The Intersection Among Torts, Science, Corporate Law, Insurance & Bankruptcy

UK Supreme Court Declines Human Rights Challenge to Conditional Fees and ATE

Posted in Comparative Law, EU Developments

The UK Supreme Court last week ruled against a party challenging an obligation to pay fees under ATE agreements and conditional fee agreements. The challenger invoked Article 6 of the European Convention on Human Rights. The case is Coventry and others (Respondents) v Lawrence and another (Appellants) [2015] UKSC 50.  The UK Supreme Court’s July 22, 2015 press release is here. A description of the outcome is online from Herbert Smith.

Litigation Industry Posturing and Growth

Posted in Asbestos, Litigation Industry, Mass Tort Issues

The US Chamber of Commerce and the  plaintiff’s bar (the AAJ) battle back and forth, and keep track of each other’s activities and meetings. Those of us of a certain age might think back to Mad magazine and Spy v. Spy cartoons. In any event, the Chamber’s ILR arm put up a July 24, 2015 blog post to follow up on a Politico story about the AAJ’s annual meeting, and highlights that someone provided a private plane flight to the meeting for US Senator Harry Reid.

The big picture point? The litigation industry continues to thrive and grow.

“Patent Think” Retreats on Discovery of Nature, and Use of Math

Posted in Cancer Research, Patent Claims/Trolls, Pharmaceuticals, Uncategorized

“Patent think” continues to retrench and retrace after SCOTUS’ series of unanimous rulings that ended patents for discovery of laws of nature, and for most applications of math. A cogent summary of the rulings is provided in a July 21, 2015 blog post by John Conley at the Genomics Law Report.  Unlike some never say die partisans, John admits the scope of the rulings and their significance. The rulings remain great (and eminently foreseeable), in my view. My perspective is wanting to see more discovery regarding the when, how and why of cancers and other diseases.

Shameless Self Promotion for “New Science and Law in Asbestos Litigation: A Multi-Disciplinary Look at Change and Future Directions”

Posted in Asbestos, Asbestos Bankruptcy, Comparative Law, Litigation Industry, Science

Readers of the blog know my view that science matters for toxic tort litigation, and have seen many posts here about aspects of the ongoing revolution in molecular biology. Through some serendipity, I met some people from other disciplines (actuarial work, financial analysis, and PhDs in biologic sciences) who also are very interested in science and tort litigation. Ultimately, we decided to write and sell a paper focused on looking at the asbestos litigation industry with a focus on molecular biology, cancer data, demographic data, OSHA data, and some new legal developments. Overall, we conclude that the insurance industry in general remains notably under-reserved for asbestos litigation, even if thinking only about mesotheliomas  As one of the co-authors put it:  “The insurance industry’s track record on reserving for asbestos claims is dismal.”

One of the problems we identify in the paper is that actuaries keep tweaking old models instead of facing up to change and creating new models that provide more room for new science and new data specific to asbestos.   In that same general vein, the paper also presents detailed information on how the revolution in genetic and molecular science has changed (and will further) change asbestos litigation.  We also point out that  some of the same core changes in molecular science also have driven notable change in other subsets of “mass tort” litigation, such as cases involving drugs and products that emit benzene.  The paper also touches on a couple of big picture legal settings and rules that could have notable impacts on litigation.

The multi-disciplinary team brings diverse skills to bear on the subject. Besides me, one of the other authors is an actuary. He also is a finance person who was a Wall Street analyst for many years, and now has his own business selling analysis and information to persons who are analyzing or investing in companies, including insurance companies. He is Bill Wilt of Assured Research.  The other authors are biologic science people who are PhDs and run a consulting firm that assists large companies in dealing with science issues, such as helping pharma companies obtain FDA approvals of new drugs. They also work with companies involved with mass tort litigation; they help various types of corporate managers better see the future of scientific change in order to better understand the evolving risks, and to develop and understand what experts can and cannot say based on real science.  That group includes David Schwartz and others from Innovative Science Solutions.

The paper is “New Science and Law in Asbestos Litigation: A Multi-Disciplinary Look at Change and Future Directions.”  It’s about 74 pages long, followed by citations to key science articles. It’s being published and sold through Bill’s firm, Assured Research – see this page.   A press release is here. The price is $1,500.

Open Access to Courts – Another Example of the Value – Forced to Give Up Data on Claims of Rape and Sexual Assault

Posted in Mass Tort Issues, Transparency

The value of open courtrooms can be immense, as illustrated last year by the Garlock trial and most recently by an article in The Chicago Daily Law Bulletin, which is the well-respected and venerable local legal newspaper in Chicago. The paper just ran an article providing an overview of about 1,300 rape and sexual assault allegations in a 2 year year period related to persons who met on, the dating web site.  The specifics are set out in a July 17, 2105 open access article by Lauraann Wood.  A well-known local plaintiff’s firm (Corboy & Demetrio) has been uncovering the information using discovery in a lawsuit. According to the article, Match tried – but failed – to have the reporter tossed out of the court room. Discovery continues, and the article suggests more data will be provided in the future.

“Increasing Coordination among Federal Prosecutors, Regulators, and Civil Enforcers”

Posted in Criminal Law and Torts, Litigation Industry

Recent statements by senior people at DOJ are notable for the litigation industry. The relevant statements are set out in a July 16, 2015 article by Adam Spicer in the ABA Journal. The entire article should be read; here is the opening paragraph:

“On May 19, 2015, the head of the Department of Justice’s Criminal Division, Assistant Attorney General Leslie R. Caldwell, stated in a prepared speech that “[i]t is Department of Justice policy that criminal prosecutors and civil attorneys coordinate with one another and with agency attorneys, to the extent permissible, to protect and advance the government’s overall interests.” Press Release, Dep’t of Justice, Assistant Attorney General Leslie R. Caldwell Delivers Remarks at the Compliance Week Conference (May 19, 2015). Ms. Caldwell has also recently expressed her view that “[t]here is a critical need for criminal prosecutions, even if conduct could be pursued civilly or through regulatory action. . . . And often it is the threat of criminal prosecution that deters potential wrongdoers.” Press Release, Dep’t of Justice, Assistant Attorney General Leslie R. Caldwell Delivers Remarks at the New York University Center on the Administration of Criminal Law’s Seventh Annual Conference on Regulatory Offenses and Criminal Law (Apr. 14, 2015).” 

Exponential Change, and a Tweak to Moore’s Law on the Time to Double Computing Power

Posted in Offtopic, Science

Moore’s law is slowing, a bit. The time to double computing power on a chip is now more in the range of 2.5 years, than 2 years, according to Intel’s CEO, as quoted in a July 16, 2015 Financial Times article. But given the levels of computing power that are doubling today, the growth in computing power is still incredible and exponential. According to the same article, Mr. Moore is surprised it took this long to reach change in the rule. The article explains:

“[The CEO’s] comments come just two months after celebrations marked 50 years since Gordon Moore made his prediction about the steadily increasing number of transistors that could fit on a single chip, in his 1965 article, “Cramming More Components onto Integrated Circuits.”

At a May event commemorating the anniversary at San Francisco’s Exploratorium, a science museum, Mr Moore said he was “amazed” that the law had held for so long.

“The original prediction was to look at 10 years, which I thought was a stretch . . . The fact that something similar is going on for 50 years is truly amazing.”

But he warned: “Someday it has to stop. No exponential like this goes on forever.”