Litigation Practice Group Podcast Warren Postman September 29, 2015
Class action litigation will be front and center at the Supreme Court this Term, with three potentially landmark cases—Spokeo v. Robins, Tyson Foods v. Bouaphakeo, and Campbell-Ewald v. Gomez—having been scheduled for argument in the fall. The Supreme Court will also soon consider several petitions for certiorari that raise additional class action issues over which the lower courts are divided. Warren Postman, Associate Chief Counsel at the U.S. Chamber Litigation Center, discussed the issues raised in these cases and their potential impact on class action litigation.
Litigation Practice Group Podcast
- Mr. Warren Postman, Associate Chief Counsel for Litigation, U.S. Chamber of Commerce
Victor E. Schwartz September 10, 2015
In The Rise of “Empty Suit” Litigation™: Where Should Tort Law Draw The Line?, Victor E. Schwartz discusses the need to stop all litigation where an individual or class action plaintiff has suffered no real harm, physical, emotional or economic. In his article, Schwartz criticizes finding liability for the estimated cost of medical monitoring following exposure to a potentially harmful substance absent a physical injury. He also examines class action litigation claiming that a product’s actual value was lower than the purchase price, or that the resale value of a product diminished because of an alleged latent defect, even when the product functioned properly for most or all consumers. Of course, he also addresses both individual claims where there has been no real injury, or economic loss and class actions that rely on speculative or expert-driven theories of harm or damages. Mr. Schwartz explained his article in greater depth and answered questions from our audience.
Litigation Practice Group Podcast
- Victor E. Schwartz, Partner, Shook, Hardy & Bacon L.L.P.
Are shareholder lawsuits, filed in opposition to proposed corporate mergers or asset acquisitions, on the rise and, even if so, does that indicate a problem? Does the fact that most such lawsuits are quickly settled indicate they have underlying merit? Who are the winners and losers in such lawsuits, and are the interest of shareholders generally served by such lawsuits? How are attorney’s fees calculated? Assuming something is amiss, is there a remedy? Is the opportunity for intervention by an objector useful?
Litigation Practice Group Podcast
- Prof. Jonathan R. Macey, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale Law School
- Hon. Gerald Walpin, former Inspector General, Corporation for National and Community Service, former Chief of Prosecutions, Office of the United States Attorney, Southern District of New York
The tragedy of asbestos continues to play out. The ensuing litigation has no counterpart in our history. Over 10,000 companies have been named as defendants, leading to 100 bankruptcies (and counting). While the litigation continues apace, it has undergone radical changes from the 1985-2003 period, when millions of nonmalignant asbestos claims, mostly of asbestosis, surged through the civil justice system. U.S. District Court Judge Janis G. Jack painstakingly documented that the litigation screenings which had generated approximately 90% these claims were permeated with fraud. As stated by Judge Jack:
"it [was] clear that the lawyers, doctors and screening companies were all willing participants [in a scheme] to manufacture. . . [diagnoses] for money."
Malignancies, most especially mesothelioma and lung cancer, account for a substantial percentage of the billions being paid out currently. Because of the unique nature of asbestos etiology and bankruptcies, trusts with assets of approximately $30 billion have been created from the assets of reorganized companies to compensate current and future victims of asbestos exposures.
Asbestos claimants today have two separate sources from which to seek compensation: claims against the trusts and suits against solvent defendants in the tort system. In “Fraud and Abuse in Mesothelioma Litigation,” 88 Tulane L. Rev. 1071 (2014), Professor Lester Brickman has examined the interplay between trust payments to claimants and tort claims. He presents evidence that plaintiffs and their counsel have routinely failed to identify exposures to the products of reorganized companies when suing defendants in the tort system even though they state, under oath, that the claimants had “meaningful and credible exposures” to the very products that plaintiffs have denied having exposed to in interrogatories, depositions, and trial testimony. Plaintiffs’ counsel steadfastly maintain that with a sole exception, there is no evidence that plaintiffs or their counsel have engaged in unethical or illegal conduct.
Recently, U.S. Bankruptcy Judge George R. Hodges, in In re Garlock Sealing Techs., 504 B.R. 71 (Bankr. W.D.N.C. 2014), found a “startling pattern of misrepresentation” “of exposure evidence,” thus sustaining Professor Brickman’s expert testimony in the Garlock bankruptcy. The committee representing the interests of plaintiffs and their counsel have appealed Judge Hodges’ Order.
The significance of Judge Hodges’ Order is yet to be determined. Already, Garlock has filed RICO actions against several of the law firms that obtained substantial payments from Garlock. Insurers and defendants are undoubtedly conducting investigations based on the revelations in Garlock and newly emerging evidence that may result in additional lawsuits being brought against plaintiffs’ counsel. If so, we may be entering a new era in litigation.
Sponsored by the Federalist Society's Practice Groups
- Prof. Lester Brickman, Yeshiva University, Benjamin N. Cardozo School of Law
- Mark A. Behrens, Partner, Shook, Hardy & Bacon, L.L.P.
Putting aside criminal cases, the stakes for all sides are perhaps never higher than in a class action case – mere certification of a class can increase the pressure to settle exponentially. But, of course, the class must be properly composed in order to be certified. In the recently-decided Wal-Mart v. Dukes case, the U.S. Supreme Court revisited some of the basic requirements for certification of a class of plaintiffs, including commonality. Other requirements of Rule 23 certification may surface in ongoing litigation stemming from the 2010 BP Deepwater Horizon oil spill, where defense attorneys are arguing, among other things, that the settlement agreement is being administered and interpreted overly broadly to include numerous class members who have not suffered any injury caused by BP. Our experts will discuss recent developments in class action litigation, including a pending petition for cert in the BP case. The Federalist Society presented this panel on September 4, 2014.
- Prof. Neal K. Katyal, Partner, Hogan Lovells, and Paul and Patricia Saunders Professor of National Security Law, Georgetown University Law Center
- Hon. Theodore B. Olson, Partner, Gibson Dunn & Crutcher LLP
- Moderator: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution
National Press Club