Chapter 11 in Hong Kong ? What Would They Do With Mass Tort Claims ?

Here is an AmLaw article about the apparently fairly real possibility of chapter 11 type legislation in Hong Kong. This is getting ahead of the game, but it does provide an opportunity to pause and think about what Hong Kong or other sovereigns might use as an approach to corporate failures caused by mass tort claims. After all, we've seen some serious mass tort issues arise from Hong Kong's nearby neighbors.

Let's hope other sovereigns do better than section 524(g) of teh US bankruptcy code. Otherwise, we may see a global spread of mass claiming by the least sick.

Sealing a Punitive Damages Verdict for Plaintiff When Multiple Trials Are Ongoing in One Court

Here is an interesting post from the Mass Torts Profs Blog on Judge Moss in Philadelphia granting a defense motion to seal a punitive damages verdict for plaintiffs that was entered in one Prempro trial. The defense argument was that the punitive damages verdict for the plaintiff might bias the jury in an ongoing Prempro trial in the same court.

Antitrust Claims in China

Here is brief AmLaw article regarding assertion in China of a few consumer antitrust claims, and one very modest settlement.

Cancer - - More Must Be Done - - Stark Reminders of the Human Toll

90,000 people per year travel to Houston's MD Anderson Cancer Center for treatment. Many are children. Most will not find a cure. Some will obtain more time. Almost all will suffer to achieve those additional years or months. Some will be in agonizing treatments for many months or even years. Forty years after President Nixon acknowledged the need for the so-called war on cancer, the therapies are still barbaric. Indeed, too many treatments are still so barbaric that more people than you would know will some day die from the treatments instead of the original cancer.

The staggering 90,000 number and other harsh realities are part of Gina Kolata's latest NYT article on why changes are needed in the race to prevent, manage and cure cancers. Her latest story focuses on MD Anderson to starkly highlight part of why our nation needs health care reform in general, and why our nation needs to exponentially accelerate and improve the manner in which individuals are treated for the myriad forms of cancers. Here is the image of yesterday's powerful front page picture and story. Here is the story itself.




Much more can and should be done, now. Happily, there is some expanded support triggered by the Obama Administration's support for science as detailed here. For example, the NIH and NCI are accelerating great new programs, including the Cancer Genome Atlas with wide-spread "cloud" access to the incredible amounts of new genomic information. But, much more can and should be done. Myriad cancers are starting to surrender their secrets to the brilliant doctors, new machines, and staggeringly fast computers and software that are sequencing genes and visualizing molecules at an unprecedented pace and in ways never before accomplished. Please, stay focused on the debates over health care and demand that our nation act to devote far more resources to saving more of our nation's 500,000 annual US victims and to prevent future cancers.

Can more be done in an effective way. Absolutely !

Who says so? For one, Dr. James Watson (of the Nobel prize team regarding DNA) in this powerful 2009 NYT editorial article. In just a few paragraphs, he outlines where we've been, where we are now, and why now is the time to accelerate and move forward in new ways.

For another, this 2008 book by Dr. Guy Faguet, an experienced doctor/scientist, has much to say on the subject of what's ahead and what needs to change on cancer research and treatment. http://www.amazon.com/War-Cancer-anatomy-failure-blueprint/dp/1402036183.

Dr. Faguet makes three main points. First, the "cell kill" approach to cancer is in large measure a failure. He also explains how and why the cell kill clinical trial is so slow and so tied to outmoded reimbursement systems and short-term profit models. Second, cancer prevention deserves far more effort and attention. For example, many oncogenic chromosome changes are caused by retroviruses, and so preventive vaccines are key to prevention and warrant far more effort and money. Some remarkable reductions in cancer appear to been achieved in some nations through vaccinations to eliminate one hepatitis virus. Third, the fast arriving future is finding cancer early and applying human and workable genomic therapy instead of trying to kill cancer cells after they are widespread.

Can this be done, politically speaking ? Yes. For that subject, see Dr. Harold Varmus' book - The Art and Politics of Science.

Dr. Varmus credentials ? Nobel Prize winner as part of a team of cancer researchers, head of the NIH for the Clinton Administration, and now the leader of Memorial Sloan Kettering. http://www.amazon.com/Art-Politics-Science-Harold-Varmus/dp/0393061280/ref=sr_1_1?ie=UTF8&s=books&qid=1256563341&sr=1-1

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."