Product Liability

Residual Class Action Awards: Cy Pres - Podcast

Litigation Practice Group Podcast
Brian T. Fitzpatrick, Theodore H. Frank March 21, 2014

gavel money

Cy pres (from the French cy pres comme —“as near as possible”) originated in the trust context, but has more recently been applied to class action litigation, as courts try to determine what to do with sometimes significant amounts of settlement funds remaining after all identified plaintiff awards have been made.  In recent decades, courts have agreed to award such remaining funds to third party recipients who, while not parties to the underlying suits, are deemed worthy by the court.  Sometimes, the courts have selected these third party recipients based on recommendations from the attorneys representing the plaintiffs.  What are the legal underpinnings for such awards to entities or people not party to the underlying case?  What are the policy considerations in making or prohibiting such awards?  These and other questions were discussed by our experts.


  • Prof. Brian T. Fitzpatrick, Vanderbilt University Law School
  • Mr. Theodore H. Frank, Founder and President, Center for Class Action Fairness and Adjunct Fellow, Manhattan Institute Center for Legal Policy

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Free To Choose Medicine

Engage Volume 14, Issue 3 October 2013
Bartley J. Madden, Gregory Conko January 27, 2014

Free To Choose Medicine: Better Drugs Sooner at Lower CostThe U.S. Food and Drug Administration approved 39 new medicines in 2012, the largest number in 16 years.1 Some, including the agency itself, are proclaiming a new era of cooperation and productivity for the pharmaceutical industry and the FDA.2 But a closer look at what’s happening in the industry reveals deep problems. Development costs are rising, research pipelines are drying up, and as medical science targets more complex diseases such as cancer and Alzheimer’s, it has become increasingly more difficult to translate basic scientific discoveries into marketable products that work well in the clinic....[Read More!]

Mutual Pharmaceutical Co. v. Bartlett - Post-Decision SCOTUScast

SCOTUScast 10-08-13 featuring Gregory Dickinson
Gregory Dickinson October 08, 2013

Gregory DickinsonOn June 24, 2013, the Supreme Court announced its decision in Mutual Pharmaceutical Co. v. Bartlett. The question in this case was whether federal law preempts state law design-defect claims targeting generic pharmaceutical manufacturers.

In a 5-4 opinion the Court held that State-law design-defect claims that turn on the adequacy of a drug's warnings are preempted by federal law. The lower appellate court's opinion to the contrary was therefore reversed. Justice Alito delivered the opinion of the Court, in which Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined. Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.

To discuss the case, we have Greg Dickinson, who is an associate at Harris Beach, LLP.

What is Left of the Alien Tort Statute after Kiobel v. Royal Dutch Petroleum? - Podcast

International & National Security Law Practice Group and Litigation Practice Group Podcast
Chimène Keitner, Julian Ku, Dean A. Reuter May 13, 2013

What is Left of the Alien Tort Statute after Kiobel v. Royal Dutch Petroleum? - PodcastOn April 17, 2013, the Supreme Court decided Kiobel v. Royal Dutch Petroleum Co., holding that the Alien Tort Statute does not have extraterritorial reach.  This halts the recent trend of parties being hauled into United States courts for alleged torts that occurred in another country with no connection to the United States.  This teleforum discusses the implications of this landmark decision.


  • Prof. Chimène Keitner, University of California Hastings College of the Law
  • Prof. Julian G. Ku, Professor of Law and Faculty Director of International Programs, Hofstra University Maurice A. Deane School of Law
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

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Arbitration and Class Actions in the Supreme Court: American Express v. Italian Colors Restaurant - Podcast

Litigation Practice Group Podcast
Thomas G. Hungar, Dean A. Reuter May 01, 2013

Arbitration and Class Actions in the Supreme Court: American Express v. Italian Colors RestaurantIn American Express Co. v. Italian Colors Restaurant, the Supreme Court considered an important question regarding the enforceability of arbitration agreements that contain class action waivers.  In 2011, the Court held in AT&T Mobility LLC v. Concepcion that state law purporting to invalidate class action waivers in arbitration agreements is preempted by the Federal Arbitration Act.  In Italian Colors, however, which involves a Sherman Act class action brought by retailers against American Express for alleged tying violations relating to its credit card agreements, the Second Circuit held that the “federal substantive law of arbitrability” invalidated the class action waiver provision in American Express’s arbitration agreements with merchants that accept its credit cards.  The court of appeals reasoned that the class action waiver provision was invalid under federal law because it would “effectively preclude any action seeking to vindicate the statutory rights asserted by” the plaintiff class, given the prohibitive expense of trying to prove an antitrust claim on an individual basis.  The Second Circuit concluded that Concepcion was inapposite, because there had been no showing there that “the practical effect of the enforcement would be to preclude [the plaintiff class’s] ability to vindicate their statutory rights.”  The Supreme Court will now decide whether its Concepcion decision really did vindicate the ability of business defendants to enforce class action waivers in arbitration agreements, or instead whether plaintiffs can escape such provisions whenever they can show that individual litigation of federal claims would be prohibitively expensive.

Our expert, Thomas G. Hungar of Gibson, Dunn & Crutcher, attended the oral argument and then provided his analysis of the merits of the case and the possible outcomes in light of the oral arguments.


  • Mr. Thomas G. Hungar, Partner, Gibson Dunn & Crutcher LLP
  • Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

[Listen now!]