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

Update on the Status of the Delaware Litigation Industry in Terms of Changes in State Court Judges

Posted in Litigation Industry

The status of the litigation industry in Delaware in terms of changes in state court judges is covered in a July 30, 2014 post from Edward McNally at Morris James. Delaware of course remains one of the outlier jurisdictions that lacks an abundance of the historic economic advantages (e.g. land, oil, gold, etc), and so it seeks to thrive by creating an industry tied to particular sets of financial interests and related laws. Despite claims that entrepreneurs thrive on risk, the popularity and existence of Delaware and other outlier jurisdictions proves that the opposite is true – investors want to maximize certainty and predicability.

The review of the Delaware industry does not mention other aspects of the Delaware litigation industry. For example, the post does not cover the October 2013 failure of the efforts to create secret Delaware arbitrations runs by Chancery judges. The update also does not cover changes in the Delaware bankruptcy court.  For years, Delaware and New York lawyers and businesses built a thriving bankruptcy practice with predictable rulings.  The court’s rulings, however, produced a large number of economic failures, according to Professor Lynn LoPucki’s  2005 book:  Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts.

Limiting Bankruptcy Court Exculpations Against Liability – Objections from a US Trustee to Requests for Too Much

Posted in Asbestos Bankruptcy, Litigation Industry, Mass Tort Issues

Bankruptcy lawyers are seldom shy in asking for too much in chapter 11 plan confirmation orders. And,  too often, the lawyers and their clients obtain too much when objections are lacking due to the chummy world of mutual backscratching and other facets of bankruptcy deals. A result is that there are plenty of bankruptcy orders in the world that are unenforceable, if ever scrutinized. It is therefore good to see that at least some members of the U.S Trustees office are objecting to plan confirmation documents that ask for too much in the way of orders and injunctions regarding exculpations from liability. A June 27, 2014 example is here, from the MedLab case in Delaware.

Good News for Insureds on Legal Fee Reimbursement – “Washington Federal Court Orders Broad Discovery of AIG Defense Rates”

Posted in Insurance Coverage for Tort Claims

A July 25, 2014 post from The Northwest Policyholder provides good news for insureds, and potentially for defense counsel. The good news? The following quote provides just part of the good news – see the post for more specifics.

“First, the court held that AIG had opened the door to discovery of rates paid by AIG and all of its subsidiaries by admitting that there is an AIG-wide committee that evaluates law-firm qualifications and sets panel rates.” 

Fostering Cross-border Litigation – ABA Opinion 464 Allows Dividing Legal Fees with Nonlawyers

Posted in Global Tort Litigation, Litigation Industry

Cross-border litigation with UK lawyers  and non-lawyers (and others) is becoming easier for US lawyers. An example arises from ABA Formal Opinion 464. An ABA Journal article from November 2013 provides background and color.

The bottom line is that the opinion allows cross-border fee sharing with nonlawyers, in some circumstances. It states:

“In summary, a division of a legal fee by a lawyer or law firm in a Model Rules  jurisdiction with a lawyer or law firm in another jurisdiction that permits the sharing of legal fees with nonlawyers does not violate Model Rule 5.4(a) simply because a nonlawyer could  ultimately receive some portion of the fee under the applicable law of the other jurisdiction.”

The opinion framed the issue as follows:

This opinion considers whether a lawyer subject to the Model Rules may divide a legal fee with another lawyer or law firm practicing in a jurisdiction where the other lawyer or law firm might eventually distribute some portion of that fee to a nonlawyer.  In contemporary practice, lawyers routinely work with lawyers from other law firms, including lawyers and law firms in other jurisdictions, to represent clients in particular matters. The August 2012 amendments to the Model Rules expressly recognize these common arrangements. New Comment [6] to Model Rule 1.1 explains that a lawyer may retain or contract with other lawyers outside the lawyer’s own firm to provide or assist in the provision of legal services to a client anddescribes how a lawyer should approach these relationships with both the client and the other lawyers.

Sometimes the other lawyers with whom a lawyer may work are admitted and practice in other jurisdictions, both within and outside the United States, a situation that has become morecommon with the growth of national and international commerce. Those other jurisdictions may have professional conduct rules identical or similar to Model Rules 1.5(e) and 5.4(a), which dealwith the allocation of legal fees among lawyers and nonlawyers. But some jurisdictions, like the District of Columbia and the United Kingdom, have rules that differ significantly from Model.” 

“Sustainability and human health issues pertinent to fibre reinforced polymer composites usage: A review”

Posted in Asbestos

A new review article that may someday be relevant to toxic tort litigation.   ”Sustainability and human health issues pertinent to fibre reinforced polymer composites usage: A review,”  doi:10.1177/0731684414521087, Journal of Reinforced Plastics and Composites, June 2014 vol. 33 no. 111069-1084.

The abstract states:


The specific properties of fibre reinforced polymers give them a lot of advantages over traditional materials but the long life of polymeric composites poses serious environmental threats raising sustainability concerns. The other issue of importance concerning the innovators and environmentalists in the mass usage of this material is its health impacts on human beings. This paper thus attempts to highlight and surface out the issues related to fibre reinforced polymers’ sustainability and their health impacts on human beings, by reviewing past studies on the subject, to examine critically the extensive body of published data, prior observations and ideas on the subject in order to identify and analyse those features that are intrinsic and unique to fibre reinforced polymers. This would thus serve as a conceptual model for future research on fibre reinforced polymer composites sustainability and health concerns.”


The Asbestos Bankruptcy Saga Continues – Where Are They Now, Part VII

Posted in Asbestos, Asbestos Bankruptcy

Mark Plevin, Leslie Davis, Tacie Yoon and Rebecaa Suarez are the authors of the seventh edition of  the valuable series of papers chronicling asbestos bankruptcies. According to PR from Mark on LinkedIn, “Mealey’s Asbestos Bankruptcy Report is now publishing “Where Are They Now, Part 7: An Update On Developments In Asbestos-Related Bankruptcy Cases.” The article is the newest installment in a series that Crowell & Moring started publishing in Mealey’s Asbestos Bankruptcy Report in 2001.”