Thinking about a joint defense agreement with terms with an eye on notice of settlements and sharing costs of judgments, especially for antitrust cases? Here’s a cogent May 17, 2016 article from Proskauer.
The intersections between law and science continue to increase as more issues turn on when and how injury is defined and the light science can (or can not) shed on the questions. The point is illustrated by the latest ruling in the NHL concussion litigation (online here). There, the court rejected some reasoning from football cases, and denied a motion to dismiss. At 9-10, the court explained:
“The NHL originally filed two motions to dismiss, based on two distinct grounds. First, the NHL filed a Motion to Dismiss Master Complaint Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 9(b), seeking dismissal of Plaintiffs’ claims as time-barred. (See Mem. Opinion and Order dated Mar. 25, 2015 [Doc. No. 126], at 8.). The Court denied that motion because it could not determine, from the face of the Master Complaint, when Plaintiffs’ causes of action accrued and, therefore, whether those claims are barred by the applicable statute of limitations. (See id. at 13, 33.) In particular, the Court explained that when the alleged injuries (e.g., “an increased risk of developing serious latent neurodegenerative disorders and diseases” and “latent or manifest neuro-degenerative disorders and diseases”) “occurred” or “resulted,” and when Plaintiffs discovered or should have discovered the link between the type of injuries they suffered and the increased risk of developing neurodegenerative disorders, are matters that are proper subjects of discovery. (Id. at 13–14.)4 Only after additional discovery is completed can it be determined within which of (at least) four potential categories each Plaintiff-retiree belongs: (1) retirees whose cause of action arose while they were active players, and who filed a lawsuit as retired players within the statute of limitations; (2) retirees whose cause of action arose while they were active players, and who filed a lawsuit as retired players outside of the statute of limitations; (3) retirees whose cause of action arose after they retired, and who filed a lawsuit within the statute of limitations; and (4) retirees whose cause of action arose after they retired, but who filed a lawsuit outside of the applicable statute of limitations.“
Monday was not a good day for defendants at SCOTUS. Set out below are four overview statements by LAW360. One might think the litigation pendulum is swing back in favor of plaintiffs. Indeed, the securities and bankruptcy fraud cases were decided on a 15-1 basis.
“The U.S. Supreme Court ruled Monday that a consumer could not sue Spokeo Inc. for mere technical violations of the Fair Credit Reporting Act, but left the door open for plaintiffs in other cases to use statutory violations to establish standing, ruling that the Ninth Circuit used an incomplete analysis when it ruled consumers can sue companies without alleging actual injury.”
“The U.S. Supreme Court unanimously ruled Monday that federal securities laws do not preempt certain claims from being brought in state court, in a decision that allows a shareholder suit against a Merrill Lynch unit and other Wall Street firms to proceed in New Jersey state court on claims they engaged in a manipulative short-selling campaign against them.”
“The U.S. Supreme Court refused Monday to accept a narrow interpretation of the phrase “actual fraud” for purposes of determining when debts arising from wrongdoing can be discharged through bankruptcy, expressing concern that doing so would allow debtors to game the courts.”
“The U.S. Supreme Court refused Monday to review a $236 million trial judgment against ExxonMobil Corp. in a groundwater contamination case in New Hampshire, leaving in place a verdict the energy giant claims is a violation of its due process rights.”
The jurisdiction wars continue in tort cases, as more state court cases follow on from SCOTUS’ decision limiting assertion of personal jurisdiction in Daimler AG v. Bauman. Fairly soon, the issues will move forward another step as the California Supreme Court will hear June 2, 2016 arguments regarding the appeal in Bristol-Myers Squibb Co. v. Superior Court of San Francisco County, No. A140035 (Cal. App. July 30, 2014). The issues in BMS arise because it filed a petition for writ of mandate to reverse the trial court’s ruling upholding personal jurisdiction in a set of “mass tort” cases involving hundreds of claims about alleged defects in Plavix. See this Law Professors blog post for more background. One has to wonder if defendants need to be careful what they wish for.
A hat tip and thanks to Laurie Hepler, a very smart California appellate lawyer, for flagging notable product liability cases being set for argument.
The economics of litigation continue to receive more attention. For example, an April, 29, 2016 post at CLS Blue Sky Blog brings news of a new litigation economics article by Albert H. Choi, the Albert C. BeVier Research Professor of Law at the University of Virginia Law School, and Kathryn E. Spier, the Domenico de Sole Professor of Law at Harvard Law School. The post builds on their recent paper, “Taking a Financial Position in Your Opponent in Litigation,” which is free on SSRN.
One part of the CLS article is pasted below; all parts deserve a read.
“We begin by analyzing a setting with symmetric information, where the plaintiff, the defendant, and capital market know all the relevant parameters, such as the size of the damages, cost of litigation, and the probability of plaintiff winning. By taking a short position in the defendant’s stock, the plaintiff can transform what would otherwise be a negative expected value claim into a positive expected value one. This, in turn, implies that more cases will be filed ex ante. While some of these claims may be meritorious and socially valuable, others may not be. Indeed, through a sufficiently short position, the plaintiff can credibly threaten to bring any suit to trial, even an entirely frivolous one where everyone agrees that the plaintiff’s chances of prevailing in litigation are (near) zero. Short selling improves the plaintiff’s bargaining power for positive expected value claims as well, leading to larger settlement payments by the defendant. Conversely, when taking a long position in the defendant’s stock, the plaintiff’s threat to go to trial and bargaining position are compromised. After presenting the basic results, we consider five extensions of the symmetric information analysis: (1) a less efficient financial market that is initially unaware of the lawsuit; (2) differential litigation stakes in which the damages that the defendant pays are larger than the plaintiff’s recovery; (3) the loser-pays-the-costs rule; (4) endogenous litigation cost, where the amount of resources spent on litigation depend on the stake; and (5) plaintiff risk aversion. We show, in particular, that the loser-pays-the-costs rule can function as an effective screening device that keeps plaintiffs from accumulating financial positions to file frivolous claims.”
Immunotherapy for cancer is the new thing, and it shows great promise, but also difficulties. For a good overview explanation, see this brief presentation from AstraZeneca.
Epigenetics. It’s a big deal, and is more and more becoming part of main stream conversations. For a very readable explanation, see Same but Different, from the May 2, 2016 issue of the New Yorker. The article is from the tireless Siddhartha Mukherjee, author of Emperor of all Maladies: A Biography of Cancer, a Pulitzer prize winner in 2011.
An ounce of prevention versus ………. VW’s $18 billion charge for the emissions cheating scandal provides a timely example of the need to stay in front of technology and to do it right.
Looking for a great, real cyber-crime story with lawyers as some of the good guys? Read Michael Goldhaber’s great account in the American Lawyer on February 21, 2016:
Case Study: How To Catch an IP Thief