New Opinion in Australia on Registrations for Litigation Funding and Class Actions

Courtesy of Mondaq and Google, I encountered this article from AU law firm Middelton's regarding a new appellate opinion in Australia on litigation funding. The appellate court opinion arises in the context of funding for a class action. The Middelton's article kindly included a link to the opinion, which is here. The upshot seems to be that there are more required registrations than had been perceived for litigation funding in Australia for class actions.

The entire article and opinion need to be viewed. But, here's the short summary from the article:

"Consequences

There are numerous shareholder or investor class actions currently before the courts or that are anticipated and many of those are backed by litigation funding on terms similar to those present in this case. The Full Court's decision means that those class actions should probably have been registered as Managed Investment Schemes.

Running a Managed Investment Scheme entails a wide range of commercial, legal and compliance issues, including the requirement to hold an Australian Financial Services Licence (AFSL). Whilst such issues are not insurmountable for the litigation funder, obtaining the AFSL and registration of the scheme is a complex process that ordinarily takes many months. Where the litigation funder is a foreign entity (as is the case with ILF), that process is likely to be further complicated.

In the Brookfield Multiplex case, the Full Court stated that the defendant in a representative proceeding is entitled to have confidence in its dealings with the solicitors, for the claimants that they are properly authorized to act, and that the proceedings will not, in the future, be disrupted or delayed by any intervention by ASIC or a disgruntled group member, asserting an irregularity of the nature identified here. Those comments call into question the status of other class actions currently before the courts and may present an obstacle for claims in contemplation unless suitable arrangements are put in place.

The other consequence of the judgment may be that litigation funders and solicitors running representative proceedings shy away from class actions that involve retail investors (ie the "mums and dads" of the investment community) as an investment scheme involving large or institutional investors will not require registration (but the manager of that scheme will still need an AFSL).

To view the citation to the judgment please click here.

Travelers/Manville Remand - 2d Circuit Argument is Thursday October 22 at 2:00 PM

The Supreme Court's Manville/Travelers opinion was quite narrow (some might say advisory) and resulted in a remand of the case to the 2d Circuit to decide the extent to which the prior rulings are binding on various entities. As per this online docket, the Travelers/Manville argument on remand is set for oral argument today. at 2:00 pm at the 2d Circuit. Assuming I'm reading the schedule correctly, the appellate panel will consist of Judges Calabresi and Wesley, and also will include the now fairly famous Judge Rakoff sitting on the panel by designation. Go here to see the panels.

UPDATE on the UPDATE: Pleural Plaques in the UK - The Dance Goes On

Update on the Update: Through the written question and answer process, the UK government issued an October 21 acknowledgment here that it does not have a date in mind to announce a decision on pleural plaques, but the response will be made "as soon as possible."

"Julia Goldsworthy (Falmouth & Camborne, Liberal Democrat)

To ask the Secretary of State for Justice when he expects to announce his decision on compensation for those with pleural plaques; and if he will make a statement.

Bridget Prentice (Parliamentary Under-Secretary, Ministry of Justice; Lewisham East, Labour)

The House of Lords decision has raised extremely complex and difficult issues which have required very careful consideration within Government. It has also been important to look beyond the issue of pleural plaques itself to consider how people who have been exposed to asbestos can be supported much more widely. We are actively considering all these issues in order to be in a position to publish a final response as soon as possible."

Update: Go here for the full text of debates in official form or here for the same text arranged by speaker and topic on TheyWork forYou.


The pleural plaques dance/debate continued yesterday in the UK House of Commons. The latest move is an apparently futile bill seeking to reinstate the ability to make claims for pleural plaques. Here is the link to a media story. The House of Commons comments should be online in a day or two. The Brown Administration still has not taken a firm position.

Here is the prior post that includes a paper I submitted to argue why it would be a grave mistake to reinstate plaques claiming.

"Asbestos-related illness decision may be overturned

7:59am Saturday 17th October 2009

By Rob Merrick »

VICTIMS of an asbestos-related illness were given fresh hope of compensation yesterday.
A Bill to overturn a Law Lords ruling denying payouts to sufferers from pleural plaques – a scarring of the lungs, that can trigger mesothelioma and lung cancer – cleared the Commons.
But ministers made it clear they stood ready to block the Damages (Asbestos-Related Conditions) Bill in the House of Lords, if necessary.

They have argued that only five per cent of pleural plaques sufferers develop asbestos-related diseases and that changing the law would open the floodgates to other compensation claims worth billions.

It is 15 months since the Government signalled it would not overturn the 2007 ruling, however, it has not confirmed the decision after Labour MPs reacted with outrage.

Yesterday, Justice Minister Bridget Prentice apologised to MPs after admitting a final decision was no closer, adding: “That is very frustrating for everyone concerned.”

As a result, ministers had little choice but to allow the backbench Bill to pass to the Lords. It was given a third reading by 51 votes to zero.

But the Bill has less than four weeks to clear the Lords and Ms Prentice admitted that ministers would step in to prevent it reaching the statute book if necessary.

Under the Government’s proposals, only the existing 6,500 pleural plaques sufferers would receive “no fault” payouts of up to £5,000, funded by the taxpayer, rather than insurance companies.
Future victims would receive no damages until a serious disease developed, by which time an employer or insurance company may have disappeared, making it harder to prove liability."

Delaware Catholic Diocese to Use Chapter 11 to Manage Tort Cases Regarding Priests

Law360 and various news services had articles over the last two days regarding the Delaware Catholic Diocese filing for chapter 11 due to pending tort claims arising from priests molesting children. The Diocese is represented by Wilmington's Young Conaway law firm, which has been involved in many of the asbestos chapter 11 cases as counsel for futures reps. Will we see a trust fund or just tort claim resolution ? Either way, this presents just the latest example of how chapter 11 is being used as just another to to resolve tort claims. Here are two key quotes from the Law360 article.


"Filing for Chapter 11 offers the best opportunity, given finite resources, to provide the fairest possible treatment of all victims of sexual abuse by priests of our diocese," Bishop W. Francis Malooly of the Wilmington diocese said in a statement.

"Our hope is that Chapter 11 proceedings will enable us to fairly compensate all victims through a single process established by the bankruptcy court," Malooly said.

Structured Settlements versus Lump Sum Settlements - What are the Facts ?

Thanks to the Empirical Legal Studies blog post here, here is the link for a student paper asserting that there no facts to back up the practice of promoting structured settlements instead of lump sum settlements.

Great New Science - Diagnosing a Disease Based on Gene Sequencing - in 10 Days

Here's a science follow up to yesterday's historic ruling by the Massachusetts Supreme Court regarding medical monitoring due to genome level changes. Yesterday, a story popped up that illustrates how fast and far medicine and genomics are moving thanks to incredible computer speeds and software. The gist? In 10 days, scientists sequenced an entire human genome and diagnosed a disease that had baffled the clinicians !!

The full story is here, from the Howard Hughes Medical Institute. Here are key excerpts:

"October 19, 2009 Diagnosis Emerges from Complete Sequencing of Patient's Genes

For the first time, scientists have diagnosed a genetic disease by completely sequencing all of a patient’s genes. Using high-throughput DNA sequencing technology, Howard Hughes Medical Institute (HHMI) researchers successfully identified a gene mutation that was responsible for the patient’s disease, but had not been suspected based on clinical observations.

Starting with DNA from a blood sample from the patient -- an infant in Turkey who was persistently dehydrated and failing to gain weight – the team found in 10 days a gene mutation known to affect electrolyte transport in the intestines and cause a condition called congenital chloride diarrhea. Doctors in Turkey confirmed the diagnosis clinically and were able to provide a treatment tailored to the disease.

***

I think in the coming years we’re going see a dramatic increase in the use of this kind of technology,” Lifton says. “This is going to be a very powerful technology for disease-gene discovery and clinical application.” Lifton and his colleagues reported their method and diagnosis in an advanced online publication of the Proceedings of the National Academy of Sciences on October 19, 2009."

Massachusetts High Court Ruling Approves a New Medical Monitoring Claim Involving Smokers, Low Dose CT Scans and Cellular Changes

Today was not a good day for the tobacco industry or certain other "mass tort" defendants and/or insurer involved with cancer claiming. Why? Despite opposition briefs from almost every major defense group in the US (see n.4), the Massachusetts Supreme Court today issued a unanimous opinion approving a tort claim to obtain medical monitoring using low dose CT scans to seek to find lung cancer very early for a class of people at meaningful risk of cancer due to many pack years of prior or current smoking of Marlboro cigarettes. See below for the elements of the claim.

The opinion also is noteworthy for two other reasons. First, it includes a ruling on when and how a defendant can win a statute of limitations defense. It will not be easy for the defense since the opinion to a large degree suggests a focus on what a physician has told the plaintiff. The opinion also includes a ruling to protect plaintiffs against splitting a cause of action. The latter ruling is that if cancer does manifest itself, the plaintiff can bring a new claim even if he or she already made a claim for medical monitoring.

The opinion is available online here from the Court, and also is available on Westlaw. It is Donovan v. Philip Morris USA, Inc., --- N.E.2d ----, 2009 WL 3321445 (Mass.)

Go here for my prior post predicting this type of outcome and providing data and facts on cancer that help to explain why this ruling will, over time, become quite important. Go here for NAM's opposition brief.

The elements of the approved medical monitoring claim are:

"In conclusion, each plaintiff must prove the following:

(1) The defendant's negligence (2) caused (3) the plaintiff to become exposed to a hazardous substance that produced, at least, subcellular changes that substantially increased the risk of serious disease, illness, or injury (4) for which an effective medical test for reliable early detection exists, (5) and early detection, combined with prompt and effective treatment, will significantly decrease the risk of death or the severity of the disease, illness or injury, and (6) such diagnostic medical examinations are reasonably (and periodically) necessary, conformably with the standard of care, and (7) the present value of the reasonable cost of such tests and care, as of the date of the filing of the complaint."

Here are key excerpts from the opinion as to the Court's rationale:

"Modern living has exposed people to a variety of toxic substances. Illness and disease from exposure to these substances are often latent, not manifesting themselves for years or even decades after the exposure. Some people so exposed may never develop an illness or disease, but some will. Subcellular or other physiological changes may occur which, in themselves, are not symptoms of any illness or disease, but are warning signs to a trained physician that the patient has developed a condition that indicates a substantial increase in risk of contracting a serious illness or disease and thus the patient will require periodic monitoring. Not all cases will involve physiological change manifesting a known illness, but such cases should be allowed to proceed when a plaintiff's reasonable medical expenses have increased (or are likely to increase, in the exercise of due care) as a result of these physiological changes. We leave for another day consideration of cases that involve exposure to levels of chemicals or radiation known to cause cancer, for which immediate medical monitoring may be medically necessary although no symptoms or subclinical changes have occurred. Here, the physiological changes with the attendant substantial increase in risk of cancer, and the medical necessity of monitoring with its attendant cost, may adequately establish the elements of injury and damages.

Our tort law developed in the late Nineteenth and early Twentieth centuries, when the vast majority of tortious injuries were caused by blunt trauma and mechanical forces. We must adapt to the growing recognition that exposure to toxic substances and radiation may cause substantial injury which should be compensable even if the full effects are not immediately apparent. See Hansen v. Mountain Fuel Supply Co., 858 P.2d 970, 977 (Utah 1993). When competent medical testimony establishes that medical monitoring is necessary to detect the potential onset of a serious illness or disease due to physiological changes indicating a substantial increase in risk of harm from exposure to a known hazardous substance, the element of injury and damage will have been satisfied and the cost of that monitoring is recoverable in tort. No particular level or quantification of increase in risk of harm is necessary, so long as it is substantial and so long as there has been at least a corresponding subcellular change. Id. at 979-980. This should address any concern over false claims, see Payton v. Abbott Labs, supra at 552-555, yet permit a genuinely injured person to recover legitimate expenses without having to overcome insurmountable problems of proof in this difficult and complex area. In this respect, medical expenses are recoverable not only for direct treatment and diagnosis of a present injury or an injury likely to occur, but for diagnostic tests needed to monitor medically a person who has been substantially exposed to a toxic substance that has created physiological changes indicating a substantial increase in risk that the person will contract a serious illness or disease. The expense of medical monitoring is thus a form of future medical expense and should be treated as such."

Report on Civil Justice in Scotland Calls for Class Actions and More Work on Litigation Funding and Contingency Fees

Lord Gill's report on civil justice in Scotland was issued on 30 September. The full report and the synopsis are available here. See below for some key excerpts from the synopsis.


"Multi‐party actions (Chapter 13)

The Report recommends that there should be a special procedure for dealing with multiple claims which give rise to common or similar issues of fact or law, for example, litigation arising out of a mass disaster or liability for defective products. Detailed recommendations are made regarding the features that such a procedure would have, including special funding arrangements for multi‐party actions to be administered by the Scottish Legal Aid Board (see paragraphs 64‐119).

The cost and funding of litigation (Chapter 14)
Detailed recommendations are made on the recovery of expenses. The cost of litigation should form part of the remit of the proposed Civil Justice Council for Scotland (see below); pending which the Scottish Government should set up a Working Group to look at the issue of expenses (paragraphs 50‐67).

While no recommendations are made on speculative fee arrangements pending the outcome of a review in England and Wales, it is recommended that this issue should urgently be addressed by the proposed Working Group on Judicial Expenses (see paragraphs 125‐127).

The Scottish Government should explore with insurance providers the scope for improving public awareness and increasing voluntary uptake of legal expenses insurance (see paragraph 140)."

More on Apologies. a Topic Related to Medical Malpractice and Other Tort Claim Situations

This entry from Conglomerate caused me to see this article in Business Week on the power of apologies. This research is consistent with information suggesting that medical malpractice claims are best resolved by admitting errors, making a payment and moving forward, as described in a short NYT article covered by my prior post here. For a scholarly and persuasive article on the University of Michigan's favorable experience with apologies for medical malpractice, go here.




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Why It Pays to Apologize
What's the best way for a company to disarm a disgruntled customer? A simple apology beats a cash rebate, according to a new study.
Researchers at Britain's Nottingham School of Economics worked with a large German wholesaler that sells goods on eBay (EBAY), tracking the lukewarm or negative comments posted on the site by the company's customers over six months.
They then responded to the 632 complaints—about defective salt shakers, say, or the late delivery of a leather belt. Half of the e-mailed responses offered a brief apology. Half offered instead a "goodwill gesture" of a small cash rebate (from $3 to $8). All the e-mails asked the customers to remove the comments they had posted online. For those offered the rebate, it was a condition of receiving the cash.
The result? About 45% of customers who received an apology withdrew their so-so or negative ratings, compared with 21% of those offered money to do so.
Johannes Abeler, a Nottingham research fellow and co-author of the study, says it's worth noting that the e-mailed apologies were effective even though they were brief and impersonal—and asked for something in return. His explanation? Despite the suspicions people might harbor, "apologies trigger this biological instinct to forgive that is hard to overcome."
—Douglas MacMillan

Burford Fund Goes Public in Britain - $ 130 Million Raised for Litigation Funding

Regardless of what some may think, investors apparently like the idea of litigation as an investment vehicle. The proof ? Burford Capital this week succeeded in raising $ 130 million in its IPO.

Here is an Am Law article by Alison Frankel in which she declares: "It's time to declare litigation financing a bona fide investment class."

Here is the link to a Bloomberg story on Burford's IPO.