer ? Not really, for many reasons for both sides. Indeed, the individual trial process drives Wall Street and companies crazy because they want predictable cash flow, but they cannot obtain consistency with myriad trials. The result ? Stock price goes way down, and so management looks for a way to get back to cash flow certainty. Chapter 11 often becomes the answer, and that's a mixed bag at best. Today, all sides (plaintiffs, futures representatives, defendants, and insurers, plus judges) are involved in creating some real public policy travesties in chapter 11 asbestos bankruptcies. Why ?Because for many reasons, the various sides mainly take short-term views and do what's expedient to get to a resolution "for this case."
Huge new issues are ahead. Why ? For one, tort litigation is exploding around the globe, and will continue to do so as nations develop. Meanwhile, as science continues to move at a blistering pace, more and more causes and effects can be proven at the cellular level. Tragically, many cancer rates (not cancer death rates, but rates of disease) are soaring here in the US and around the globe. In addition, scientists are finding more problems, such as chemical-induced endocrine system disruption, and chemical-induced genomic changes that cause harms across multiple generations of humans and animals. Over time, there will be many more succesful claims for medical monitoring. And, now that science is exploding with new tools and new answers, the monitoring claims will result in requests for funds to pay for new research, and/or to pay for individual genomic therapy. Those payments will be large, but may less expensive than paying for intense suffering followed by disability or death. In short, over the next 20 years, there will be massive claims for massive injuries, and courts will be asked to resolve issues regarding whether there is "liability" (however that is defined), and will be asked to decide what to do when liability is proven or claims are settled.
So, that takes this all back to where this post started. If you want to look ahead in the world of mass torts, spend some time pondering some of the great posts and links at the Mass Tort blog. The blog is here. Enjoy.
Friday, December 11, 2009
Eternit Trial Has Opened in Italy - Civil and Criminal Charges Related to Asbestos-Cement Manufacturing
Trial is now underway in Italy on combined civil and criminal charges regarding senior corporate officials of Eternit allegedly having recklessly disregarded health risks related to asbestos. The charges and claims involve injuries or premature deaths suffered by about 2.200 employees or former employees. Eternit entities manufactured a range of asbestos-cement products.
A BBC article is here. Swiss articles are here and here.
For prior posts on the topic, look to the left to the topic line for "Eternit."
A BBC article is here. Swiss articles are here and here.
For prior posts on the topic, look to the left to the topic line for "Eternit."
Wednesday, December 9, 2009
Non-Obvious Issues Arising from Corporate Problems and Subsequent Statements About the Scope/Impact of the Problem
Risk managers and lawyes have to think even more about divergent types of fallout from a corporate problems. The point is illustrated by this great post from Kevin LaCroix at D & O Diary. in the post, he airs various non-obvious liability, risk and D & O issues rising from Siemen's problems with corporate bribery. One of the non-obvious problems is a subsequent securities suit that arose from later statements by Siemens about the revenue impacts that would or would not follow from stopping the use of bribery.
Propensity to Claim - By the Government - What's Ahead ?
Lawyers thinking about mass tort policy and legal issues inevitably end up thinking and talking about private claimants and their propensity to claim. A growing topic today is the federal government's propensity to claim.
During the Bush II years, much of corporate America had little fear regarding civil or criminal claims from the US government. Now, however, that is changing, and one might well wonder about the larger implications for tort and other claims. Look for example at the federal government's activities this week, and consider the implications for future civil claims.
On Monday, the SEC continued its assault on the business methods of subprime mortgage lenders. It charged "three former top officers of New Century Financial Corporation with securities fraud for misleading investors as New Century's subprime mortgage business was collapsing in 2006. At the time of the fraud, New Century was one of the largest subprime lenders in the nation." The SEC's press release and teh charges are here.
On Tuesday, as reported here by Ben Hallman from AmLAw, the goverment made plain that it has problem with the business model for "a lot of hedge funds." Specifically, a securities litigation conference included the following comments by David Rosenfeld, the associate regional director of the SEC's New York office:
Rosenfeld said that insider trading, after a downturn over the past two decades, "has come back in force." Rosenfeld described what his agency was seeing as more than one-off, opportunistic activity, but a "determined business" based upon collecting information from corporate insiders. He said his agency is "aggressively pursuing" these bad actors, and he specifically singled out hedge funds. "A lot of hedge funds have been making huge returns because they were cheating," he said. (emphasis added)
How many future civil suits will result from these charges and investigations? I'm sure I don't know. I'm also sure that I would be looking afresh at my litigation and regulatory risks if I were a general counsel working in those industries.
During the Bush II years, much of corporate America had little fear regarding civil or criminal claims from the US government. Now, however, that is changing, and one might well wonder about the larger implications for tort and other claims. Look for example at the federal government's activities this week, and consider the implications for future civil claims.
On Monday, the SEC continued its assault on the business methods of subprime mortgage lenders. It charged "three former top officers of New Century Financial Corporation with securities fraud for misleading investors as New Century's subprime mortgage business was collapsing in 2006. At the time of the fraud, New Century was one of the largest subprime lenders in the nation." The SEC's press release and teh charges are here.
On Tuesday, as reported here by Ben Hallman from AmLAw, the goverment made plain that it has problem with the business model for "a lot of hedge funds." Specifically, a securities litigation conference included the following comments by David Rosenfeld, the associate regional director of the SEC's New York office:
Rosenfeld said that insider trading, after a downturn over the past two decades, "has come back in force." Rosenfeld described what his agency was seeing as more than one-off, opportunistic activity, but a "determined business" based upon collecting information from corporate insiders. He said his agency is "aggressively pursuing" these bad actors, and he specifically singled out hedge funds. "A lot of hedge funds have been making huge returns because they were cheating," he said. (emphasis added)
How many future civil suits will result from these charges and investigations? I'm sure I don't know. I'm also sure that I would be looking afresh at my litigation and regulatory risks if I were a general counsel working in those industries.
Tuesday, December 8, 2009
Multinational Product Liability Defendant Must Search Broadly or Move for Protective Order
Here is a paper from Perkins Coie on a Washington Supreme Court opinion approving an $ 8 million judgment entered against Hyundai as a discovery sanction for failing to reveal prior claims involving the same seat at issue in this case. (The link is to Mondaq - registration required; the article does not yet seem to be on the Perkins Coie website). The case name is Magana v. Hyundai Motor Am. The majority opinion is here, and a dissent is here.
Set out below are the paper's summary of the key points from the opinion - note especially the first and second bullet points.
Set out below are the paper's summary of the key points from the opinion - note especially the first and second bullet points.
"At least three things are worth noting about this decision.
- First, the Court held that Hyundai was required to search more than just its legal department's records for information responsive to the plaintiff's discovery requests. (In the trial court, Hyundai had tried to defend its limited initial search for responsive information on the ground that searching beyond the legal department "would have taken an extensive computer search.") The trial court, in fact, held that, as "a sophisticated multinational corporation, experienced in litigation," Hyundai "had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests." (Emphasis added.)
- Second, the Court held that Hyundai's objections to the plaintiff's discovery requests did not entitle Hyundai to respond only to the limited extent that the company did respond. Instead, the Court held, Hyundai was required to ask the trial court for a protective order excusing the company from responding to the plaintiffs' discovery requests as written. The civil rules have required this step for some time, unless the parties have agreed to narrow the applicable discovery requests. Magana shows that failing to comply with the requirement can have very serious consequences.
- Finally, a default judgment would not always be appropriate for failure to respond fully to discovery. In upholding this extreme sanction in the Magana case, the Court referred to the "unique facts and circumstances" of the case, and two dissenting justices argued that even on these facts, a lesser sanction was more appropriate. All of the justices agreed, however, that Hyundai's conduct merited sanctions. The decision thus serves as a dramatic reminder that trying to "game" the discovery process is a decidedly perilous undertaking in Washington"
Sunday, December 6, 2009
Watch on Monday for A. M. Best Findings and Projections on Asbestos and Environmental Losses
This article from Business Insurance overviews points from an A.M. Best study to be released on Monday with data and projections on losses from asbestos and pollution claims. Here are some excerpts from the Business Insurance advance article:
"Best estimates the industry’s ultimate asbestos and environmental losses will reach $117 billion, down from a previous estimate of $121 billion. Asbestos exposures, however, are projected to reach $75 billion, up $10 billion from a previous estimate; environmental exposures are projected to drop to $42 billion from a previously estimated $55 billion. (emphasis added)
Saturday, December 5, 2009
Stanford Law School Global Class Action Exchange - Online Source for Global Class Action Research
Stanford Law School and Professor Deborah Hensler offer a significant online resource with numerous papers on class action practice around the globe. The resource is titled the Global Class Action Exchange. The website is here. The text of the "About" section is pasted below because it provides an overview.
"About
The Global Class Actions Exchange is an outgrowth of an international conference on the worldwide spread of class actions, group proceedings and other forms of collective litigation that was held in Oxford, England in December 2007. The conference was co-sponsored by Stanford Law School and the Oxford Centre for Socio-Legal Studies and funded by the American Academy of Political and Social Sciences and Stanford Law School, with additional support from individuals, law firms and the business sector in the US and Europe. Participants in the conference were eager to share information about developments in their countries and to establish a network of academicians, judges and lawyers interested in class actions and group litigation to whom they and others could turn for advice on these developments. We established this Clearinghouse in response. The Clearinghouse is directed by Prof. Deborah Hensler of Stanford Law School, who co-organized the 2007 conference with Dr. Christopher Hodges of the Oxford Centre for Socio-Legal Studies.
The Global Class Actions Exchange currently includes country reports and other materials prepared for the 2007 conference; statutes, rules and important cases related to class actions and group litigation; academic and other commentary on global developments regarding class actions; contact information for legal analysts and practitioners who research or practice in the class action or group litigation area; and news of conferences and other events of interest to scholars and practitioners.
If you would like to contribute material for the Global Class Actions Exchange, please contact Deborah Hensler at dhensler@stanford.edu.
"About
The Global Class Actions Exchange is an outgrowth of an international conference on the worldwide spread of class actions, group proceedings and other forms of collective litigation that was held in Oxford, England in December 2007. The conference was co-sponsored by Stanford Law School and the Oxford Centre for Socio-Legal Studies and funded by the American Academy of Political and Social Sciences and Stanford Law School, with additional support from individuals, law firms and the business sector in the US and Europe. Participants in the conference were eager to share information about developments in their countries and to establish a network of academicians, judges and lawyers interested in class actions and group litigation to whom they and others could turn for advice on these developments. We established this Clearinghouse in response. The Clearinghouse is directed by Prof. Deborah Hensler of Stanford Law School, who co-organized the 2007 conference with Dr. Christopher Hodges of the Oxford Centre for Socio-Legal Studies.
The Global Class Actions Exchange currently includes country reports and other materials prepared for the 2007 conference; statutes, rules and important cases related to class actions and group litigation; academic and other commentary on global developments regarding class actions; contact information for legal analysts and practitioners who research or practice in the class action or group litigation area; and news of conferences and other events of interest to scholars and practitioners.
If you would like to contribute material for the Global Class Actions Exchange, please contact Deborah Hensler at dhensler@stanford.edu.
Friday, December 4, 2009
Litigation Stays and Overseas "Bankruptcy" Proceedings
Using bankruptcy code chapters 11 and 15 to avoid litigation is not quite as easy as some might think, as illustrated by an order that is here and is described in the LAW 360 article below.
Law360, New York (December 03, 2009) -- A federal judge has ruled that a London-based fur broker that filed the equivalent of bankruptcy in the U.K. can't stay a bid-rigging suit in the U.S. without first petitioning for recognition of the U.K. insolvency proceedings under Chapter 15.
Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington rejected Fein & Co.'s motion to stay the putative antitrust class action Wednesday, saying the fur broker hasn't shown that it can't file Chapter 15.
The fur broker had argued in a Nov. 3 motion that comity necessitated the district court to stay the antitrust suit against Fein as it would have if the company had filed for bankruptcy in the U.S.
Meanwhile, the two mink fur producers who filed the action accusing Fein and other fur brokers of bid-rigging said an entity going through insolvency proceedings outside the U.S. can obtain relief here only through Chapter 15.
Siding with the plaintiffs, Judge Martinez said Chapter 15 "has provided a specific structure for addressing cross-border insolvencies, together with appropriate remedies."
The Washington court will consider granting Fein relief if it receives Chapter 15 relief in the U.S., he added. "Until that time," he said, "the court declines to stay these proceedings."
The plaintiffs, Wanechek Mink Ranch and Smith Mink Ranch Corp., alleged that between 2000 and 2004, the defendants engaged in a bid-rigging scheme that depressed the prices the plaintiffs and other mink fur producers were paid for their furs at auctions.
In addition to Fein, some of the other fur brokers named in the case include Delta Trading Corp., Klondike International Furs Ltd. and Alaska Brokerage International Inc.
The defendants moved to dismiss the case in November 2008, but Judge Martinez refused to do so in early May.
Following the U.S. Supreme Court's landmark ruling in Iqbal v. Ashcroft in May, the brokers asked the court to dismiss the action again, this time saying it didn't meet the heightened pleading standard laid out by the high court.
The brokers noted that in the court's May 5 order declining to dismiss the case, it pointed to repeated statements in the complaint that the defendants “agreed” to a bid-rigging scheme as well-pleaded allegations.
“The Ashcroft case puts to rest any lingering notion after Twombly that such allegations are sufficient,” the defendants said. “If all it takes to state an antitrust claim is to write the words 'they agreed,' no claim would fail under Rule 8.”
The U.S. Department of Justice launched an investigation into anti-competitive practices among fur brokers in 2004. In 2006 Alaska Brokerage was indicted, and an individual broker pleaded guilty to a conspiracy charge. The company was fined $30,000.
Attorneys for both sides didn't immediately return calls for comment Thursday.
Plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, Kohn Swift & Graf PC, Preti Flaherty Beliveau & Pachios LLP, Barrack Rodos & Bacine, Berger & Montague PC, Weinstein Kitchenoff & Asher LLC and Langer & Grogan PC.
Defendants are represented by Byrnes & Keller LLP, Wilson Smith Cochran Dickerson, Stoel Rives LLP and Yarmuth Wilsdon Calfo PLLC.
The case is Wanechek Mink Ranch and Smith Mink Ranch Corp., on behalf of themselves and all others similarly situated, v. Alaska Brokerage International Inc., case number 06-cv-00089, in the U.S. District Court for the Western District of Washington.
Law360, New York (December 03, 2009) -- A federal judge has ruled that a London-based fur broker that filed the equivalent of bankruptcy in the U.K. can't stay a bid-rigging suit in the U.S. without first petitioning for recognition of the U.K. insolvency proceedings under Chapter 15.
Judge Ricardo S. Martinez of the U.S. District Court for the Western District of Washington rejected Fein & Co.'s motion to stay the putative antitrust class action Wednesday, saying the fur broker hasn't shown that it can't file Chapter 15.
The fur broker had argued in a Nov. 3 motion that comity necessitated the district court to stay the antitrust suit against Fein as it would have if the company had filed for bankruptcy in the U.S.
Meanwhile, the two mink fur producers who filed the action accusing Fein and other fur brokers of bid-rigging said an entity going through insolvency proceedings outside the U.S. can obtain relief here only through Chapter 15.
Siding with the plaintiffs, Judge Martinez said Chapter 15 "has provided a specific structure for addressing cross-border insolvencies, together with appropriate remedies."
The Washington court will consider granting Fein relief if it receives Chapter 15 relief in the U.S., he added. "Until that time," he said, "the court declines to stay these proceedings."
The plaintiffs, Wanechek Mink Ranch and Smith Mink Ranch Corp., alleged that between 2000 and 2004, the defendants engaged in a bid-rigging scheme that depressed the prices the plaintiffs and other mink fur producers were paid for their furs at auctions.
In addition to Fein, some of the other fur brokers named in the case include Delta Trading Corp., Klondike International Furs Ltd. and Alaska Brokerage International Inc.
The defendants moved to dismiss the case in November 2008, but Judge Martinez refused to do so in early May.
Following the U.S. Supreme Court's landmark ruling in Iqbal v. Ashcroft in May, the brokers asked the court to dismiss the action again, this time saying it didn't meet the heightened pleading standard laid out by the high court.
The brokers noted that in the court's May 5 order declining to dismiss the case, it pointed to repeated statements in the complaint that the defendants “agreed” to a bid-rigging scheme as well-pleaded allegations.
“The Ashcroft case puts to rest any lingering notion after Twombly that such allegations are sufficient,” the defendants said. “If all it takes to state an antitrust claim is to write the words 'they agreed,' no claim would fail under Rule 8.”
The U.S. Department of Justice launched an investigation into anti-competitive practices among fur brokers in 2004. In 2006 Alaska Brokerage was indicted, and an individual broker pleaded guilty to a conspiracy charge. The company was fined $30,000.
Attorneys for both sides didn't immediately return calls for comment Thursday.
Plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, Kohn Swift & Graf PC, Preti Flaherty Beliveau & Pachios LLP, Barrack Rodos & Bacine, Berger & Montague PC, Weinstein Kitchenoff & Asher LLC and Langer & Grogan PC.
Defendants are represented by Byrnes & Keller LLP, Wilson Smith Cochran Dickerson, Stoel Rives LLP and Yarmuth Wilsdon Calfo PLLC.
The case is Wanechek Mink Ranch and Smith Mink Ranch Corp., on behalf of themselves and all others similarly situated, v. Alaska Brokerage International Inc., case number 06-cv-00089, in the U.S. District Court for the Western District of Washington.
New Science, TSCA, and Chemical Regulation
Here's a pop quiz. Out of 83,000 or so chemicals, how many chemicals or chemical classes has EPA regulated under TSCA ?
1,103 ?
5,279?
9,867 ?
Drum roll please -the answer is:
5 ( I did not forget any numbers).
Surprised ? Me too. But that's what you learn when you read this post on the Mass Tort Defense blog and/or then go read the December 2, 2009 testimony of John Stephenson, GAO, Director, Natural Resources and Environment . He said, at 9, " In fact, since Congress passed TSCA in 1976—over 33 years
ago—EPA has issued TSCA regulations on only five existing chemicals or chemical classes.")
That result seems especially pathetic when one considers that the EU is busy implementing its comprehensive REACH program of chemical regulation, explained here by the EU.
Will things change here ? That's not my area of expertise, so I will not offer a prediction. But, the testimony also is noteworthy for its focus on how science is now focused on cellular level events and so the dependence on epidemiology is lessening. The topic was covered by Linda Birnbaum, Ph.D., Director, National Institute of Environmental Health Sciences, National Institutes of Health, andDirector, National Toxicology Program, U.S. Department of Health and Human Services. Pasted below are some key excerpts from her testimony, beginning with the conclusion:
"We are poised to move forward into an era of a new kind of toxicological testing that is less expensive and also gives us an improved understanding of the actual effects on humans. Toxicology is advancing from a mostly observational science using disease-specific models to a better predictive science focused upon a broad inclusion of target-specific, mechanism-based, biological observations. This means using alternative assays targeting the key pathways, molecular events, or processes linked to disease or injury, and incorporating them into a research and testing framework. The NTP is laying the foundation for this testing paradigm in partnership with the National Human Genome Research Institute and the EPA. They are using quantitative high throughput screening assays to test a large number of chemicals. The resulting data are being deposited into publicly accessible relational databases. Analyses of these results will set the stage for a new framework for toxicity testing. (emphasis added)
She also said:
"Environmental health science has made tremendous strides since the original passage of the Toxic Substances Control Act, or TSCA. Our understanding of chemical toxicity has been challenged by the new science of epigenetics, which is the study of changes to the packaging of the DNA molecules that influence the expression of genes, and hence the risks of diseases and altered development. Studies indicate that exposures that cause epigenetic changes can affect several generations. This new understanding heightens the need to protect people at critical times in their development when they are most vulnerable to this kind of toxicity. (emphasis added)
The concept of “windows of susceptibility” is an important area. Research has revealed the heightened vulnerability of fetal, infant and child developmental processes to disruption from relatively low doses of certain chemicals. Established first for neurodevelopmental toxicants like PCBs, and lead and other metals, this concept also applies to hormonally active agents (endocrine disrupting chemicals). In our NIEHS Breast Cancer and Environment Research Program, co-funded with the National Cancer Institute, researchers are investigating whether periods of susceptibility exist in the development of the mammary gland, when exposures to environmental agents may impact the breast and endocrine systems that can influence breast cancer risk in adulthood.
***
There are other susceptibilities to consider. For some types of chemicals and health effects, there may be excess risk from specific genes or chronic diseases. For example, the level of a person’s risk of bladder cancer from smoking has been shown to depend in part on whether or not that individual’s genome contains variants in specific detoxification enzymes. The existence of these subtle variations in susceptibility must be factored into overall toxicity assessments.
Scientists believe that other chemicals such as some PCBs and furans may cause cancer in a similar manner. The question for public health officials was how health standards could be adjusted to take into account the fact that people are always exposed to mixtures of dioxin-like compounds, not just one at a time.
To address this problem, a large body of work led to the development of a method to estimate toxicity of mixtures of dioxin-like compounds based upon toxic equivalency factors, or TEFs. To estimate the overall toxicity of a mixture, the contaminants’ weighted contributions are added together, adjusting for the fact that some compounds are more toxic than others. The additive methodology has been tested and confirmed by studies done by the NTP, EPA, and others. TEF methodology has also been extended to other health endpoints, including reproductive and developmental, immune, and neurological.
Differences in routes of exposure must also be considered. For example, hexavalent chromium compounds have been shown to cause lung cancer in humans when inhaled, but it was not known how these compounds behaved when ingested. Hexavalent chromium was tested by the NTP because of concerns over its presence in drinking water. The NTP studies showed that a compound containing hexavalent chromium causes cancer in laboratory animals following oral administration in drinking water, confirming the need to protect people from oral routes of exposure."
1,103 ?
5,279?
9,867 ?
Drum roll please -the answer is:
5 ( I did not forget any numbers).
Surprised ? Me too. But that's what you learn when you read this post on the Mass Tort Defense blog and/or then go read the December 2, 2009 testimony of John Stephenson, GAO, Director, Natural Resources and Environment . He said, at 9, " In fact, since Congress passed TSCA in 1976—over 33 years
ago—EPA has issued TSCA regulations on only five existing chemicals or chemical classes.")
That result seems especially pathetic when one considers that the EU is busy implementing its comprehensive REACH program of chemical regulation, explained here by the EU.
Will things change here ? That's not my area of expertise, so I will not offer a prediction. But, the testimony also is noteworthy for its focus on how science is now focused on cellular level events and so the dependence on epidemiology is lessening. The topic was covered by Linda Birnbaum, Ph.D., Director, National Institute of Environmental Health Sciences, National Institutes of Health, andDirector, National Toxicology Program, U.S. Department of Health and Human Services. Pasted below are some key excerpts from her testimony, beginning with the conclusion:
"We are poised to move forward into an era of a new kind of toxicological testing that is less expensive and also gives us an improved understanding of the actual effects on humans. Toxicology is advancing from a mostly observational science using disease-specific models to a better predictive science focused upon a broad inclusion of target-specific, mechanism-based, biological observations. This means using alternative assays targeting the key pathways, molecular events, or processes linked to disease or injury, and incorporating them into a research and testing framework. The NTP is laying the foundation for this testing paradigm in partnership with the National Human Genome Research Institute and the EPA. They are using quantitative high throughput screening assays to test a large number of chemicals. The resulting data are being deposited into publicly accessible relational databases. Analyses of these results will set the stage for a new framework for toxicity testing. (emphasis added)
She also said:
"Environmental health science has made tremendous strides since the original passage of the Toxic Substances Control Act, or TSCA. Our understanding of chemical toxicity has been challenged by the new science of epigenetics, which is the study of changes to the packaging of the DNA molecules that influence the expression of genes, and hence the risks of diseases and altered development. Studies indicate that exposures that cause epigenetic changes can affect several generations. This new understanding heightens the need to protect people at critical times in their development when they are most vulnerable to this kind of toxicity. (emphasis added)
The concept of “windows of susceptibility” is an important area. Research has revealed the heightened vulnerability of fetal, infant and child developmental processes to disruption from relatively low doses of certain chemicals. Established first for neurodevelopmental toxicants like PCBs, and lead and other metals, this concept also applies to hormonally active agents (endocrine disrupting chemicals). In our NIEHS Breast Cancer and Environment Research Program, co-funded with the National Cancer Institute, researchers are investigating whether periods of susceptibility exist in the development of the mammary gland, when exposures to environmental agents may impact the breast and endocrine systems that can influence breast cancer risk in adulthood.
***
There are other susceptibilities to consider. For some types of chemicals and health effects, there may be excess risk from specific genes or chronic diseases. For example, the level of a person’s risk of bladder cancer from smoking has been shown to depend in part on whether or not that individual’s genome contains variants in specific detoxification enzymes. The existence of these subtle variations in susceptibility must be factored into overall toxicity assessments.
Scientists believe that other chemicals such as some PCBs and furans may cause cancer in a similar manner. The question for public health officials was how health standards could be adjusted to take into account the fact that people are always exposed to mixtures of dioxin-like compounds, not just one at a time.
To address this problem, a large body of work led to the development of a method to estimate toxicity of mixtures of dioxin-like compounds based upon toxic equivalency factors, or TEFs. To estimate the overall toxicity of a mixture, the contaminants’ weighted contributions are added together, adjusting for the fact that some compounds are more toxic than others. The additive methodology has been tested and confirmed by studies done by the NTP, EPA, and others. TEF methodology has also been extended to other health endpoints, including reproductive and developmental, immune, and neurological.
Differences in routes of exposure must also be considered. For example, hexavalent chromium compounds have been shown to cause lung cancer in humans when inhaled, but it was not known how these compounds behaved when ingested. Hexavalent chromium was tested by the NTP because of concerns over its presence in drinking water. The NTP studies showed that a compound containing hexavalent chromium causes cancer in laboratory animals following oral administration in drinking water, confirming the need to protect people from oral routes of exposure."
Interesting Posts at Nudge, Including Old Tobacco Ad
One of the best books I read last year was Nudge by Profs. Thaler and Sunstein, so I try to follow their ongoing Nudge blog. A post this week includes links to some interesting wesbsite on "greenwashing," "and a picture of a priceless old tobacco ad. Ads of that sort matter in some law suits today because some young jurors today have no idea why people ever smoked.
Thursday, December 3, 2009
Risk Analysis Symposium - Topics Include "Sponsored Research," Nanoparticle Risks, and Carcinogen Issues
A hat tip to David Zaring at The Conglomerate for this post that covers some interesting ground regarding "risk" issue, including regulatory issues and issues regarding product liability and other tort claims. One part of the post also covers a new book on the safety - or lack of safety - of imports into the US
Of perhaps greatest interest, the post educated me to an upcoming (Dec. 6-9) seminar in Baltimore by The Society for Risk Analysis. The conference agenda is here. If you see an interesting item on the agenda, you can click through links on the left side to see detailed abstracts of presentations. Some are of potential global note as they address issues regarding the use of "sponsored" research, risks of nanoparticles (some are said to be be more toxic than asbestos fibers in some settings) and on whether formaldehyde is a carcinogen. To whet your interest, pasted below is the text of one abstract regarding sponsored research:
"M2-E 10:30 AM-Noon Research Funding and Scientific Integrity: Conflicts and Criteria
M2-E.1 10:30 Proposed consensus criteria for assessing the reliability of scientific work. Conrad, Jr. JW*; Conrad Law & Policy Counsel jamie@conradcounsel.com
Abstract: Ultimately, the merits of scientific research findings are judged by the extent to which they are reproduced by other scientists. Such replication can take years, and what constitutes replication in a given case may be disputable for some time. Consequently, the scientific community has developed a variety of shorter-term approaches for assessing scientific work. Some of these approaches are designed to evaluate the validity and significance of the work, particularly in comparison to other studies addressing the same question. (These approaches are frequently termed “weight of evidence” approaches.) Other approaches are addressed to the more limited, but still vitally important, task of evaluating the reliability of the work against concerns that the results may be the product of error or may have been consciously or unconsciously influenced by conflicting interests or biases of the investigator. Some of these latter approaches have become well-established (e.g., peer review, disclosure of competing interests); others are not yet widely accepted (e.g., public registries of proposed research, free access to underlying data). This presentation will survey the approaches being suggested and will propose a set of criteria that, if they became conventionally accepted, would allow all concerned to have confidence in the reliability of scientific work regardless of who conducted or funded it. "
Of perhaps greatest interest, the post educated me to an upcoming (Dec. 6-9) seminar in Baltimore by The Society for Risk Analysis. The conference agenda is here. If you see an interesting item on the agenda, you can click through links on the left side to see detailed abstracts of presentations. Some are of potential global note as they address issues regarding the use of "sponsored" research, risks of nanoparticles (some are said to be be more toxic than asbestos fibers in some settings) and on whether formaldehyde is a carcinogen. To whet your interest, pasted below is the text of one abstract regarding sponsored research:
"M2-E 10:30 AM-Noon Research Funding and Scientific Integrity: Conflicts and Criteria
M2-E.1 10:30 Proposed consensus criteria for assessing the reliability of scientific work. Conrad, Jr. JW*; Conrad Law & Policy Counsel jamie@conradcounsel.com
Abstract: Ultimately, the merits of scientific research findings are judged by the extent to which they are reproduced by other scientists. Such replication can take years, and what constitutes replication in a given case may be disputable for some time. Consequently, the scientific community has developed a variety of shorter-term approaches for assessing scientific work. Some of these approaches are designed to evaluate the validity and significance of the work, particularly in comparison to other studies addressing the same question. (These approaches are frequently termed “weight of evidence” approaches.) Other approaches are addressed to the more limited, but still vitally important, task of evaluating the reliability of the work against concerns that the results may be the product of error or may have been consciously or unconsciously influenced by conflicting interests or biases of the investigator. Some of these latter approaches have become well-established (e.g., peer review, disclosure of competing interests); others are not yet widely accepted (e.g., public registries of proposed research, free access to underlying data). This presentation will survey the approaches being suggested and will propose a set of criteria that, if they became conventionally accepted, would allow all concerned to have confidence in the reliability of scientific work regardless of who conducted or funded it. "
Wednesday, December 2, 2009
Supreme Court Grants Cert in F-Cubed Securities Litigation
This post offers a brief comment arising from the now widely reported fact (see, for example, SCOTUSblog and many others) that the U. S. Supreme Court granted certiorari from the 2d Circuit's opinion in the so-called foreign-cubed (a/k/a f- cubed) Rule 10b-5 securities case titled Morrison, et al., v. National Australia Bank, et al. (08-1191), which is sometimes called the NAB case. For the uninitiated, f-cubed refers to 1) "foreign" plaintiffs suing in the US under US law regarding a 2)"foreign" issuer of securities that resulted in the buying and selling of stock in 3) "foreign" countries.
The comment is that one hopes that briefing in the Supreme Court will cover in some depth the scope of class action litigation in countries outside the US. I say that because the 2d Circuit's opinion, slip op at 14 -15, refers to arguments that seem to me both dated and incorrect as to the extent of class action remedies outside the US. On the topic of the growing availability of class actions or class like remedies outside the US, I once again commend to readers a fairly new article titled "Global Litigation Trends." The authors are Mark Behrens, Gregory Fowler and Silvia Kim, who are all Shook Hardy lawyers. The article was published at 17 Michigan State Journal of International Law 166 (2008-09). You can download it here from the TortsProf blog.
Pasted below are the 2d Circuit's statements about class actions outside the US:
"In support of their position, Appellees and amici point to a parade of horribles that they claim
would result if American courts exercised subject matter jurisdiction over such actions. They
contend that this would, among other things, undermine the competitive and effective operation of American securities markets, discourage cross-border economic activity, and cause duplicative
litigation. Their principal objection, though, is that entertaining such actions here would bring our securities laws into conflict with those of other jurisdictions. For instance, in Switzerland, no
comprehensive federal legislation governs securities fraud, and private remedies are the only ones
available. In Canada, securities class actions are recognized, but most provinces do not recognize
the fraud on the market doctrine. In various other countries, class actions are either not available
or the ability of class actions to preclude further litigation is problematic. See, e.g., David A. Skeel, Jr., Can Majority Voting Provisions Do It All?, 52 Emory L.J. 417, 423 (2003) (noting that “most other countries do not have procedural devices that are even remotely similar to the U.S. class action”); Gerhard Walter, Mass Tort Litigation in Germany and Switzerland, 11 Duke J. Comp. & 3 Int'l L. 369, 372 (2001) (observing that “class actions do not exist in Germany, Switzerland, and most other countries of the civil law system”). In essence, Appellees argue that other countries have carefully crafted their own, individual responses to securities litigation based on national policies and priorities and that opening American courts to such actions would disrupt and impair these carefully constructed local arrangements...." (emphasis added)
It's hard to say where this all will end up since the Court apparently is continuing to pursue Chief Justice Roberts' agenda to decide "business cases," and there are so many interested constituencies. For more background, note that insurance side commentary on NAB was noted in this prior post which, in turn, links to another blog with commentary and links back to the 2d Circuit opinion and briefs. In addition, as SCOTUSblog points out, note that review was granted " even though the U.S. Solicitor General had urged it to bypass the case. Even while arguing that the case was not a proper one to address the issue, Sol. Gen. Elena Kagan filed a brief extensively outlining the government’s views on the question, suggesting that the key law against securities fraud should sometimes apply to international dealings. (Justice Sotomayor took no part in the order granting review; it was not immediately apparent why she was recused. She did not vote on this case while on the Second Circuit.)"
Tuesday, December 1, 2009
Whocanisue.com Founder Provides a Comment/Information on its Structure
When reading other blogs, I tend to miss comments on the posts, so te purposed of this post is to highlight a "comment" provided yesterday by Mr. Wolfe, of whocanisue.com. See the comment below yesterday's post or the full text is pasted below:
- Curtis Wolfe said...
-
I'm the founder of whocanisue.com. I want to clarify something, lawyers do not pay referral fees on wcis, they pay to advertise (like the Google model) to wcis users. Most importantly, wcis does not decide which counsel is recommended for a particular case, the user decides. The site supplies the users as much information as possible so that the user can make an educated decision on which counsel is best for them. The user can contact one or more lawyers or firms to ask case specific questions, and then decide if and when the user wants to hire a firm. There is no other site that allows the users to control the entire process like whocanisue.com. In fact, our site has technology that would allow the user to chat with someone from each firm before making a decision. Unfortunately, the law firms are not quite ready to use this technology, so it is disabled until some future date when we hope the firms will be ready to use all of the site's functionality.
Curtis Wolfe
Monday, November 30, 2009
More Lung Cancer Claims in Asbestos Litigation ?
Here is the Madison County Record's weekly report on new asbestos claims filings. The article lists fourteen new claims. Five of the claims are for lung cancer.
I've not done a meaningful analysis comparing the rate of lung cancer filings, but my gut is telling me that there is a developing uptick in the rate of lung cancer claims in asbestos litigation.
I've not done a meaningful analysis comparing the rate of lung cancer filings, but my gut is telling me that there is a developing uptick in the rate of lung cancer claims in asbestos litigation.
Whocanisue.com.com - Another Step in Tort Claim Marketing
The Internet is an amazing thing for marketing related to actual or potential legal claims. Here is a Madison County Record article that educated me to the existence of Whocanisue.com. It is in essence a referral source for plaintiffs, but also includes a button to hire defense counsel. The site seems to be limited to claims in the US.
It would be fascinating to know the pricing and structure for referral fees and the criteria that determine which counsel is recommended for a particular, serious case.
Readers - does anyone know of a similar website outside of the US?
It would be fascinating to know the pricing and structure for referral fees and the criteria that determine which counsel is recommended for a particular, serious case.
Readers - does anyone know of a similar website outside of the US?
Sunday, November 29, 2009
Update on China's Tainted Milk Scandal - Bankruptcy, Executions and Civil Court Hearings
Milk intentionally altered with melamine sickened around 300,000 thousand children in China The aftermath includes civil suits in China and criminal convictions.
The NYT reported yesterday that civil trial is underway against one of the producers and the retailer. Earlier this year, about 20 involved persons were convicted of criminal charges. Two of them were executed, as reported here. The primary seller went into bankruptcy and was sold at auction, as reported here. Ultimately a compensation fund was set up by the government.
As pointed out by the NYT, more details and news stories are available from an English language paper, China Daily. Some recent stories are here, and here.
A China Daily reporter, Cui Xiaohuo provided the following account of the first hearing:
"A lawsuit filed by a family that was a victim of the melamine-tainted milk scandal saw its day in court on Friday - the first trial for the families suing the milk company since the incident broke out more than one year ago.
Several courts nationwide have previously accepted compensation cases from parents of sickened children who were not satisfied with the government-led compensation, but no court has ever held a public hearing against the company until Friday.
Ma Xuexin, father of a 20-month-old boy from Henan province, requested compensation totaling 55,184 yuan ($8,080) from collapsed dairy maker Sanlu Group in Hebei province and a Beijing-based supermarket, where he bought the Sanlu-brand infant formula milk powder before the scandal went public last year.
The 30-year-old also requested that the medical costs for his son, until he reaches adulthood, be covered by the 1.1 billion yuan State-run compensation fund, of which 900 million was paid by Sanlu Group last December.
"Since my son was born last March, he has suffered from a stone in his left kidney after consuming hundreds of packages of Sanlu-brand infant formula milk powder," Ma said in the hearing.
The two defendants, the bankrupted Sanlu Group and the Longhua supermarket in the Shunyi district, both said they should not be held responsible for the plaintiff's requests because the central government has already set up the fund for victim families.
"There is no official document from the hospitals showing the direct link between melamine-tainted milk powder and the child's kidney problem," said Zhou Xiaolong, a lawyer with the Jimin Law Firm from Hebei province, where Sanlu Group was formerly located.
The hearing came just three days after two criminals were executed by injection in Hebei for their roles in producing and selling toxic milk, which killed six children and made more than 300,000 sick nationwide.
There was not a flurry of media attention at the hearing on Friday. Only representatives from the plaintiff and the defendants were sitting in the small No 9 courtroom at the Shunyi district court, about 30 km northeast of downtown Beijing.
"Being the first case held by a Chinese court, more such cases may have a chance to be heard in the near future," said Xu Zhiyong, a Beijing-based law scholar.
The hearing lasted just two hours without a verdict. The judge, Zhang Nan, said that both sides need to bring more evidence when the trial continues on Dec 9.
The NYT reported yesterday that civil trial is underway against one of the producers and the retailer. Earlier this year, about 20 involved persons were convicted of criminal charges. Two of them were executed, as reported here. The primary seller went into bankruptcy and was sold at auction, as reported here. Ultimately a compensation fund was set up by the government.
As pointed out by the NYT, more details and news stories are available from an English language paper, China Daily. Some recent stories are here, and here.
A China Daily reporter, Cui Xiaohuo provided the following account of the first hearing:
"A lawsuit filed by a family that was a victim of the melamine-tainted milk scandal saw its day in court on Friday - the first trial for the families suing the milk company since the incident broke out more than one year ago.
Several courts nationwide have previously accepted compensation cases from parents of sickened children who were not satisfied with the government-led compensation, but no court has ever held a public hearing against the company until Friday.
Ma Xuexin, father of a 20-month-old boy from Henan province, requested compensation totaling 55,184 yuan ($8,080) from collapsed dairy maker Sanlu Group in Hebei province and a Beijing-based supermarket, where he bought the Sanlu-brand infant formula milk powder before the scandal went public last year.
The 30-year-old also requested that the medical costs for his son, until he reaches adulthood, be covered by the 1.1 billion yuan State-run compensation fund, of which 900 million was paid by Sanlu Group last December.
"Since my son was born last March, he has suffered from a stone in his left kidney after consuming hundreds of packages of Sanlu-brand infant formula milk powder," Ma said in the hearing.
The two defendants, the bankrupted Sanlu Group and the Longhua supermarket in the Shunyi district, both said they should not be held responsible for the plaintiff's requests because the central government has already set up the fund for victim families.
"There is no official document from the hospitals showing the direct link between melamine-tainted milk powder and the child's kidney problem," said Zhou Xiaolong, a lawyer with the Jimin Law Firm from Hebei province, where Sanlu Group was formerly located.
The hearing came just three days after two criminals were executed by injection in Hebei for their roles in producing and selling toxic milk, which killed six children and made more than 300,000 sick nationwide.
There was not a flurry of media attention at the hearing on Friday. Only representatives from the plaintiff and the defendants were sitting in the small No 9 courtroom at the Shunyi district court, about 30 km northeast of downtown Beijing.
"Being the first case held by a Chinese court, more such cases may have a chance to be heard in the near future," said Xu Zhiyong, a Beijing-based law scholar.
The hearing lasted just two hours without a verdict. The judge, Zhang Nan, said that both sides need to bring more evidence when the trial continues on Dec 9.
Friday, November 27, 2009
Taking Discovery Against the UK's FSA Regulatory Agency ?
Here is an interesting paper from the Lehman bankruptcy. It is a motion for discovery against the UK's Financial Services Authority and PwC. (Hat tip to Am Law Daily for publishing this article on the topic, with a link to the motion. ) The opening paragraph is pasted below:
__________________________________________________________________
"The Official Committee of Unsecured Creditors (the “Committee”)
appointed in the above-captioned chapter 11 cases of Lehman Brothers Holdings Inc.
(“LBHI”) and its affiliated debtors and debtors in possession (collectively, the “Lehman
Debtors”), by and through its undersigned counsel, hereby files this Motion (the
“Motion”), pursuant to section 105(a) of title 11 of the United States Code, 11 U.S.C. §§
101-1532 (as amended, the "Bankruptcy Code"), and the Hague Convention of 18 March
1970 on the taking of Evidence Abroad in Civil or Commercial Matters, 28 U.S.C. §
1781 (the "Hague Convention"), for the issuance of two Letters of Request for
International Judicial Assistance in the form annexed hereto as Exhibit A (the “Letters of
Request”) to the High Court of Justice of England and Wales (the "U.K. Court") to
compel the production of documents by the following entities located in the United
Kingdom: the Financial Services Authority (“FSA”), Barclays' regulator, and
PricewaterhouseCoopers LLP and PricewaterhouseCoopers International Limited
(collectively “PwC”), Barclays' auditors."
__________________________________________________________________
"The Official Committee of Unsecured Creditors (the “Committee”)
appointed in the above-captioned chapter 11 cases of Lehman Brothers Holdings Inc.
(“LBHI”) and its affiliated debtors and debtors in possession (collectively, the “Lehman
Debtors”), by and through its undersigned counsel, hereby files this Motion (the
“Motion”), pursuant to section 105(a) of title 11 of the United States Code, 11 U.S.C. §§
101-1532 (as amended, the "Bankruptcy Code"), and the Hague Convention of 18 March
1970 on the taking of Evidence Abroad in Civil or Commercial Matters, 28 U.S.C. §
1781 (the "Hague Convention"), for the issuance of two Letters of Request for
International Judicial Assistance in the form annexed hereto as Exhibit A (the “Letters of
Request”) to the High Court of Justice of England and Wales (the "U.K. Court") to
compel the production of documents by the following entities located in the United
Kingdom: the Financial Services Authority (“FSA”), Barclays' regulator, and
PricewaterhouseCoopers LLP and PricewaterhouseCoopers International Limited
(collectively “PwC”), Barclays' auditors."
Wednesday, November 25, 2009
The US Chamber of Commerce Does NOT Like Litigation Funding, and Pause to Reflect
This prior post referred to a then-upcoming seminar and mentioned the question: what does the US Chamber of Commerce think about litigation funding. Thanks to an article today at Pointoflaw, we now know the unsurprising answer is: the Chamber does NOT like litigation funding. Go here for the Chamber's paper.
What's in the paper? Parts of it are fairly helpful reviews of litigation funding in Europe, Australia and elsewhere. Other parts are pretty shallow arguments that do not explore a wide range of interesting possibilities, some of which could even benefit defendants. But that's an argument for another day - no need to give anyone in the US heartburn just before Thanksgiving.
Best wishes to all for a joyous holiday, with time to pause and reflect There are, after all, real people behind the statistics and data points, and some are real tort victims suffering from brutal cancers or other terrible diseases.
For some, Thursday will be a bittersweet day as they will have no choice but to acknowledge that they almost certainly will never again gather with their loved ones to celebrate Thanksgiving here on earth.
What's in the paper? Parts of it are fairly helpful reviews of litigation funding in Europe, Australia and elsewhere. Other parts are pretty shallow arguments that do not explore a wide range of interesting possibilities, some of which could even benefit defendants. But that's an argument for another day - no need to give anyone in the US heartburn just before Thanksgiving.
Best wishes to all for a joyous holiday, with time to pause and reflect There are, after all, real people behind the statistics and data points, and some are real tort victims suffering from brutal cancers or other terrible diseases.
For some, Thursday will be a bittersweet day as they will have no choice but to acknowledge that they almost certainly will never again gather with their loved ones to celebrate Thanksgiving here on earth.
Tuesday, November 24, 2009
Consumer Arbitration and Financial Houses - Going, Going Gone ?
This post by Ashby Jones at the WSJ law blog updates on another big financial house moving away from imposing arbitration clauses. Some would say this is good news and others would say it is bad news. Plainly it does mean that there will be more changes in the litigation industry as new models evolve for dispute resolution.
Great Revenge for Poor Service
Here is a link to Pat Lamb's post about an airline customer exacting great revenge for the absence of good service. Great service is the focus for Pat 's blog, and also is the focus for Pat and the other great lawyers at Valorem Group.
Disclosure: Pat and I grew up together as lawyers and were partners for many, many years. Ultimately, the timing of life events caused him to make a move I could not join.
Disclosure: Pat and I grew up together as lawyers and were partners for many, many years. Ultimately, the timing of life events caused him to make a move I could not join.
Monday, November 23, 2009
Lawyer Humor - Cartoons - Good Holiday Gifts for the Lawyer Who Has Everything
Here is a website with insightful and funny cartoon humor regarding lawyers. The author/creator, David Mills, is now selling signed copies for $ 35 - go here for specifics.
Hat tip to Legal Antics for providing frequent laughs about lawyers, and for identifying David's cartoons.
Sunday, November 22, 2009
Ratings Agencies Sued By Ohio Attorney General
It was just a matter of time. Seeking a civil remedy for the oft-criticized credit ratings issued by the various ratings agencies, The Ohio Attorney General retained private counsel and has filed suit "on behalf of the Ohio Public Employees Retirement System, the State Teachers Retirement System of Ohio, the Ohio Police & Fire Pension Fund, the School Employees Retirement System of Ohio and the Ohio Public Employees Deferred Compensation Program."
"Attorney General Cordray is drawing on the expertise of the law firms Entwistle & Cappucci LLP; Lieff Cabraser Heimann & Bernstein LLP; and Schottenstein Zox & Dunn Co., LPA to assist with the litigation."
The Lieff Cabraser firm is well-known for its class action work for plaintiffs. The Entwistle firm has significant experience in securities claims for pension funds and others. The Schottenstein firm is an Ohio commercial law firm. No doubt others will explore all the political connections.
The complaint is here. The claims are for negligent misrepresentation and violation of Ohio statutes. The suit is in federal court, so one assumes the first issues will be Iqbal/Twombly motions. I went through the complaint this morning and it seems to this observer more than adequate in laying out a compelling and logical claim backed by evidence garnered during Congressional investigations.
Big picture conclusions/thoughts/questions ? This suit is the latest example of how investigations by federal and state officials and agencies are increasingly used to generate evidence and facts to survive Iqbal/Twombly motions. Second, my personal belief is that there ultimately will be a flood of these lawsuits. with many filed by overseas entities. One question is whether and how these claims will be expanded to include "aiding and abetting" claims against law firms and other professionals. "Choice of law" questions also seem inevitable.
Cancer, Cellular Level Shapes, and Law
More great new science at the observable cellular level. As described below, scientists used tools to observe cellular level shapes, and then figured out a way to "staple" some proteins to better take on the needed shape to fit cellular receptors. How cool and important is this discovery? Very - the science is so good it was published in Nature this month. Go here to Science Daily for the broader whole story; excerpts are below.
Why does this relate to law? As these techniques are used to actually implement ways to "turn off" cancer, they will become the remedies sought by persons facing cancer allegedly or actually caused by particular substances.
_________________________________________________________________
"ScienceDaily (Nov. 12, 2009) — Scientists have devised an innovative way to disarm a key protein considered to be "undruggable," meaning that all previous efforts to develop a drug against it have failed. Their discovery, published in the November 12 issue of Nature, lays the foundation for a new kind of therapy aimed directly at a critical human protein -- one of a few thousand so-called transcription factors -- that could someday be used to treat a variety of diseases, especially multiple types of cancer.
****
Based on his work as an oncologist, Bradner became deeply interested in a human protein called NOTCH. The gene encoding this protein is often damaged, or mutated, in patients with a form of blood cancer, known as T-ALL or T-cell acute lymphoblastic leukemia.
Abnormal NOTCH genes found in cancer patients remain in a state of constant activity, switched on all the time, which helps to drive the uncontrolled cell growth that fuels tumors. Similar abnormalities in NOTCH also underlie a variety of other cancers, including lung, ovarian, pancreatic and gastrointestinal cancers.
Even with this deep scientific knowledge, drugs against NOTCH -- or any other transcription factor -- have traditionally been extremely difficult, if not impossible, to develop. Most current drugs take the form of small chemicals (known as "small molecules") or larger-sized proteins, both of which have proven impractical to date for disabling transcription factors.
A few years ago, Bradner and his colleagues hatched a different idea about how to tame the runaway NOTCH protein. Looking closely at its structure as well as the structures of its partner proteins, they noticed a key protein-to-protein junction that featured a helical shape.
"We figured if we could generate a set of tiny little helices we might be able to find one that would hit the sweet spot and shut down NOTCH function," said Bradner.
Creating and testing these helices involved a team of interdisciplinary researchers, including Greg Verdine, Erving Professor of Chemistry at Harvard University and director of the Chemical Biology Initiative at Dana-Farber Cancer Institute, as well as scientists at Brigham and Women's Hospital and the Broad Institute's Chemical Biology Program, which is directed by Stuart Schreiber.
Verdine invented a drug discovery technology that uses chemical braces or "staples" to hold the shapes of different protein snippets. Without these braces, the snippets (called "peptides") would flop around, losing their three-dimensional structure and thus their biological activity. Importantly, cells can readily absorb stapled peptides, which are significantly smaller than proteins. That means the peptides can get to the right locations inside cells to alter gene regulation."
Why does this relate to law? As these techniques are used to actually implement ways to "turn off" cancer, they will become the remedies sought by persons facing cancer allegedly or actually caused by particular substances.
_________________________________________________________________
"ScienceDaily (Nov. 12, 2009) — Scientists have devised an innovative way to disarm a key protein considered to be "undruggable," meaning that all previous efforts to develop a drug against it have failed. Their discovery, published in the November 12 issue of Nature, lays the foundation for a new kind of therapy aimed directly at a critical human protein -- one of a few thousand so-called transcription factors -- that could someday be used to treat a variety of diseases, especially multiple types of cancer.
****
Based on his work as an oncologist, Bradner became deeply interested in a human protein called NOTCH. The gene encoding this protein is often damaged, or mutated, in patients with a form of blood cancer, known as T-ALL or T-cell acute lymphoblastic leukemia.
Abnormal NOTCH genes found in cancer patients remain in a state of constant activity, switched on all the time, which helps to drive the uncontrolled cell growth that fuels tumors. Similar abnormalities in NOTCH also underlie a variety of other cancers, including lung, ovarian, pancreatic and gastrointestinal cancers.
Even with this deep scientific knowledge, drugs against NOTCH -- or any other transcription factor -- have traditionally been extremely difficult, if not impossible, to develop. Most current drugs take the form of small chemicals (known as "small molecules") or larger-sized proteins, both of which have proven impractical to date for disabling transcription factors.
A few years ago, Bradner and his colleagues hatched a different idea about how to tame the runaway NOTCH protein. Looking closely at its structure as well as the structures of its partner proteins, they noticed a key protein-to-protein junction that featured a helical shape.
"We figured if we could generate a set of tiny little helices we might be able to find one that would hit the sweet spot and shut down NOTCH function," said Bradner.
Creating and testing these helices involved a team of interdisciplinary researchers, including Greg Verdine, Erving Professor of Chemistry at Harvard University and director of the Chemical Biology Initiative at Dana-Farber Cancer Institute, as well as scientists at Brigham and Women's Hospital and the Broad Institute's Chemical Biology Program, which is directed by Stuart Schreiber.
Verdine invented a drug discovery technology that uses chemical braces or "staples" to hold the shapes of different protein snippets. Without these braces, the snippets (called "peptides") would flop around, losing their three-dimensional structure and thus their biological activity. Importantly, cells can readily absorb stapled peptides, which are significantly smaller than proteins. That means the peptides can get to the right locations inside cells to alter gene regulation."
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