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Category Archives: Constitutional Law/Mass Tort Law

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SCOTUS Denies Cert for GM in the Ignition Switch Cases – Due Process in Bankruptcy Gets Rebooted to Some Degree

Posted in Asbestos, Asbestos Bankruptcy, Constitutional Law/Mass Tort Law, Litigation Industry, Mass Tort Issues
Due process in bankruptcy has been rebooted to some degree. How? Through SCOTUS’ April 24, 2017 denial of GM’s cert petition from the Second Circuit’s ruling against GM in the intersection between GM’s chapter 11 proceedings and the ignition switch cases. GM’s cert petition had been supported by the U.S. Chamber of Commerce and the… Continue Reading

Update on SCOTUS and GM’s Bid for Certiorari in the Ignition Switch Cases

Posted in Constitutional Law/Mass Tort Law, Due Process, Futures Reps
According to this page of the SCOTUS web site, underlying plaintiffs timely filed their briefs opposing GM’s bid for certiorari on February 16, 2017. The page shows the briefs as follows (but does not include links to the briefs). So far, the briefs also are not on LAW360.   No. 16-764 Title: General Motors LLC,… Continue Reading

Brief and Declaration of Former National Security Officials in State of Washington v. Trump

Posted in Civil Rights, Due Process, Executive Orders, Policy Issues
The issues in State of Washington v. Trump can be framed broadly or narrowly. If framed broadly, the issues may have notable impacts as precedent that goes to the tripartite structure of our government, and the extent to which courts can, should, or will “look behind” the actual words of an executive order. The brief… Continue Reading

New GM Seeking Further Hearings on 2d Circuit’s Due Process Ruling

Posted in Asbestos, Asbestos Bankruptcy, Constitutional Law/Mass Tort Law, Due Process, Litigation Industry, Mass Tort Issues
Not surprisingly, GM has now publicly asserted it will try every appellate option to try to change the 2d Circuit’s ruling that enforced the rights of claimants to a due process hearing  before being deprived of state law rights against manufacturers of purportedly defective products.  GM’s intentions are described in a July 27, 2016 story… Continue Reading

Finally, Equitable Mootness May Be Dead, At Least in the Third Circuit?

Posted in Asbestos Bankruptcy, Constitutional Law/Mass Tort Law, Due Process, GM Bk
Hurray, equitable mootness appears to be dead, at least in the 3rd Circuit. What is it? In short form, it’s a (nonsensical) rationale for denial of the opportunity to appeal bankruptcy court decisions. Is it in the bankruptcy code? No. Then why does it exist? Because bankruptcy lawyers invented an outcome liked by some, and… Continue Reading

Equitable Mootness – Yet Another Due Process Violation in Chapter 11 Proceedings

Posted in Bankruptcy, Due Process
Every litigant faces the possibility of trial and appeal. But Wall Street finds that risk annoying. So, bankruptcy courts invented the doctrine of “equitable mootness” to cut off appeals. The doctrine is still alive and kicking in the east coast circuits, but took at least a flesh wound in a recent Ninth Circuit ruling. The… Continue Reading

Lyondell Claims Benzene Claims are Barred by Prior Chapter 11 Plan and Injunction

Posted in Asbestos Bankruptcy, Bankruptcy, Benzene, Constitutional Law/Mass Tort Law, Litigation Industry
Defendants related to uber-sized Lyondell Chemical are now seeking to use a recent chapter 11 injunction to try to bar claims that benzene caused a blood cancer. The defense motion makes no mention of the chapter 11 proceeding including any “futures representative” type of person acting on behalf of future claimants. The motion also makes… Continue Reading

Labels and SCOTUS

Posted in Constitutional Law/Mass Tort Law
Here is a cogent article on why broad use of labels for judges often fails to provide much help in understanding decisions from SCOTUS, and other courts. The article is by Professor Tim O’Neill and appeared in the March 4, 2015 issue of the Chicago Daily Law Bulletin. The article is in part a commentary/book… Continue Reading

Contrasts in Access to Data – Asbestos Bankruptcies and Underlying Litigation, versus Concussion Litigation

Posted in Asbestos, Class Actions/Aggregate Litigation, Constitutional Law/Mass Tort Law, Discovery, Due Process, Global Tort Litigation, Litigation Industry, Mass Tort Issues, Secrecy
In the NFL concussion litigation, the federal judge overseeing the case has now ordered release of supporting financial calculations for the preliminarily approved class action settlement. The order follows motions for access by players and media. Contrast that disclosure order against the approach in asbestos litigation. Asbestos bankruptcies are de facto class action proceedings. Nonetheless, bankruptcy… Continue Reading

Do Backers of Ballot Initiatives Sometimes Have Standing In US Federal Courts

Posted in Constitutional Law/Mass Tort Law
Do backers of a ballot initiative have standing to defend an enacted law when the state attorney general refuses to defend the law? That interesting legal question lurks within the issues presented to the US Supreme Court on gay marriage. Alison Frankel provides a cogent summary of the issues, with links to relevant briefs.  As… Continue Reading

Morrison, Big Tobacco and Limited Jurisdictional Thinking – An Early Example of the Need for Critical Thinking About How Societies Will Cope With Global Torts

Posted in Constitutional Law/Mass Tort Law
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.… Continue Reading

Oral Argument Helid in US Supreme Court Cases Regarding Jurisdiction Over Global Manufacturers

Posted in Constitutional Law/Mass Tort Law
Nicastro and Goodyear are two pending cases addressing the scope of personal jurisdiction over global manufacturers when they sell allegedly defective products. Here, Crowell & Moring provides its take on the issues and argument. For those who would like more specifics, the Scotus Blog remains great. Go here for the Nicasto oral argument in various… Continue Reading

The Justice Roberts Court – A Friend to Big Business, It Seems

Posted in Constitutional Law/Mass Tort Law
The "Justice Roberts court" continues to garner attention and devotion from conservatives, and to rule in favor of businesses. A new summary article by Roger Parloff is here, in Fortune   As one would expect from a Fortune writer, Mr. Parloff often writes from the perspective of  business-friendly positions, and as a critic of plaintiff’s lawyers, as exemplified… Continue Reading

Connecting Trust Funds and Tort Systems – Madison County Defendants Ask Illinois Supreme Court for Pretrial and Trial Procedures to Force a Connection Between the Tort System and the Bankruptcy Trust Compensation System

Posted in Due Process
Mass tort law today is badly flawed by the lack of connections between state court  tort systems and the parallel but disconnected compensation systems that have arisen through trusts or funds that hold billions of dollars intended to pay tort claims. BP’s oil rig fund is a recent, well-known  example that highlights the growing importance of funds as a… Continue Reading

The Supreme Court Takes Unusual Action on Chrysler – Future Tort Impact Requires Some Thought

Posted in Bankruptcy, Constitutional Law/Mass Tort Law, Due Process
The Supreme Court acted in unusual fashion yesterday on Chrysler, and the actions create some issues that need further thought as to their implications for underlying tort claimants and for due process. Specifically, in this order, the Court granted certiorari, but then immediately vacated the judgment and AND vacated as moot the Second Circuit’s opinion… Continue Reading

Supreme Court Grants Cert in F-Cubed Securities Litigation

Posted in Class Actions/Aggregate Litigation, Constitutional Law/Mass Tort Law, Global Tort Choice of Law/Venue Issues
This post offers a brief comment arising from the now widely reported fact (see, for example, SCOTUSblog and many others) that the U. S. Supreme Court granted certiorari from the 2d Circuit’s opinion in the so-called foreign-cubed (a/k/a f- cubed) Rule 10b-5 securities case titled Morrison, et al., v. National Australia Bank, et al. (08-1191),… Continue Reading

Example of Why It May Pay to Give Effective Global Notice in Asbestos Bankruptcies

Posted in Asbestos Bankruptcy, Due Process
Here is an article from Japan this week that reports on finding Libby Mines vermiculite in buildings in Japan. The article claims the material was installed Zonolite. How can Judge Fitzgerald’s orders in the WR Grace case bind these building owners if they were not given effective notice in a language they understand ? Note… Continue Reading

Securities Law – Global Claiming – Are US Judgments Actually Binding ?

Posted in Class Actions/Aggregate Litigation, Constitutional Law/Mass Tort Law, Global Tort Litigation
So, where and when are US tort and securities judgments binding on persons who live outside the US, and why should does it matter? Let’s start with the latter question – why does it matter. Suppose, for example, a US bankrupcty court purports to enter a global injunction that bars future asbestos claims that anyone… Continue Reading

Travelers/Manville Remand – 2d Circuit Argument is Thursday October 22 at 2:00 PM

Posted in Asbestos Bankruptcy, Constitutional Law/Mass Tort Law
The Supreme Court’s Manville/Travelers opinion was quite narrow (some might say advisory) and resulted in a remand of the case to the 2d Circuit to decide the extent to which the prior rulings are binding on various entities. As per this online docket, the Travelers/Manville argument on remand is set for oral argument today. at… Continue Reading

Transcript of June 25 GM Hearing on Withdrawal of Request for Asbestos Futures Representative

Posted in Asbestos Bankruptcy, Constitutional Law/Mass Tort Law, GM Bk
As a result of bugging the clerk’s office and the court reporter’s office, the transparency-blocking 90 day veil has now been lifted from some of the General Motors bankruptcy hearing transcripts. Here is the June 25, 2009 transcript that reflects the asbestos plaintiff’s lawyers withdrawing the request for appointment of a futures representative. The withdrawal… Continue Reading

Quigley/Pfizer Asbestos Bankruptcy Trial Underway and Highlights Deep Flaws in the Chapter 11 Process as It Relates to Mass Tort Claims

Posted in Asbestos Bankruptcy, Constitutional Law/Mass Tort Law
This article from Bloomberg describes the start of the confirmation trial in the Pfizer/Quigley asbestos bankruptcy and reviews the case in general. The trial is to run off and on for 7 or more trial days, concluding Oct. 16. Despite various efforts to paint the situation in other lights, Quigley essentially is a corporate shell… Continue Reading