Saturday, August 8, 2009
Judging Opinions and Other Writings Using Plagiarism Software
Great post on Conglomerate with links to lots of specifics about using plagiarim software to figure patterns and averages regarding the writing of Supreme Court opinions and other documents.
Friday, August 7, 2009
2d Circuit Issues Chrysler Opinion Explaining Prior Ruling
Wednesday, August 5, 2009
Tax Breaks for Plaintiff's Lawyers ?
Further proving that law is just another industry, LegalNewsline has an interesting article here about legislative efforts to give plaintiff's lawyers a tax break. Instead of personal injury case expenses being treated as loans to the clients, the plaintiff's lawyers want to immediately expense the amounts spent. According to the article, the hoped-for tax break was a topic at the recent national meeting of the trade association plaintiff's personal injury bar.
Monday, August 3, 2009
Signifcant Mass Tort Bankruptcy Issues in the W.R. Grace Asbestos Chapter 11 Case
Significant mass tort bankruptcy issues are being contested as the W.R. Grace asbestos chapter 11 case moves deeper into its phased confirmation hearing. Subsequent posts will touch on some of the issues and pleadings.
Two issues are of perhaps greatest overall note. First, multiple objectors are arguing that Grace in fact is solvent, and so they argue the plan is not confirmable because the payouts called for by the plan violate, they say, various subsections of code section 1129 regarding the relative rights to payments as between creditors and equity holders. In short, they say the equity owners are being allowed to keep too much in the way of assets.
Another big picture point is that the Grace case presents an unusual and wide-ranging set of plan objectors, with most or all of the challengers having apparently uncontested standing to object to the plan. So, this chapter 11 case could end as one of the few asbestos chapter 11 cases that actually ends with rulings and judgments instead of the usual bankruptcy court deals.
As a reminder of how Grace came to this juncture, recall that on April 7, 2008, W. R. Grace announced a settlement in principle of many but not all of the asbestos injury claims related to its long-running Chapter 11 case. The settlement occurred when the case was in the midst of a hotly contested trial on "liability estimation" for personal injury claims. Grace had presented significant evidence on the flaws of the "mass screened" asbestos cases, and was slated to present further evidence intended to diminish the value of future claims. Overall, Grace was putting on evidence to prove that many or most claims against were frivolous claims. Part way through that battle, Grace and the ACC (the Asbestos Creditor's Committee) reached a deal.
The prior settlement deal is described in the excerpts set out below from this article by Alison Frankel in the online American Lawyer.
Familiar Faces Central to W.R. Grace's Settlement of Asbestos Claims
The American Lawyer
By Alison Frankel
April 09, 2008
"The real driving force was not what was happening in Judge Fitzgerald's courtroom but how long it would take to reach a conclusion through litigation," says Elihu Inselbuch of Caplin & Drysdale, who was counsel to the asbestos claimants committee. "It could easily have gone on another four years, with asbestos victims getting sick and dying the whole time."
Two issues are of perhaps greatest overall note. First, multiple objectors are arguing that Grace in fact is solvent, and so they argue the plan is not confirmable because the payouts called for by the plan violate, they say, various subsections of code section 1129 regarding the relative rights to payments as between creditors and equity holders. In short, they say the equity owners are being allowed to keep too much in the way of assets.
Another big picture point is that the Grace case presents an unusual and wide-ranging set of plan objectors, with most or all of the challengers having apparently uncontested standing to object to the plan. So, this chapter 11 case could end as one of the few asbestos chapter 11 cases that actually ends with rulings and judgments instead of the usual bankruptcy court deals.
As a reminder of how Grace came to this juncture, recall that on April 7, 2008, W. R. Grace announced a settlement in principle of many but not all of the asbestos injury claims related to its long-running Chapter 11 case. The settlement occurred when the case was in the midst of a hotly contested trial on "liability estimation" for personal injury claims. Grace had presented significant evidence on the flaws of the "mass screened" asbestos cases, and was slated to present further evidence intended to diminish the value of future claims. Overall, Grace was putting on evidence to prove that many or most claims against were frivolous claims. Part way through that battle, Grace and the ACC (the Asbestos Creditor's Committee) reached a deal.
The prior settlement deal is described in the excerpts set out below from this article by Alison Frankel in the online American Lawyer.
Familiar Faces Central to W.R. Grace's Settlement of Asbestos Claims
The American Lawyer
By Alison Frankel
April 09, 2008
***
Familiarity doesn't preclude disagreement, however. W.R. Grace, which was forced into Chapter 11 bankruptcy in 2001 by asbestos liability, estimates the settlement to be worth less than $2.5 billion in present day value. The plaintiffs lawyers say its present value is closer to $3 billion.
The trust that will pay out asbestos claims will be funded by a $250 million cash contribution from Grace (payable on the company's emergence from Chapter 11); an additional $1.55 billion from Grace paid over 15 years, beginning in 2019; Grace's asbestos insurance coverage, worth an estimated $600 million; warrants to purchase Grace shares; and more than $1.2 billion in previous settlements with companies accused of fraudulently purchasing Grace assets.
Unlike previous bankrupt companies that reached deals with asbestos claimants, W.R. Grace went to trial to challenge the plaintiffs lawyers' estimation of its liability for the more than 100,000 asbestos claims it faced. Claimants estimated that liability to be $3.5 billion to $7 billion. Grace contended it owed less than $800 million, though it set asbestos reserves at $1.7 billion.
Beginning in January, Delaware federal bankruptcy court Judge Judith Fitzgerald presided over a trial to determine both the appropriate way to estimate claims and the total value of those claims. Grace had concluded its case and plaintiffs lawyers had presented their first witness when the deal was reached.
"The real driving force was not what was happening in Judge Fitzgerald's courtroom but how long it would take to reach a conclusion through litigation," says Elihu Inselbuch of Caplin & Drysdale, who was counsel to the asbestos claimants committee. "It could easily have gone on another four years, with asbestos victims getting sick and dying the whole time."
Friday, July 31, 2009
Judge Delaughter Pleads Guilty to Putting Justice on Sale for Dickie Scruggs
This NYT article notes the guilty plea of Judge DeLaughter for obstruction of justice for tipping the scales in favor of asbestos and tobacco maven Dickie Scruggs. Stories of this sort are unfortunate reminders that John Grisham will never run out of grist for his novels exploring the many seamy sides of trying to dance on both sides of the many sharp edges in our legal system .
Thursday, July 30, 2009
The Next Asbestos Still Is More Asbestos
For years, many have posed the question: what is the next "asbestos" ?
The answer usually has been: more asbestos.
Here is one recent example of why the answer remains largely true. The example is a plaintiff's firm press release urging the need to treat taconite as if it is asbestos even though its never before been classified as asbestos. There are some real health issues as to taconite, which you can see from this University of Minnesota web page addressing an ongoing study. The point here though is that the next asbestos is more asbestos. The second point is that the underlying JOEH article it cites purports to find a medical link between the presence of pleural plaques and pain in this particular person. The plaintiff's bar no doubt will continue to use this article as part of the always ongoing campaign to find reasons why money should be paid to persons without actual impairment of their day to day activities.
The answer usually has been: more asbestos.
Here is one recent example of why the answer remains largely true. The example is a plaintiff's firm press release urging the need to treat taconite as if it is asbestos even though its never before been classified as asbestos. There are some real health issues as to taconite, which you can see from this University of Minnesota web page addressing an ongoing study. The point here though is that the next asbestos is more asbestos. The second point is that the underlying JOEH article it cites purports to find a medical link between the presence of pleural plaques and pain in this particular person. The plaintiff's bar no doubt will continue to use this article as part of the always ongoing campaign to find reasons why money should be paid to persons without actual impairment of their day to day activities.
Monday, July 27, 2009
Tort Settlement Secrecy - Can Government Lawyers Ethically Use Settlement Agreement Terms That Purport to Limit Future Use of The Settlement ?
Is it ethical for government lawyers to demand, or a plaintiff's lawyer to sign, a tort claim settlement agreement that includes terms that purport to limit the use of the settlement agreement in future litigation? "No" is the answer provided in this article addressing the issue in the context of government and private lawyers involved in tort and civil rights claims against the City of Chicago. The article is:
SETTLEMENTS YOU CAN’T SIGN: ETHICAL
IMPLICATIONS OF CHICAGO’S MACHINERY OF DENIAL
By Craig B. Futterman, Jason E. Huber, and Pier Petersen
The article is interesting and valuable in multiple ways. One is its discussion of the settlement secrecy actics formerly used by the City of Chicago, but now apparently abandoned. More value lies in its footnote 32 citation to laws around the US that in one way or another require public access to most settlement agreements arising from tort claims against the government. Also valuable is its closing reminder/discussion of the many cases in which courts have enforced similar unethical settlement agreement terms despite the seeming perversity of that result.
Hat tip to Jerry Crimmins for reporting on the existence of the article and other related background facts in a July 17 , 2009 article in the Chicago Daily Law Bulletin.
SETTLEMENTS YOU CAN’T SIGN: ETHICAL
IMPLICATIONS OF CHICAGO’S MACHINERY OF DENIAL
By Craig B. Futterman, Jason E. Huber, and Pier Petersen
The article is interesting and valuable in multiple ways. One is its discussion of the settlement secrecy actics formerly used by the City of Chicago, but now apparently abandoned. More value lies in its footnote 32 citation to laws around the US that in one way or another require public access to most settlement agreements arising from tort claims against the government. Also valuable is its closing reminder/discussion of the many cases in which courts have enforced similar unethical settlement agreement terms despite the seeming perversity of that result.
Hat tip to Jerry Crimmins for reporting on the existence of the article and other related background facts in a July 17 , 2009 article in the Chicago Daily Law Bulletin.
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