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

Chicago Rising to Become A New Home for Criminal and Civil Trials About High-Speed Trading and Spoofing?

Posted in Criminal Law and Torts, Litigation Industry

As businesses evolve and change, the litigation industry often evolves and changes to confront criminal, regulatory and civil law issues arising from the businesses. That outcome apparently is at work in Chicago for both criminal law and civil law related to high-speed trading, a topic covered at length by Michael Lewis in Flash Boys.

As to criminal law, the US Attorney’s office in Chicago has created a task force focused on high-speed trading and spoofing in the commodities and securities industries. The task force already notched a notable win as it indicted and convicted a spoofing trader, with the jury taking less than an hour to return a guilty verdict. On the regulatory and civil sides, private companies working in the space are filing regulatory complaints about each other and filing civil lawsuits against each other. The changes are discussed in a Crain’s Chicago Business article of November 13, 2015. A couple of key excerpts are pasted below, but the full article is well worth reading:

“In addition, U.S. Attorney Zach Fardon has made policing the industry a priority. He built a team of a dozen prosecutors last year to focus solely on commodities and securities crimes, using new tools under Dodd-Frank to thwart disruptive trading practices in the electronic sphere.


We’ve got a U.S. attorney who’s not afraid to enforce this law,” he says later in an interview. The new aggressiveness includes surprise FBI visits to trading firms and the aid of new CFTC and Securities and Exchange Commission whistleblower programs created by Dodd-Frank, he says.


Meanwhile, trading firms are incriminating each other. Citadel filed multiple complaints with the CFTC and CME regarding anonymous trading that was traced to 3Red and Oystacher. One of Citadel’s employees provided an affidavit in the 3Red case last month, saying Citadel lost millions of dollars as a result of Oystacher’s actions. Chicago-based Citadel also complained about Panther’s trading, and another Citadel employee testified for the prosecution in Coscia’s trial.

High-speed firms are suing each other in Chicago federal court, too. HTG Capital Partners sued “John Doe” over spoofing and is trying to force CME to reveal the name of the culprit. Kemnitz is representing “John Doe” in the case but won’t discuss the matter.”


Guinness Says the World’s Oldest Law Firm Dates Back to 1570

Posted in Humor, Litigation Industry

A fun fact about lawyers and law firms.  Guinness World Records has declared a UK  law firm the world’s oldest. It dates back to 1570 (not a typo) when a person started up a business as a church-related “scrivener.” The rest, as they say, is history. A news article is here. The law firm is here, and a key quite follows:

“Thomson Snell & Passmore was launched in 1570 by Nicholas Hooper, a curate of the Tonbridge Parish Church, the honour will be recorded in the Guinness World Records 2017.

Does Law Ever Change Significantly? Think About Marijuana (and the Tort(s) Relevant to You)

Posted in Asbestos, Cancer, Litigation Industry, Mass Tort Issues, Science

Some people assume change in law is always slow. Is that really true? Not always. Consider all of the ongoing change regarding the legality of marijuana. On that topic, see a general BNA Bloomberg presentation dated November 13, 2015. For marijuana specific analysis , take a look at Doug Berman’s November 18, 2015 blog post at Marijuana Law, Policy & Reform.

The overall message? Could there be a fundamental change in the law applicable to a set of tort claims relevant to your industry? What might that change look like? How large an impact would follow? How would you cope with the change?

Daunting Data on Viruses and Cancer

Posted in Asbestos, Cancer, Science

Daunting data on viruses and cancer is set out in a new, open access article in Cancer Epidemiology. The article is part of the European Code Against Cancer.
For “asbestos lawyers,” a bell might ring as to Simian Virus 40, better known as SV40.

The new abstract explains:

Of the 2,635,000 new cancer cases (excluding non-melanoma skin cancers) occurring in the European Union (EU) in 2012, it is estimated that approximately 185,000 are related to infection with human papillomaviruses (HPVs), hepatitis B and C viruses (HBV and HCV), and Helicobacter pylori (H. pylori). Chronic infection with these agents can lead to cancers of the cervix uteri, liver, and stomach, respectively. Chronic infection with HCV can also lead to B-cell non-Hodgkin lymphoma. Human immunodeficiency virus (HIV) infection continues to be of major public health importance in several EU countries and increases cancer risk via HIV-induced immunosuppression. The fourth edition of the European Code Against Cancer presents recommendations on effective and safe preventive interventions in order to reduce the risk of infection-related cancers in EU citizens. Based on current available evidence, the fourth edition recommends that parents ensure the participation of their children in vaccination programs against HBV (for newborns) and HPV (for girls). In the ‘Questions and Answers’ (Q&As) section about vaccination and infections in the website for the European Code Against Cancer, individuals who are at risk of chronic HBV or HCV are advised to seek medical advice about testing and obtaining treatment when appropriate. Individuals most at risk of HIV are advised to consult their doctor or healthcare provider to access counselling and, if needed, testing and treatment without delay. Information about H. pylori testing and treatment is also provided as testing might currently be offered in some high-risk areas in Europe. The rationale and supporting evidence for the recommendations on vaccination in the European Code Against Cancer, and for the main recommendations on vaccination and infection in the Q&As, are explained in the present review.”


More Asbestos Science and International Asbestos Claims: ACI Asbestos Litigation Conference: January 14 -15, 2016

Posted in Asbestos, Litigation Industry, Science

Where did 2015 go? It soon will be time for the annual ACI Asbestos Litigation Conference in Philadelphia, this year on January 14 and 15, 2016 at the usual location at the Union League Club. 

The entire agenda is pasted below. The presentations especially near and dear to my heart are focused on science, and the growing set of issue arising from persons who cross over borders (i.e. “international” claims).

Lung cancer: new medical and legal considerations given the substantial increase in claims

Mesothelioma: latest trends, genetic components, meso gene theory, idiopathic cases, low dose issues, filings by younger females, and talcum powder

New international issues associated with motions to apply foreign law

The overall agenda is as follows; you can register here.

Lung cancer: new medical and legal considerations given the substantial increase in claims
Mesothelioma: latest trends, genetic components, meso gene theory, idiopathic cases, low dose issues, filings by younger females, and talcum powder
Recent developments in take home and bystander exposure cases
Current state of engineering design firm duty and the statute of repose defense for construction work related to asbestos exposure
Update on state adoption of the bare metal defense
Insurance coverage issues: loss portfolio transfers, retroactive reinsurance, legacy liabilities, long tail losses, trigger allocation, successor rights after mergers, and more
Juror communication: focus on state of the art and reptile theory
Former employee lawsuits: latest filings against former employers in common law tort actions
Role of unions in asbestos litigation
Dealing with increased requests for corporate witness depositions and preparing company witnesses for testimonyThe case against the non-asbestos defendant such as asbestos defendant equipment manufacturer and its component parts: the evolution of theories and strategies with regard to the various types of defendants
Ethics opinions in asbestos litigation (featuring CLE ethics credits)

The asbestos science world is racing forward. Make time to catch up!

Personal Injury Class Actions, Mass Tort Bankruptcies, and Evolving Science: NFL Concussion Arguments this Week Highlight Conflicts of Interest Between Current and Future Claimants

Posted in Asbestos, Asbestos Bankruptcy, Cancer, Litigation Industry, Mass Tort Issues, Policy Issues

One of the struggles in mass tort litigation arises from the economic conflicts of interest between current and future claimants. The issues can arise in multiple places: class actions, mass tort bankruptcies (which are de facto class actions), and current claims seeking punitive damages that realistically could exhaust the assets of defendants that lack deep enough pockets.

The conflict between future claimants and current claimants, and more, will be central to the NFL concussion class action argument this week in the 3rd Circuit. A cogent summary of the issues is provided by Paul Anderson at the NFL Concussion Blog in a November 15, 2015 post. The issues include a sharp focus on conflicts between the current and future claimants as to the brain injury known as CTE.  Incredibly, the current claimants propose to leave future CTE victims without a remedy. The point is explained as follows in the opening brief of the objectors.

“So the NFL wanted an end game: It would pay those with present injuries, including families of players who had already died with CTE. In exchange, the NFL would secure a sweeping global release of all former players’ future CTE claims, without paying any of them. This bargain would result in a stark disparity: The family of a player who dies with CTE before the class-action settlement’s approval gets up to $4 million. But an identically situated player who dies a day after the settlement’s approval releases his claim and gets paid nothing—for the exact same diagnosis.”

Happily, objecting claimants are 1) pointing out the mistreatment of the future claimants, and 2) arguing the class outcome cannot bind future claimants if it abrogates their rights. If due process means anything, the rights of future claimants certainly cannot be cut off while the science is very new and still undergoing material evolution. To that end, one of the arguments of the objectors is to “keep the science open.” More specifically, the objectors argue, among other things: “the settlement could authorize objective committee of scientists to approve changes and “keep pace with the changing science and medicine.” Georgine, 83 F.3d at 630-31.”  That particular line of argument is towards the end of the opening brief of some of the objectors, at 55-56. The full brief is online and open access.  

Three of the key paragraphs from the brief are pasted below, including the argument to “keep the science open.”

“Exclude future claims from the release

The parties might also narrow the terms of the release to permit class members who develop CTE-related injuries in the future to press their claims and seek compensation. In Super Spuds, Judge Friendly refused to endorse a view of Rule 23 or due process that would allow named plaintiffs to give up different claims of absent class members. 660 F.2d at 17. Here, because the named “futures” representative declined to press a CTE claim, the scope of any release of future claims could be so limited, and future CTE claims could be excluded. See In re Oil Spill by Oil Rig Deepwater Horizon, 295 F.R.D. 112, Case: 15-2272 Document: 003112053952 Page: 62 Date Filed: 08/24/2015 56 125 (E.D. La. 2013) (approving release that would not cover later-manifested physical conditions arising from exposure).
Compensate CTE with evolving diagnostic criteria.

A third option would be to create a CTE qualifying diagnosis. This would allow players who are later diagnosed with CTE to get compensation. To account for the changing science, the settlement could establish a framework for constant reevaluation of the diagnostic criteria related to CTE. And unlike the current settlement—which gives the NFL a unilateral veto—the settlement could authorize an objective committee of scientists to approve changes and “keep pace with the changing science and medicine.” Georgine, 83 F.3d at 630-31.

Provide back-end opt-out rights

Finally, the use of “sturdy back-end opt out rights” has been recognized as a “rational[]” means for future-only class members to protect “distant recoveries,” Amchem, 521 U.S. at 610, and “safeguard their ultimate right to resort to the tort system,” In re Asbestos Litig., 90 F.3d 963, 972-73 (5th Cir. 1996); see, e.g., Bowling v. Pfizer, Inc., 143 F.R.D. 141, 150 (S.D. Ohio 1992). 7 In the recent BP/Deepwater Horizon Medical Settlement, for example, all class members had the right to a back-end opt-out regardless of 7 This mechanism has been embraced by several scholars. See John C. Coffee, Jr., Class Action Accountability, 100 Colum. L. Rev. 370, 433 (2000); Richard A. Nagareda, Autonomy, Peace, and Put Options in the Mass Tort Class Action, 115 Harv. L. Rev. 747, 800-01 (2002); Samuel Issacharoff, Governance and Legitimacy in the Law of Class Actions, 1999 Sup. Ct. Rev. 337, 368-70 (1999); John C. Coffee, Jr., Class Wars, 95 Colum. L. Rev. 1343, 1448-53 (1995). Case: 15-2272 Document: 003112053952 Page: 63 Date Filed: 08/24/2015 57 whether they recovered in the present. There was “no ‘future’ injury released by the Settlement”—and hence no concern that absent class members’ undeveloped claims would be extinguished. See In re Oil Spill, 295 F.R.D. at 140. Because all class members retained the opt-out right, even those with current claims had “every incentive to protect the interests” of futures-only claimants—a point with which Dean Klonoff (who was also an expert there) agreed. Id”

Concussions, Science, Sports and the Movies

Posted in Litigation Industry, Mass Tort Issues, Policy Issues, Reputation Risk, Science

Megan tweet soccerFor organizations indirectly or directly involved with health, the current world can present massive opportunities and risks due to media that can reach around the globe to millions, in a relative instant. A new example? Concussions, research and emerging science, the subject of a new Will Smith movie in theaters at Christmas, as described here and so many places.

Yes, movies like this are a big deal as to public perception. And all should keep in mind that some members of the public end up on juries, some are in legislatures, and some work as doctors or judges. Some also are shareholders. In the article, Will Smith cites his concerns as a “football dad.” For me, certainly concussions were very much on mind the last few years as a “soccer dad” for two daughters who played for their high school teams and on “travel” soccer teams. (Left, my daughter Megan, on corner kick duty.)

Millions of parents around the world share similar concerns as we all want to keep our kids safe, and yet not smother them. After all, life includes some risk at many junctures but we parents sure wish we could put a protective bubble around children, whether ours or the kid next door or on the other team. All parents worry when a kid is prone on the field. And we all will raise heck (to use a polite word) if we think someone is not being honest about the safety of children.

The message here? Research and knowledge matter, and transparency is key.

CBO Publishes Estimate for Extension of 9/11 (Zadroga) Fund

Posted in Asbestos, Litigation Industry, Mass Tort Issues, Policy Issues

CBO has published a preliminary estimate of costs related to extension of the 911 (Zadroga) fund. CBO provided the following summary:

“The Congressional Budget Office has completed a preliminary estimate of the effect on direct spending that would result from enacting S. 928, the James Zadroga 9/11 Health Compensation Reauthorization Act, as introduced on April 14, 2015. The bill would permanently extend spending authority for the World Trade Center (WTC) Health Program and the September 11th Victims Compensation Fund (VCF).

CBO estimates that enacting S. 928 would increase direct spending by between $8 billion and $11 billion over the 2016-2025 period. Additional spending would continue after 2025 for several years. This estimate reflects considerable uncertainty about the number of people that will seek compensation from the VCF.

S. 928 would:

  • Permanently extend the health program by providing annual appropriations beginning in fiscal year 2016 equal to the 2015 appropriation indexed to the percent increase in the medical component of the consumer price index for urban consumers;
  • Appropriate such sums as are necessary for the VCF program;
  • Allow claims for compensation under the VCF to be filed indefinitely; and
  • Add the WTC Health Program and the VCF to the list of accounts that are not subject to sequestration.” 

Thursday November 19, 2015 Webinar on Insurance Industry Asbestos Reserves and Asbestos Science

Posted in Asbestos, Insurance, Litigation Industry

Asbestos litigation keeps on going. Indeed, a couple of weeks ago, AM Best put out yet another iteration of its annual report on asbestos and pollution reserves of liability insurers. Rather like the Federal Reserve’s messaging on interest rates, AM Best’s release appeared to include messaging about asbestos reserves of the insurance industry. The message? In 2016, AM Best “probably” will take a fresh look  at asbestos reserves at insurance companies, with hints of what it may say. For example, consider the following statements from the press release:

“The Best’s Special Report, titled, “Asbestos & Environmental Losses Drop Sharply in 2014, But Funding Level Concerns Remain,” notes that given the consistent and high level of paid and incurred losses, this unfunded estimate may be low.” 


“With more than 80% of total industry A&E liabilities composed of asbestos losses, asbestos continues to be the “main event” when discussing A&E exposures. A.M. Best continues to monitor issues related to asbestos litigation and insured exposures with an eye toward a possible re-visiting of its $85 billion estimate of ultimate industry losses during 2016.”

That’s a long winded introduction to part of why there is a webinar next week (Thursday Nov. 19) on asbestos science and insurance industry reserves. The panel consists of our multi-disciplinary group that wrote a white paper this summer on those topics.  As explained by actuary and insurance industry analyst Bill Wilt:

“Rating agency A.M. Best recently increased their estimate of the industry’s ultimate losses for asbestos to $85 billion, and for many years the insurance industry has been in a pay-as-you-go mode; both paying and accruing some $2 billion annually for asbestos liabilities. When will it end; or, will it end?”


Kirk Hartley – Founder, LSP Group, LLC
David H. Schwartz, Ph.D. – Head of Scientific Support to Counsel, Innovative Science Solutions, LLC
William Wilt, CFA – President, Assured Research, LLC


Summary of why multi-disciplinary teams are necessary to see beyond “the data”
Recent developments in the legal perspective
Overview of the scientific and medical perspective
Factors that combine to influence/alter traditional actuarial techniques in use today

Continuing education credits:

CFA Institute – 1.5 hours • CPE credits – 1.5 hours • Details available online


Webinar: New Science and Law in Asbestos Litigation 

November 19, 2015 • 1:00-3:30 p.m. ET