It’s seldom simple to plan and manage a compensation fund for personal injuries. The currents status of the September 11th Victim Compensation Fund provides yet another example of some the challenges. In short, on February 15, 2019, the Fund announced a major decrease in its payment percentage, unless it obtains additional funding; see this page at the fund website.  The changes are more generally described in a February 15, 2019 article at the Washington Post.

An arbitration agreement may specify confidentiality, but does that term necessarily control and require sealing of subsequent proceedings in court? “No,” usually, is the answer according to a recent federal district court ruling in CAA Sports LLC v. Dogra, No. 4:18-cv-01887-SNLJ, 2018 U.S. Dist. LEXIS 214223 (E.D. Mo. Dec. 20, 2018).  The key portion of the ruling is quoted below.

“But, in the context of arbitration, courts routinely reject arguments that arbitration awards and supporting documents should be sealed merely to honor the parties’ underlying confidentiality agreement related to their arbitration. See, e.g., Grynberg v. BP P.L.C., 205 F.Supp.3d 1, 3-4 (D.D.C. 2016); Redeemer Committee of Highland Credit Strategies Funds v. Highland Capital Management, L.P., 182 F.Supp.3d 128, 132-134 (S.D.N.Y. 2016); Amerisure Mut. Ins. Co. v. Everest Reinsurance Co., 2014 U.S. Dist. LEXIS 153013, 2014 WL 5481107 *2 (E.D. Mich. Oct. 29, 2014); Century Indem. Co. v. AXA Belgium, 2012 U.S. Dist. LEXIS 136472, 2012 WL 4354816 at *13-14 (S.D.N.Y. Sept. 24, 2012); Zimmer, Inc. v. Scott, 2010 U.S. Dist. LEXIS 77409, 2010 WL 3004237 at *2-3 (N.D. Ill. Jul. 28, 2010); Zurich Am. Ins. Co. v. Rite Aid Corp., 345 F.Supp.2d 497, 504 (E.D. Pa. 2004). Indeed, as aptly stated by Judge Easterbrook of the Seventh Circuit “[p]eople who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.” Union Oil Co. of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000).

With these principles in mind, the Court finds little reason to seal the documents in this case. CAA Sports’ only argument is that the parties are contractually bound to confidentiality. Be that as it may, and even if the confidentiality provision, by its terms, applied both to court proceedings and the [*5]  underlying arbitration, it does not bind this Court—being an agreement solely between the parties. More importantly, though, CAA Sports does nothing to explain why its interest in the secrecy of the underlying arbitration with Dogra should outweigh the public’s competing interest in free access to the judicial functioning of this Court. There is, for example, no suggestion that the arbitration award and supporting materials contain personal identifying information, implicate innocent third parties, or contain routinely protected information such as trade secrets or proprietary data. In fact, CAA Sports cites no law favoring its position—it cites no law at all.”

Hat tip to the St. Louis Record for publishing a December 25, 2018 article regarding the ruling. As some will recall, Legal Newsline previously moved for and obtained orders requiring unsealing of records in the Garlock trial. The various “Record” publications and Legal Newsline are inter-related. See this about page.  The same page also explains:  “Legal Newsline is owned by the U.S. Chamber Institute for Legal Reform.”

Some recent reading reminded me that the Conversable Economist blog includes an October 23,  2013 post that provides a very useful discussion of some of the issues and data tied up in trying to value a life for purposes of statistics. It begins as follows, and includes much more.

“The costs of regulations can be measured by the money that must be spent for compliance. But many of the benefits of regulation are measured by lives saved or injuries avoided. Thus, comparing costs and benefits requires putting some kind of a monetary value on the reduction of risks to life and limb. For example, the US Department of Transportation estimates the “value of a statistical life” at $9.1 million in 2012. In a memo called “Guidance on Treatment of the Economic Value of a Statistical Life in the U.S. Department of Transportation Analyses,” it explains how this number was reached. I’ll run through the DoT estimates, and then raise some of the broader issues as discussed in a recent paper by Cass Sunstein called “The value of a statistical life: some clarifications and puzzles,” which appeared in a recent issue of the Journal of Benefit Cost Analysis (4:2, pp. 237-261).”

The media exchanges continue as to what the rules should or should not apply  as to disclosure and funding related to research and writing on economic topics of public interest. A new volley is from a Notre Dame professor (Philip Mirowski) who explores aspects  of  and consequences of the Koch Brothers funding for George Mason University. It is a June 25, 2018 article at the Institute for New Economic Thinking.

A $1 billion compensatory damages verdict last week seems to be another signal of significant unhappiness among the people who are serving on juries. An April 23, 2018 article in the NYT provides more specifics. According to the article, the trial was only on damages, perhaps after a default judgment. As described in my prior post of February 20, 2018. There, I highlighted a jury research report that emphasized that jurors are seeking to use their verdicts to send messages. According to the researchers:

“The most telling thing about the shift in attitudes is the message potential jurors want to send with their verdicts. While some core opinions may have remained somewhat stable, recent respondents are less willing to compromise, and they are more willing to use damage awards to voice their discontent with vigor.” 

What are property interests; how do we know them when we think we see them? That’s a fascinating question that’s been animating due process and takings case law for many decades. Board of Regents v. Roth408 US 564 (1972),  was one of the key cases in the area when I was a young lawyer, and remains important today.

With the definitional questions in mind, it was interesting to read  about definitions of state law property rights in a recent California Supreme Court opinion which rejected a fraudulent conveyance claim because the transfer at issue was deemed not to transfer property rights, and so there was no transfer to attack. The opinion arose out of the 9th Circuit certifying a question of law to the court from the Heller Ehrman chapter 11 case; the opinion was issued March 5, 2018. The opinion and backstory is told in general in a March 5, 2018 article at the ABA Journal.

The entire opinion should be read for the discussion of property rights, including its citation to Roth and to the law school maxims that property rights are like of a bundle of sticks.  For present, shorter effort purposes, consider the following quotes from the ABA article:

“In its unanimous opinion, the California Supreme Court said the Heller estate was claiming an interest “for work that someone else now must undertake.” Any expectation of compensation for future work is speculative, given the client’s right to terminate representation at any time, according to the opinion by Justice Mariano-Florentino Cuéllar. Those expectations don’t amount to a property interest, he said.

“What we hold is that under California law, a dissolved law firm has no property interest in legal matters handled on an hourly basis, and therefore, no property interest in the profits generated by its former partners’ work on hourly fee matters pending at the time of the firm’s dissolution,” Cuéllar said.

“The partnership has no more than an expectation that it may continue to work on such matters, and that expectation may be dashed at any time by a client’s choice to remove its business. As such, the firm’s expectation—a mere possibility of unearned, prospective fees—cannot constitute a property interest.”

Interesting topics are raised by a motion by Takata for appointment of Roger Frankel as a futures representative in Takata’s chapter 11 case. The case arose from Takata paying out massive amounts to pay for products recalls demanded by governments and car companies.

In the motion, Takata refers to appointment of Mr. Frankel  to advocate for future personal injury claimants. That proposed as counsel raises interesting topics since the car companies seem to be much larger claimants for product recalls, but they also likely will be claiming claims against Takata in future personal injury cases.  In a related view, other manufacturing entities may well sued when wrecks happen. And, Medicare and health insurers may assert liens against funds paid out to personal injury claimants. For which interests can/should Mr. Frankel advocate?

 

This week brought another lesson in the importance of looking at big picture principles instead of focusing only at the micro level. The lesson arose because SCOTUS once again knocked down a “patent friendly” ruling from the Federal Circuit when the patent law principle at issue had big picture implications for the economy and for certainty. The ruling arose in the context of efforts by OEM/patent holders to use patent rights as the basis for suing third-parties who do things to a product (e.g. repair shops; ink cartridge re-fillers). Perhaps the Federal Circuit does well in resolving arcane patent, but it keeps getting hammered by SCOTUS when it seeks to broadly apply patent law claims to events that are of notable concern to others in the economy.  The current ruling is based on big picture principles rather than narrow “patent think;” the story is told in a June 1, 2017 article at Wired. The same thing happened when the Federal Circuit approved efforts to patent genes; prior posts on this blog (e.g. here and here) describe SCOTUS reversing based on big picture principles.

 

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 filed last night by the states is online at this page of the Civil Rights Clearinghouse. Kudos to that group.

Also, we extracted the supporting  Declaration of Former National Security Officials; see this page of Scribd for those pages only.  We also put online a “reduced size” version of the entire 101 pages of the brief and its attachments; see this page of Scribd. The “reduced size” version is easier to download and/or email or …..