Legal Humor - Judicial Fiat

http://www.courtoons.net/2009/06/10/fiat/

Sovereign Suits - 9/11 Claims Against Saudi Arabia

Walter Olson's Overlawyered blog post steers readers to a New York Times article with a link to the US government's brief opposing suit against Saudi Arabia for 9/11. Interesting reading on the Foreign Sovereign Immunities Act.

Federal Liens Against Some Tort Settlement Payments - The Medicare, Medicaid, and SCHIP Extension Act of 2007

The Medicare, Medicaid, and SCHIP Extension Act of 2007 is prompting lots of concern among tort litigants. The gist is that many but not all parties expecting to pay a tort settlement - to a person eligible for Medicare - must register with the federal government and then report payments to the federal government effective as of July 1, 2009. The point of course is to let the government seek to obtain reimbursement for its expenses to delay the day when Medicare becomes insolvent.


Guidance on compliance is out there. For example, the basic rules are spelled out in a short online article by defense lawyer Keith Whitson and others at Schnader Harrison, and other more detailed online articles also are avaible here . On the plaintiff's side, bar groups are advertising seminars to educate plaintiff's lawyers about the rules. Some deep background from Matt Garretson to plaintiff lawyers is available here, but is useful for anyone.

Chrysler Stay Lifted; Further Attacks to Follow

The stay was lifted in a two page order available here. The experts at Scotus blog offered some interesting views on how much this order does or does not mean and noted in commentary that one appeal for certiorari has been filed with the Court. As to the issues for future product liability claimants, it seems fair to assume that collateral changes will arise in the future, as was successfully done in the later stages of the Agent Orange litigation by future claimants whose interests were not properly represented in the original Agent Orange proceedings. See Stephenson v. Dow Chemical, 273 F.3d 279 (2d Cir. 2001). Here, it seems difficult to realistically argue that future product liability claimants could be or were given meaningful or timely notice of the Chrysler proceedings, and there was no designated futures representative, much less an adequate future representative or a meaningful hearing on the issues specific to the future claimants. Time will tell what happens on direct appeal or later collateral attacks. But the Manville/Travelers opinion should be out withing the next three weeks and perhaps will include relevant rulings or clues.

How Many Chances Will You Actually Have to Save a Life ?

How many chances will you have to actually save a life? An opportunity for you may be at hand. June 8 - 22 is the time period for free registration to be a potential donor for the bone marrow cells that may well be the only chance life for the hundreds of thousands of individuals in the United States who every day are battling blood cancers and other diseases. The matches really do happen; a recent news story describes one such match. http://abclocal.go.com/wls/story?section=news/local&id=6854698

Perhaps you, like me, may have thought the need for bone marrow donations is an old problem that's been solved by new science. Not so. In fact, the need for bone marrow donors actually is increasing rapidly !

Why? Two key reasons, among others.

First, the rates for lymphomas and leukemias are spiraling upwards to stunning annual numbers. Consider just one of those cancers - non-Hodgkins lymphoma. The rate used to be 55,000 cases per year in the United States, but now the rate is up to 66,000 new cases per year in just the United States.

As of 2008, about 575,000 people in the United States are living with NHL, and the victims may relapse at any time even after having achieved remission through treatment. Some persons will need more than one bone marrow transplant to come even close to a normal life span. For all the grim statistics, go to the website for the Leukemia and Lymphoma Society. It has all the stunning numbers. http://www.leukemia-lymphoma.org/all_page.adp?item_id=7087

Second, there are today many inter-racial children, and many more will arrive in the future due to the huge growth in international adoptions that move children into a new continent where the odds are they will not marry another person from the same race. Finding marrow for children from inter-racial marriages is a rapidly growing challenge that will only get bigger due to globalization.

In short, leukemias, lymphomas and other diseases can be treated (sometimes cured) through bone marrow donations, so please register now while registration is free.

Two more things. Treating these diseases through chemotherapy requires significant amounts of blood transfusions to replace cells killed during chemotherapy, and therefore blood donations also are very important. Umbilical cord blood donations also are welcomed. So, please keep those donation paths in mind, including mentioning cord blood donations when grandchildren are arriving. And, donations for scientific research are always welcomed.

The online donation form is at the link below. All you have to do is fill out the forms and mail back in a swab you will be sent by mail.

Please take action now - time may well be short for the person whose life you really could save by donating bone marrow your body will easily replace !

http://www.marrow.org/JOIN/index.html

Comments and Briefs Related to the Stay in Chrysler

Akin Gump's SCOTUS blog provides expert Supreme Court commentary that includes a post explaining why why the stay issued by Justice Ginsberg may not have much substantive meaning. The so-called "consumer groups' " request for a stay is here. The papers cogently cite some of the caselaw recognizing the constitutional issue inherent in enjoining future claims. The stay request filed by Ms. Pascale, the asbestos claimant, may be found here.

The government responded on the TARP issues, but its brief does not address the arguments raised by product liability claimants. Chrysler responded in a brief that is here.

The Chrysler brief is noteworthy in two ways for tort issues. Overall, the message of the brief is a disturbing one for tort claimants because the basic premise is that Chrysler is so badly off and so mismanaged that there is not enough money left to pay tort claimants, and the remaining money should instead go to secured creditors without delay.

The general argument includes two parts. First, Chrysler argues that the tort victims lack are simply out of luck because there is, they say, no money left for them and so the claimants will not be harmed if the sale goes through. This argument is false because it ignores the relief the claimants seek - to limit the scope of the order of the bankruptcy court so that there is an open door to invoke state law to try to recover from the Buyer entity. Chrysler's argument is as follows:

"The unfortunate but unavoidable fact is that future tort claimants who will have claims against the Debtors based on vehicles manufactured by Chrysler simply have no value to be protected.
Accordingly, just as with the Funds, because the price paid by New CarCo Acquisition for the Fiat Sale exceeds Chrysler’s liquidation value, creditors stand to gain more from the Fiat Sale than any other viable alternative. For both past and future tort claimants, their claims are valueless under either scenario. Accordingly, the “irreparable harm” that they claim will ensue in the absence of a stay is entirely the product of the economic collapse of Chrysler. It has nothing to do with the Fiat Sale or the Bankruptcy Court order approving it. The tort claimants’ application for a stay should therefore be denied."

Second, Chrysler argues that an enormous bond must be posted in order to prosecute an appeal. The argument creates for the would-be appellants/objectors a problem reminiscent of the problems faced by oil companies and tobacco companies hit with large verdicts they sought to appeal. Specifically, the Chrysler brief argues:

"While the Funds’ application for a stay should be denied for all of the reasons set forth above, even assuming that a stay were to be entered here it should thus be conditioned on the Funds posting a bond in at least the amount of $1.2 billion to protect Chrysler against damages that would be caused by a stay. See In re Calpine Corp., No. 05-60200, 2008 WL 207841, at * 6-7 (Bankr. S.D.N.Y. Jan. 24, 2008) (requiring bond of $900 million to cover “aggregate additional interest expense the Debtors could suffer if they were unable to close their existing exit financing”); ACC Bondholder Group v. Adelphia Commc’ns Corp. (In re Adelphia Commc’ns Corp.), 361 B.R. 337, 347 (S.D.N.Y 2007) (requiring supersedeas bond of $1.3 billion). (footnote omitted)

Requests for a Stay in Chrysler Reach Supreme Court - Timely Reminders of Why the Travelers/Manville Asbestos Case is So Key

This weekend, the Supreme Court has received stay motions regarding Chrysler that provide concrete examples of the importance of the issues the Court faces in the Manville/Travelers case regarding how far a bankruptcy court can go in issuing injunctive orders that limit the rights of third-parties, including so-called "future claimants." Indeed, some of the concerns raised this weekend illustrate the importance of due process issues raised in an amicus brief filed Manville/Travelers by a far-sighted group of bankruptcy law professors.

Specifically, the Court has received petitions seeking stays of the orders by Judge Gonzalez and by the 2d Circuit. The briefs are nicely collected and in general analyzed on the Scotus blog.

The current product liability claimants, and self-declared representatives of future product liability claimants, are of course complaining that their rights have been trampled by Chrsyler since no mony is being left behind to pay their claims, and the bankruptcy court has issued an order purporting to preclude claims against New Chrsyler. The latter of course takes away from the claiamnts their state law rights based on state law rules that would or may allow "successor liability" claims against New Chrsyler. At page 4 of their brief, they explain the rulings to data as follows:

"On June 1, 2009, the Bankruptcy Court for the Southern District of New York, Judge Arthur J. Gonzalez presiding, issued an opinion granting the relief sought in the sale motion. The opinion stated that tort claims and any potential successor liability claims are “interests in such property” that can be extinguished by § 363(f). Bankr. Op. at 42-43. The Court also held that the sale did not violate future claimants’ due process rights because “notice of the proposed sale was published in newspapers with very wide circulation,” id. at 43., citing Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 317 (1950), for the proposition that “publication of notice in such newspapers provides sufficient notice to claimants ‘whose interests or whereabouts could not with due diligence be ascertained.’” In addition, the court stated that the interests of future tort claimants had been presented to the Court. Bankr. Op. at 43. The order signed by Judge Gonzalez authorized the sale of substantially all of Chrysler’s assets free and clear of all liens, claims, interests, and encumbrances, “whether arising before or after the Petition date,” “including all claims or rights based on any successor or transferee liability.” Sale Order at 2-3; see also id. at 40, ¶ 35 (stating that New Chrysler “shall not have any successor, derivative or vicarious liabilities of any kind or character for any Claims, including, but not limited to, on any theory of successor or transferee liability, . . . whether known or unknown as of the Closing, now existing or
hereafter arising . . . .”).