A word of warning regarding Stub Hub.  In short, the company has failed to put in place systems to block fraudsters from using online systems to create false or multiple sales of the same tickets. So I  learned when my girlfriend and I showed up for a Book of Mormon performance this weekend in Chicago. We were refused entry on our (expensive) tickets. Someone else had purchased the same seats. The other people apparently got in but we did not because we arrived after they did. We also were not offered any other seats, so we missed the show. We did receive a refund of what I paid.

In sum, like so many businesses today, Stub Hub has failed to invest enough to block fraud, and instead simply shifts the risk to consumers. One wonders what they do – or do not do – about prosecuting fraudsters.

For more specifics on its failure, see this review of Stub Hub, with links to other critiques.





A new article consolidates information on the use of chapter 11 by Catholic dioceses. The author is a Penn State law professor, Marie Reilly. The article  is posted in SSRN, Catholic Dioceses in Bankruptcy. Hat tip to Private Law Theory blog for flagging the article.

The abstract states:

“The Catholic Church is coping with mass tort liability for sexual abuse of children by priests. Since 2004, eighteen Catholic organizations have filed for relief in bankruptcy. Fifteen debtors emerged from bankruptcy after settling with sexual abuse claimants and insurers. During settlement negotiations, sexual abuse claimants and debtors clashed over the extent of the debtors’ property and ability to pay claims. Although such disputes are common in chapter 11 plan negotiations, the Catholic cases required the parties and bankruptcy courts to account for unique religious attributes of Catholic debtors. This article reviews the arguments and outcomes on property issues based on reported decisions, pleadings, plans, and disclosure statements. It explains the key characteristics of Catholic dioceses under canon and secular organization law and the bankruptcy contexts in which these characteristics became hot button issues. It offers an analysis of the legacy of the Catholic cases for bankruptcy law, religious liberty, and for the relationships among entities within a Catholic diocese.”

As pointed out in Tuesday’s post (September 18, 2018),  Praedicat and Allianz recently published facts and assessments on a “toxic” trio associated with some cosmetics. Again, this is an innovative effort, and deserves careful consideration. The third member of the “toxic trio” substances is formaldehyde. The facts and assessment of the future are – again – notable:

“Formaldehyde is listed as a known carcinogen by the US National Toxicology Program and the International Agency for Research on Cancer (IARC)…. However, formaldehyde is most commonly used to make resins – precursors to many plastic and adhesive chemicals – that are used in dozens of industrial processes that eventually produce hundreds of consumer products: pressed wood, disinfectants, clothing, adhesives, laminates, insulation, paper products, and personal care products. Formaldehyde is often a component of hair straighteners used both in salons and at home.


Using Praedicat’s model to evaluate the current consensus and projected evolution of the peer-reviewed scientific literature, we summarize the hypothesised bodily injuries linked to formaldehyde exposure in the table.”


One litigation industry industry problem is that foolish actions by one litigant can harm many other similarly situated litigants. This reality arises for parties on either side of the versus.

A new example from the corporate defense side arises from the “bad faith” actions of Fitbit and MoFo (Morrison & Foerster) related to a consumer fraud arbitration. In short, Fitbit forced a would be class action into arbitration but then refused to arbitrate, after sending the plaintiff an amount it viewed as “resolving the case.”  Plaintiff, however, would not take the money, and went back to federal court for relief. Ultimately, a federal judge issued an opinion strongly rapping Fitbit and MoFo for bad faith, ordered the payment of fees and costs, and also ordered Fitbit to submit his opinion to the parties in all motion to compel arbitration cases arising in the next year. The longer story is in an August 2, 2018 article at Northern California Record. The slip opinion, McLellan v. Fitbit,  is online, and is from Judge Donato of the Northern District of California. Set out below are key excerpts from the opinion, at 1-2, and 10″

“Fitbit would like to treat this incident as a misunderstanding, but it is much more than that. It moved McLellan’s claims out of court and then undertook a course of conduct intended to shut her out of arbitration as well. It abandoned that plan at an early stage only because McLellan was diligent in sounding the alarm, and the Court expressed its concerns in plain terms at the hearing. Fitbit’s conduct has multiplied the proceedings in this case for no good reason and at the expense of plaintiffs’ and the Court’s resources. It has also bolstered the perception that arbitration is where consumer lawsuits go to die. While the merits of that view can be debated, it’s no surprise that many people, including judges, are skeptical about arbitration agreements in light of situations like this one. Fitbit’s conduct undermines the public’s confidence in getting a fair shake when arbitration is compelled.

McLellan has asked to be relieved of her arbitration agreement, and more broadly to strike down Fitbit’s arbitration clause for all users. Although there is some equitable appeal in those requests, the record here does not support terminating the arbitration. Nevertheless, the Court finds that Fitbit and its counsel engaged in bad-faith tactics that warrant corrective action.” 


“To help ensure that Fitbit does not again impose “pointless and wasteful burden[s] on the supposedly summary and speedy procedures prescribed by the Arbitration Act,” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 27 (1983), it is ordered to file a copy of this decision in all cases where it seeks to compel arbitration under its Terms of Service with consumers. This duty is imposed for a period of one year from the date of this order.”



Ken Lopez of A2L recently teed up the need for trial lawyers to not stack the deck in mock trials, and to instead go the other direction.  As juries keep pounding defendants with large awards, it’s excellent advice. Perhaps not coincidentally, Ken’s article appeared after the ovarian cancer/talc case verdict for over $4 billion obtained by Mark Lanier and others against well regarded defense lawyers from Orrick. The Lanier firm’s web site collects various reactions and kudos. Ken’s  article is from July 16, 2018, at A2L

Caps on medical malpractice recoveries is one of the “tort reform” topics that’s been through notable change. A new chapter just took place in Wisconsin, with a win for those in favor of caps. The history and new chapter is summarized in a plaintiff friendly June 29, 2018 article at Daily Kos.  The Pop Tort picked up the article.

However, there is more to the story, including a Wisconsin back up fund that pays some economic costs. A June 27, 2018 Milwaukee Journal Sentinel article provides a broader view of the situation.

The Wisconsin Supreme Court web site has a landing page that includes links to briefs, oral agumment videos and the opinion in the case, which is Mayo.

New Jersey may have come up with a new tactic for economic retaliation against an entity suspected of using chapter 11 to avoid paying legacy liability claims. An apparently credible June 27, 2018 article at NJ.com suggests the Governor may sign legislation that would require divestiture of pension investments in entities that use chapter 11 filings to avoid paying legacy liabilities. See  https://www.nj.com/news/index.ssf/2018/06/nj_pension_invests_in_defunct_passaic_river_pollut.html

“When Maolra Seoighe entered a Dublin courtroom to be tried for murder, his name was recorded as Myles Joyce.

The change was a translation from his native Irish, or Gaelic, into English — a language Mr. Joyce did not speak. So he couldn’t understand the words of the defense lawyer, the judge or the jury members who decided he was guilty in November 1882, and he was hanged the next month.

But evidence soon emerged suggesting that Mr. Joyce was innocent, just as he had been saying in Irish all along. Now, 136 years after his death, he has been officially pardoned.”

Quite the story, and there also is a book. See this April 6, 2018 NYT article for more specifics after the quote above.

Judging by oral argument questions at SCOTUS, one legal analyst suggests the American Pipe tolling doctrine seems likely to live on to toll statutes of limitation, as opposed to statutes of repose. See Ronald Mann, Argument analysis: Justices dubious about limiting precedent that tolls statutes of limitations to permit “stacked” class actions, SCOTUSblog (Mar. 27, 2018, 10:52 AM), http://www.scotusblog.com/2018/03/argument-analysis-justices-dubious-limiting-precedent-tolls-statutes-limitations-permit-stacked-class-actions/