GlobalTort : Commentary from lawyers and experts on mass torts, law, insurance and science

Alison Frankel at AmLaw published today this significant story on the continuing impact of the limited thinking jurisdictional thinking embodied in the  Morrison securities law decision. The article tees off from a new ruling in which a US federal judge invoked Morrison to hold that the US Justice Department cannot enforce previously won injunctive,  RICO-based  relief against global tort giant British American Tobacco. Ms. Frankel also notes other, similar post-Morrison rulings that defeat using US courts and laws to police global torts. Note further that the lower court judges issuing these rulings are not shy judges - Judge Kessler has coped for years with the government's massive claims against big tobacco, and another of the judges is the well-known and outspoken Judge Rakoff. Moreover, as Ms. Frankel points out, one of the similar rulings involved a RICO suit by the EU - yes, really, the EU  itself - against big tobacco.

It's disturbing to watch the impacts of the limited jurisdictional thinking of Chief Justice Roberts' Court. Limited jurisdictional thinking is outmoded in this age of virtually instant, global movement of corporations, people, and capital. And, global corporate movement and gaming of laws is not just economic theory - it is reality when corporate entities define their mission almost solely around the short-term creation of  money (a/k/a shareholder value), regardless of the long-term consequences and harms. Need examples of such corporate behavior?    Go here and read/watch the  March 27, 2011 story by Leslie Stahl of 60 Minutes on corporations creating tax dodges by moving themselves, their people and, supposedly, moving the location of IP assets.  Or, read David Kocieniewski's  great NYT story on GE's massive, global gaming of tax laws by a massive tax department viewed as a profit center. (Note also this blog post by tax law professor  Paul Caron highlighting GE's tax strategies and its corporate service mark: Imagination at Work.)  Or, read my prior post on Australian tort defendant James Hardie skipping around the world seeking shelter from tort storms it created.   

Where does this all end? Hard to say. It does, however, seem plain that the world's societies need to act to create faster and better global forums for enforcement of national and international laws and treaties, and courts need to revisit their "traditional thinking" about "traditional notions" of due process, territorial reach and justice for "foreign corporations."   New legal forums and rules need to evolve - quickly - due to globalization, the Internet, jet planes and other factors that make  modern life so global in so many ways.  Since global regulators largely do not yet exist and may never exist, new processes need to evolve to cope with global torts.  For now, decisions such as Morrison are creating jurisdictional black holes that bright lawyers and some companies can and will exploit until stopped.

Ultimately, these stories highlight the truth of a thesis repeatedly argued by a brilliant friend who worked for years in global finance:  Capital and companies will run wild until regulators and/or courts become exponentially smarter,  faster and global.

 In the long term, regulatory and jurisdictional black holes are bad for humans and other creatues because the holes allow toxin sellers to escape paying for the consequences of their actions. And, juridctional black holes also can be bad for corporations, at least in some settings.  Why? Because corporations can be attacked by global pirates, whether using the high seas, the web or other tactics to plunder and steal. Imagine, for example, BAT's reaction if a US court refused to grant an injunction against a "foreign" entity that blatantly counterfeited cigarettes. Or, imagine GE's reaction if a US court declined to enjoin an offshore,  "foreign" entity from selling medical scanners built around stolen GE technology subject to US patents.

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ScienceDaily strikes again by highlighting an interesting new article from Lancet (one of the finest medical journals in the world). The article is by a medical historian who focuses on medical negligence. Here's the summary from the author's university press release:

"The UK coalition government's planned NHS and welfare reforms, and their use of 'nudge' theory, hark back to ideas on welfare and recession from the end of the nineteenth century, according to studies by a University of Leicester historian whose research paper has recently been published in the Lancet.

Dr Kim Price’s article entitled, ‘The crusade against out-relief: a nudge from history’ is his second in the Lancet within a year drawing parallels between past and present medical negligence.

Dr Price, a Wellcome Trust Research Fellow in the School of Historical Studies,  commented:   “Broadly speaking, I am interested in medical negligence under state medicine and I have focused on the pre-NHS (pre-1948) welfare system in the UK.

“The instability of doctor-patient relations has led to a fragile balance of power that is by no means set for the foreseeable future.

“The welfare debate has been divided for centuries by ideologically-driven attitudes to philanthropically, privately or publicly funded medicine.

“I see medical negligence as a complex relationship between time and place and, to varying degrees, society, law, ethics, medical practice, health professionals, and patients.”

In his paper in the Lancet, Dr Price argues that the UK’s Coalition Government has begun to tackle the annual deficit with the language and policy aims from the recession of 1870.

In the late 19^th century the Conservatives instigated a policy to cut back welfare expenditure and lessen reliance on poor law out-relief.   This included cutting medical extras and payments to lone mothers, widows, the elderly, the chronically sick, and people who were disabled or had mental illness.

The result, Dr Price believes, lowered the health of many families and increased the number of people who could no longer be supported at home.

Dependency was criticised by both government and ratepayers, until by the 1880s the Victorian obsession with thrift and self-help had taken hold throughout the voting classes. Philanthropy and charity, however, could not compensate for government aid, and institutional care drove up national expenditure.

Dr Price argues that, under current UK Coalition government proposals for GP consortia, and its potential conflicts of interest, the doctor-patient relationship is in peril of shifting too far in favour of doctors and undermining the trust of patients.

This too harks back to 19^th century Poor Law doctors who had to choose between their private and public patients, resulting in widespread neglect of the poor. As a result relations between doctors and poor patients suffered.

At the turn of the 19^th and 20^th centuries the drive to cut welfare backfired and fuelled change.   Liberal (and later, Labour) reformers raged against the “false economy” of a nation without welfare so that by the start of the 20th century, the tide had begun to turn.

The people’s health took centre stage when working class people as a whole were allowed to vote, resulting in a series of Acts which led towards the creation of the National Health Service in 1948."

Dr. Price's other papers and contact information are highlighted here in a press release by his university.

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 Wow - I took  a few days off for spring break with my daughters, and now return to find the US Supreme Court recognizing that product defect information may be important to investors. In this post, SCOTUS blog provided the gist of the story as follows:

"In Matrixx Initiatives, Inc. v. Siracusano, the Court held that a drug company’s investors, when suing for securities fraud, may rely on the company’s failure to disclose reports regarding the adverse effects of one of its drugs, even when the number of reports is not statistically significant. The WSJ Law Blog describes the unanimous decision as a “rare win” for securities-fraud plaintiffs. Indeed, Adam Liptak of the New York Times reports that the decision may be especially frustrating for businesses because it “reject[ed] the proposed categorical rule in favor of a contextual inquiry,” “provid[ing] only limited guidance to companies and lower courts.” NPR, the Christian Science Monitor, USA Today, JURIST, ABA Journal, and Bloomberg all have additional coverage of the decision."

The implications will take some time to fully show themselves, but one can hope his opinion foments significant and positive changes in disclosures for and thinking about product defects and risks. One can reasonably expect public companies to modify their approaches to annual report disclosures, 10Ks, 8Ks and press releases. Over time, one might also see spin-offs of or  "going private" transactions for business units or entities selling toxins, or suspected toxins.

For a mental exercise, suppose you are the Chief Science Officer of Chemical Co. Suppose you sell XYZ chemical, and have issued annual reports that predict brisk sales and do not mention XYZ causing cancer.  Suppose also that XYZ chemical is the subject of a new article in Nature (a prestigious and reputable science journal) which concludes that inhaling XYZ chemical changes epigenomes or alters cell signaling pathways, thus promoting or "causing" cancer.  Or, suppose IARC or EPA issue papers finding that XYZ chemical "causes cancer."  (For a not so hypothetical example, consider the findings mentioned in this recent post on formaldehyde.)

Now change the facts. What do you disclose to investors if you’ve previously said the product is safe, or have not addressed the topic at all?

The opinion also is especially interesting because of its discussion of a broad range of potentially material sources of information about product dangers:

"The FDA similarly does not limit the evidence it considers for purposes of assessing causation and taking regulatory action to statistically significant data. In assessing the safety risk posed by a product, the FDA considers factors such as “strength of the association,” “temporal relationship of product use and the event,” “consistency of findings across available data sources,” “evidence of a dose-response for the effect,” “biologic plausibility,” “seriousness of the event relative to the disease being treated,”“potential to mitigate the risk in the population,” “feasibility of further study using observational or controlled clinical study designs,” and “degree of benefit the product provides, including availability of other therapies.”⁸ FDA, Guidance for Industry: Good Pharmacovigilance Prac- tices and Pharmacoepidemiologic Assessment 18 (2005)(capitalization omitted), http://www.fda.gov/downloads/ Regulating Information/Guidances/UCM126834.pdf (all Internet materials as visited Mar. 17, 2011, and available in Clerk of Court’s case file); see also Brief for United States as Amicus Curiae 19–20 (same); FDA, The Clinical Im- pact of Adverse Event  Reporting (1996) (similar),http://www.fda.gov/downloads/safety/MedWatch/UCM168505.pdf. It “does not apply any single metric for determining when additional inquiry or action is necessary, and it certainly does not insist upon ‘statistical significance.’” Brief for United States as Amicus Curiae 19.

Not only does the FDA rely on a wide range of evidence of causation, it sometimes acts on the basis of evidence that suggests, but does not prove, causation. For example, the FDA requires manufacturers of over-the-counter drugs to revise their labeling “to include a warning as soon as there is reasonable evidence of an association of a serious hazard with a drug; a causal relationship need not have been proved.” 21 CFR §201.80(e). More generally, the FDA may make regulatory decisions against drugs based on post marketing evidence that gives rise to only a suspicion of causation. See FDA, The Clinical Impact of Adverse Event Reporting, supra, at 7 (“[A]chieving certain proof of causality through post marketing surveillance is unusual. Attaining a prominent degree of suspicion is much more likely, and may be considered a sufficient basis for regulatory decisions” (footnote omitted)).

Companies, however, do not face a disclosure issue all the time. Instead, according to the Court:

Moreover, it bears emphasis that §10(b) and Rule 10b–5(b) do not create an affirmative duty to disclose any and all material information. Disclosure is required under these provisions only when necessary “to make . . . statements made, in the light of the circumstances under which they were made, not misleading. 17 CFR §240.10b–5(b);see also Basic, 485 U. S., at 239, n. 17 (“Silence, absent a duty to disclose, is not misleading under Rule 10b–5”).Even with respect to information that a reasonable investor might consider material, companies can control what they have to disclose under these provisions by controlling what they say to the market.

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You have to love Judge Rakoff's willingness to ask hard questions and make comments about public policy. His current questions  and comments - highlighted by this Dealbook article -  are related in this new opinion.    The question he posed goes to the SEC  practice of allowing defendants to settle claims  “without admitting or denying wrongdoing.”

Judge Rakoff's comments and history lesson are set out below, and are well worth considering. In fact, why does our government let crooks deny being crooks ?

"Actually, the history of the practice is a bit more complicated than the S.E.C.’s footnote suggests. See Tr. 12/22/10 at9.  Long before 1972, the S.E.C. had already begun entering into consent decrees in which the defendants neither admitted nor denied the allegations. This was strongly desired by the defendants because it meant that their agreement to the S.E.C.’s settlements would not have collateral estoppel consequences for parallel private civil actions, in which the defendants frequently faced potential monetary judgments far greater than anything the S.E.C. was likely to impose. But there were benefits for the S.E.C. as well. First, the practicemade it much easier for the S.E.C. to obtain settlements. And second, at a time (prior to 1972) when the S.E.C.’s enforcement powers were largely limited to obtaining injunctive relief, the S.E.C.’s focus was somewhat more centered on helping to curb future misconduct by obtaining access to the Court’s contempt powers than on obtaining admissions to prior misconduct.

But, by 1972, it had become obvious that as soon as courts had signed off on such settlements, the defendants would start public campaigns denying that they had ever done what the S.E.C. had accused them of doing and claiming, instead, that they had simply entered into the settlements to avoid protracted litigation with a powerful administrative agency. Thus, the real change effected by the S.E.C.in 1972 was the requirement that a defendant who agreed to a consent judgment “without admitting or denying the allegations of the Complaint” nevertheless agree that the defendant would not thereafter publicly deny the allegations. To this end, each of the proposed Consent Judgments now presented to this Court is accompanied by a formal written “Consent” of the defendant agreeing, pursuant to 17C.F.R § 205.5, “not to take any action or to make or permit to be made any public statement denying, directly or indirectly, any allegation in the complaint or creating the impression that the complaint is without factual basis.”

The result is a stew of confusion and hypocrisy unworthy of such a proud agency as the S.E.C. The defendant is free to proclaim that he has never remotely admitted the terrible wrongs alleged by the S.E.C.; but, by gosh, he had better be careful not to deny them either(though, as one would expect, his supporters feel no such compunction). Only one thing is left certain: the public will never know whether the S.E.C.’s charges are true, at least not in a way that they can take as established by these proceedings.

This might be defensible if all that were involved was a private dispute between private parties. But here an agency of the United States is saying, in effect, “Although we claim that these defendants have done terrible things, they refuse to admit it and we do not propose to prove it, but will simply resort to gagging the right to deny it.”

The disservice to the public inherent in such a practice is palpable. Confronted with the same choice, the United States Department of Justice has long since rejected allowing defendants, except in the very most unusual circumstances, to enter into pleas of nolo contendere, by which a defendant accepts a guilty plea to a criminal charge without admitting or denying the allegations. See U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-16.010 (2008)(“United States Attorneys may not consent to a plea of nolo contendere except in the most unusual circumstances and only after a recommendation for doing so has been approved by the Assistant Attorney General responsible for the subject matter or by the Associate Attorney General, Deputy Attorney General or the Attorney General.”); U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-27.500(2006) (“The attorney for the government should oppose the acceptance of a plea of nolo contendere unless the Assistant Attorney General with supervisory responsibility over the subject matter concludes that the circumstances of the case are so unusual that acceptance of such a plea would be in the public interest.”). As the great U.S. Attorney General Herbert Brownell, Jr. stated in a 1953 departmental directive:[A] person permitted to plead nolo contendere admits his guilt for the purpose of imposing punishment for his acts and yet, for all other purposes, and as far as the public is concerned, persists in his denial of wrongdoing. It is no wonder that the public regards consent to such a plea by the Government as an admission that it has only a technical case at most and that the whole proceeding was just a fiasco .See Comment, U.S. Dep’t of Justice, U.S. Attorneys’ Manual § 9-27.500(2006).

Moreover, as a practical matter, it appears that defendants who enter into consent judgments where they formally state, with the S.E.C.’s full consent, that they neither admit nor deny the allegations of the complaint, thereafter have no difficulty getting the word out that they are still denying the allegations, notwithstanding their agreement not to “make any public statement” denying the allegations. Reacting to the equivocal press releases issued by some defendants after such settlements, S.E.C. Commissioner Luis A. Aguilar recently expressed the “hope that this revisionist history in press releases will be a relic of the past,” but added “If not, it may be worth revisiting the Commission’s practice of routinely accepting settlements from defendants who agree to sanctions ‘without admitting or denying’ the misconduct.” See Commissioner Luis A. Aguilar, Speech by SEC Commissioner: Setting Forth Aspirations for2011, Address to Practising Law Institute’s SEC Speaks in 2011 (Feb.4, 2011).

For now, however, the S.E.C.’s practice of permitting defendants to neither admit nor deny the charges against them remains pervasive, presumably for no better reason than that it makes the settling of cases easier. Although this Court must give substantial deference to the Commission’s views, even if only embodied in a practice rather than in a fully articulated policy, the Court is ultimately obliged to determine whether such a practice renders any given proposed Consent Judgment so unreasonable or contrary to the public interest as to warrant its disapproval.

***

 Under these unusual  circumstances – but reserving for the future substantial questions of whether the Court can approve other settlements that involve the practice of “neither admitting nor denying” – the Court approves the proposed Consent Judgments."

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Anyone with litigation savvy knows that the Internet has profoundly changed mass tort litigation and claiming through its global reach, and the ability to target ads towards people using the Internet to gather information on specific topics.  My Internet reading this weekend accidentally turned up a new use for the Internet web. The new use is  "re-branding" asbestos bankruptcy trusts as "lung cancer trust funds."  Not surprisingly, the new use is the brainchild of the David Law Firm, one of the pioneers in using the Internet to attract clients.

What is the re-branding ?  It consists of Internet ads which re-brand "asbestos trust funds"  and advertise them as " lung cancer trust funds."   The example I encountered was an ad linked to this ScienceDaily summary of a medical journal article on lung cancer and biomarkers (visited March 13, 2011). The ad linked to this web page  from the David Law firm.

        The advertising link I saw is pasted below: 

After clicking the link,  the reader is taken to a web page that makes no mention of asbestos exposure. Instead, the page focuses solely on having lung cancer, regardless of the causation.   The text  of the message is pasted below; the web page also includes a video focused on lung cancer.

___________________________________________________________________________________________

Thank You For Wanting to Learn More About Lung Cancer

Most Americans don't realize that more people die from lung cancer every year than from breast, colorectal, pancreatic, and prostate cancers combined. If you or a loved one has been affected by lung cancer, here are some things that you might find helpful:

1.See if you qualify for financial compensation. U.S. Compensation Trust Funds have been set aside, with initial funding of 30 Billion dollars, to financially assist individuals with lung cancer. Fill in the form on this page or call 1-800-998-9729 to find out more.

2.Become an advocate for the early detection of lung cancer. Encourage others to have regular check-ups. Lung cancer is not just a concern for smokers; between 22,000 and 32,000 non-smoking Americans are diagnosed each year with lung cancer. If you want to get involved join me, and my friends at the Bonnie J. Addario Lung Cancer Foundation, in our efforts to eradicate lung cancer.

Thanks for taking a stand; together we can make a difference.

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Karen Sloan's NLJ article summarizes "gl global" advice from some senior lawyers with reason to know. The advice seems obvious, and yet ......

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A Mail & Guardian online article ( here)  describes 18 upcoming tuberculosis and silicosis  trials in South Africa against mining entity Anglo American. Key excerpts state:

"The case is likely to be heard in the South Gauteng High Court next year, after seven years of research by a high-powered legal team from Legal Aid South Africa and the Legal Resources Centre, advised by UK-based human rights law firm Leigh Day & Co.

The 18 test cases have been selected to best represent the circumstances of tens of thousands of other ex-mineworkers who -- if their litigation against Anglo American South Africa (AASA) is successful -- could also claim damages from other companies in the mining industry.

***

According to Leigh Day partner Richard Meeran: "Anglo have been operating for decades and in that time they’ve seen people dying. They knew with certainty that their operations were unsafe. That’s not just negligence, is it? It shows an incredible disregard for human life over a long period of time."

In 2000 Meeran successfully litigated against a parent company, Cape plc, claiming that the mining giant’s subsidiaries knowingly exposed thousands of people -- mainly black mineworkers -- to the effects of asbestos in Limpopo and the Northern Cape.

***

Anglo American South Africa does not believe that it is in any way liable.

Anglo spokesperson Pranill Ramchander said the company will argue that "the claimants were employed by South African gold mining companies in which AASA had an interest of less than 25% ... these companies were responsible for the health and safety of their employees and took reasonable steps to protect them".

He said: "Anglo American is sympathetic towards those miners who have contracted silicosis and fully supports initiatives ... to ensure that they are properly treated and provided with statutory compensation and that silicosis is ultimately eliminated altogether."

Researchers Neil White and Anna Trapido estimated in the late 1990s that the entire South African mining industry would have to pay around R10-billion to compensate all its former mineworkers with respiratory diseases scattered around Southern Africa."

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Formaldehyde.  IARC and now EPA have deemed it a "known carcinogen."  Go here for a collection of EPA's work on formaldehyde.

The reaction? Chemical companies and others are worried.  Proof? See below from theAmerican Conference Institute - the conference presenters work hard to stay ahead of the curve.

American Conference Institute's  
2^nd National Forum on
Chemical Products Liability & Environmental Litigation
Develop cost-effective defense strategies and adapt to constantly
evolving scientific standards, technologies, and regulations
April 27 - 28, 2011 | Sutton Place Hotel | Chicago, Illinois

OVERVIEW    SPEAKER FACULTY     DOWNLOAD PDF AGENDA     REGISTER NOW    

Attend unique and cutting-edge master classes accompanying
ACI's 2^nd National Forum on Chemical Products Liability and Environmental Litigation 

Formaldehyde exposure cases are predicted to become as prolific as benzene litigation.  Recent studies have linked formaldehyde exposure to rare forms of cancer, the EPA has indicated that formaldehyde is a known human carcinogen (in its Toxicological Review of Formaldehyde Inhalation Assessment: In Support of Summary Information on the Integrated Risk Information System [IRIS] ), and a wave of litigation is all but imminent.  Prepare yourself by attending the unique master class dedicated to understanding the science of formaldehyde, exposure pathways, and possible defense scenarios.  This invaluable session, led by Lawrence Riff, a leading toxic tort litigator at Steptoe & Johnson, Dr. Jonathan Whysner, a preeminent medical toxicologist at Columbia University, and Steven Washburn, CEO of the environmental consulting firm Environ, will keep you one step ahead of the rest as this exciting field of litigation develops. 

In addition, prepare for R.E.A.C.H. requirements in the U.S.  EPA under the Obama Administration has been vigorously enhancing chemical regulations and labeling requirements.  TSCA reform is fully underway and it is only a matter of time before the stringent EU standards are mirrored in the U.S.  Attend this master class and learn to navigate the statutory framework of R.E.A.C.H. as ExxonMobil's Ted Ray and Fulbright & Jaworski's Jeff Margulies draw on parallels currently being implemented in the U.S. (CA's Green Chemistry Initiative) and abroad.

Gain the edge you need over your competition and maximize your benefit from the Chemical Products conference; attend the post-conference master classes to learn about cutting edge litigation trends and international requirements that affect companies in the U.S.

At the main conference, meet, network, and learn from the nation's leading in-house counsel from 13 of the top chemical, oil, and gas companies, includingAkzoNobel, Chevron, Dow AgroSciences, Dow Chemical Co., DuPont, ExxonMobil, Georgia Gulf Corp., Occidental Chemical, PPG Industries, Praxair, Sunoco, Shell Oil, and Solvay North America , who will participate on two separate panels tackling issues such as controlling litigation costs and resolving discovery challenges.  The esteemed in-house participants will also be joining outside counsel experts on numerous substantive panels. 

___________________________________________________________________________

How are these effects being found? Old ways and new ways. For some insights into new ways, consider this abstract from a January 2011 medical journal article on disease in exposed workers.

"Formaldehyde, classified by the IARC as carcinogenic in humans and experimental animals, is a chemical agent that is widely used in histopathology laboratories. The exposure to this substance is epidemiologically linked to cancer and to nuclear changes detected by the cytokinesis-block micronucleus test (CBMN). This method is extensively used in molecular epidemiology, since it provides information on several biomarkers of genotoxicity, such as micronuclei (MN), which are biomarkers of chromosomes breakage or loss, nucleoplasmic bridges (NPB), common biomarkers of chromosome rearrangement, poor repair and/or telomere fusion, and nuclear buds (NBUD), biomarkers of elimination of amplified DNA. The aim of this study is to compare the frequency of genotoxicity biomarkers, provided by the CBMN assay in peripheral lymphocytes and the MN test in buccal cells, between individuals occupationally exposed and non-exposed to formaldehyde and other environmental factors, namely tobacco and alcohol consumption. The sample comprised two groups: 56 individuals occupationally exposed to formaldehyde (cases) and 85 unexposed individuals (controls), from whom both peripheral blood and exfoliated epithelial cells of the oral mucosa were collected in order to measure the genetic endpoints proposed in this study. The mean level of TWA8h was 0.16 ± 0.11 ppm (<detection limit until 0.51 ppm) and the mean of ceiling values was 1.14 ± 0.74 ppm (0.18–2.93 ppm). All genotoxicity biomarkers showed significant increases in exposed workers in comparison with controls (Mann–Whitney test, p < 0.002) and the analysis of confounding factors showed that there were no differences between genders. As for age, only the mean MN frequency in lymphocytes was found significantly higher in elderly people among the exposed groups (p = 0.006), and there was also evidence of an interaction between age and gender with regards to that biomarker in those exposed. Smoking habits did not influence the frequency of the biomarkers, whereas alcohol consumption only influenced the MN frequency in lymphocytes in controls (p = 0.011), with drinkers showing higher mean values. These results provide evidence of the association between occupational exposure to formaldehyde and the presence of genotoxicity biomarkers."

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Humorous parodies are powerful. Two from youtube lampoon the supposedly "independent"  adjusters  who work for insurance companies.

This one addresses the absurdity of the handling of some car crash claims. After watching it, ask yourself : why do insurance companies ask everyone to clam up and deny fault even when fault is obvious, and why do people follow that advice ?

Sadly, most insurance compant adjusters no longer have any authority, except to say no, as is exemplified by this video.   
 

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Global tort litigation includes numerous battles within the war. This week, Chevron is trumpeting the fact that it won a preliminary  injunction ruling seeking to bar enforcement of a $ 9 billion judgment entered in Ecuador because of Chevron's trashing of  various swaths of land in the nation, and alleged resulting cancers and other diseases.   Alison Frankel provides analysis and links in this AmLaw Daily story.

The appeals and future battles will be interesting. Among other issues, Judge Kaplan refused to consider  at this time various "unclean hands" issues raised by plaintiffs, saying in a separate order that the issue was raised too late when compared to concerns about enjoining efforts to collect on the judgment.  One has to wonder if the plaintiffs were too unyielding in refusing to agree to extend deadlines. But one also has to wonder how Chevron will fair when all the issues are on the table.  This war is far from over.

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President Obama and others argue that better science will save time, money, and lives. Some doubt the argument, but it's true.  Here's a promising example that popped up this past week. It's this March 4 ScienceDaily article on successful use of ultrasound and computer algorithms to distinguish between benign and malignant masses in the breast. The new technique appears to be much easier for the woman, as well as being cheaper,faster and safer than conventional approaches.                                                                                           The method draws heavily from today's strong computer power. Key parts of the  article are pasted below, but it’s well worth a full read for both the science and some insight into the changes being brought by today’s computing power and creative thinking by a bright PhD student.

"ScienceDaily (Mar. 4, 2011) — Recent research by doctoral student Sevan Goenezen holds the promise of becoming a powerful new weapon in the fight against breast cancer. His complex computational research has led to a fast, inexpensive new method for using ultrasound and advanced algorithms to differentiate between benign and malignant tumors with a high degree of accuracy.

***

Goenezen's research offers the hope of dramatically reducing the need for invasive, uncomfortable, and stress-inducing biopsies, and perhaps even replacing mammograms. It uses a new technique to analyze images captured with a noninvasive, radiation-free ultrasound device, locate tumors, and determine if the tumor is malignant. The only required equipment is a specific type of ultrasound machine -- which generally costs around $10,000, far less than X-ray equipment -- and a common personal computer. Thanks to these new algorithms, results can be computed in less than five minutes on a high-end PC.

This new technique uses ultrasound images of breast tissue to infer the mechanical properties of the tissue as it is compressed. The structure of collagen fibers within malignant tissues is very different from the collagen fiber structure in benign tissue. This method quantifies the non-linear behavior of the tumor tissue to determine whether it is cancerous.

In a clinical study, Goenezen used this strategy to analyze 10 data sets, five of which were from patients with benign tumors, and five with malignant tumors. The system correctly diagnosed nine out of the 10 patients. The lone error was a false positive, meaning the system indicated the tumor was malignant when it was actually benign."

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Remember that  law school class time many thought wasted when focusing on choice of law and jurisdiction issues ?  Today, the class time could  be far more interesting if professors and books are covering the impacts of globalization and modern corporate behavior.  One example, covered in this post about a book by Prof. Lynn LoPucki,  involves the Delaware bankruptcy courts trying to attract litigation through a "race to the bottom"  that resulted in lousy but predictable outcomes in chapter 11 cases.  And, this prior post covered examples of Australian and US corporations moving from county to country in search of more favorable law and lower taxes. 

Today, the topic arises again because of new examples. Thus, the SEC has recently  proposed regulations aimed at reigning in compensation payments for executives at hedge funds. Meanwhile, the UK's FSA last week released this new report on systemic risks posed by hedge funds, with some thoughts on regulation. On the other hand, however, some hedge funds are fleeing regulation, as illustrated by this recent Financial Times article by Sam Jones on hedge funds fleeing London to move to Malta to obtain lesser regulation and  lower taxes. Set out below are two excerpts from Mr. Jones' article. The article illustrates the point that some hedge funds are in fact fleeing regulation. Should that be legal ? How do governments effectively make it  "illegal?"  

" David Butler, founder of the consultancy Kinetic Partners, which advises hedge funds on their domicile and tax arrangements, said: “It’s dozens, rather than hundreds, that are moving there at the moment, but opening an office there gives managers flexibility. [They] are sitting in London, saying: ‘I have too much country risk here – the tax rate is through the roof, the regulations are too intrusive’.”

The Maltese financial regulator, the MFSA, has meanwhile been keen to ape the kind of “light touch” regulation of the hedge fund industry once propounded by the UK’s FSA – one of the foundations of London’s success as Europe’s main hedge fund centre.

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"A former member of The Goldman Sachs Group's board of directors was charged today with giving confidential tips to Galleon Management hedge fund founder Raj Rajaratnam. It was the latest allegation in a far-reaching Securities and Exchange Commission investigation of insider trading." 

Go here for one of many iterations of the story.

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