Litigation Practice Group Podcast 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.
Practice Groups Podcast
- Victor E. Schwartz, Partner, Shook, Hardy & Bacon L.L.P.
On Friday, November 7, the U.S. Supreme Court granted a petition for cert in King v. Burwell, the Fourth Circuit Court of Appeals case concerning the payment of subsidies to participants in federally-run versus state-run health care exchanges. Many believe a decision that cuts against the government's interpretation of the statute could undermine Obamacare. A temporary circuit split on the issue was obviated weeks ago when the D.C. Circuit Court of Appeals agreed to en banc review of a three-judge panel decision that reached a result different than had the Fourth Circuit. Our experts discussed why the Court agreed to hear a case that upheld a federal government interpretation of a federal statute.
Meanwhile, LSU Law School Professor John Baker has written a paper (available here) discussing the administration of the settlement fund in the BP Horizon oil spill. In that matter, BP asserts that the fund administrator is awarding damages to plaintiffs who were not harmed by the oil spill, and BP seeks relief in the Court. Later the week of November 10, the Court is expected to consider a cert grant in this important case.
Little Rock Lawyers Chapter
- Prof. Jonathan H. Adler, Johan Verheij Memorial Professor of Law, Case Western Reserve University School of Law
- Prof. John S. Baker, Jr., Visiting Professor, Georgetown University Law Center and Professor Emeritus, LSU Law School
The Little Rock Lawyers Chapter hosted a debate titled "Is Tort Reform Conservative?" at the Arkansas State Capitol in the Old Supreme Court Room on June 24, 2014. Brian Brooks of the Arkansas Trial Lawyers Association and James Copland of the Manhattan Institute offered their contrasting views on the constitutionality of varying tort reform measures, and also shared their analyses on how those measures align with traditional conservative values.
Litigation Practice Group Podcast
- Brian Brooks, Counsel, Arkansas Trial Lawyers Association
- James R. Copland, Senior Fellow and Director, Manhattan Institute's Center for Legal Policy
- Moderator: Chad Pekron, Quattlebaum, Grooms, Tull & Burrow PLLC
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