U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

On May 14, 2018 the United States Supreme Court agreed to decide a recurring issue in asbestos actions, the “bare-metal” rule.  The Supreme Court granted the petition for writ of certiorari of four businesses that often face products-liability claims in asbestos actions, CBS Corporation, Air & Liquid Systems Corp., Foster Wheeler LLP and Ingersoll Rand, Inc.  The issue, as framed in the petition, is whether products-liability defendants can be liable “under maritime law for injuries caused by products that they did not make, sell, or distribute.” Continue reading “U.S. Supreme Court to Settle Circuit Split on “Bare Metal Rule” Frequently Invoked in Asbestos Suits”

Bigger than a Bread Box? Defendants’ Shelf of Equipment Isn’t Enough for Patent Venue

bread boxFor years, patent owners, especially those that have never “performed” the patent, used the U.S. Court of Appeals for the Federal Circuit’s broad interpretation of the patent venue statute to force infringement lawsuits into favorable jurisdictions.  The U.S. District Court for the Eastern District of Texas was the model; often referred to as the “patent district,” patent holders most frequently—and non-practicing entities (aka “patent trolls”) overwhelmingly—filed suit in the Eastern District of Texas, regardless of where the allegedly infringing party conducted business.  Patent trolls leaned on sympathetic (and self-interested) judges to bully easy settlements out of defendants and force end consumers to pay more for all sorts of products. Continue reading “Bigger than a Bread Box? Defendants’ Shelf of Equipment Isn’t Enough for Patent Venue”

Supreme Court Continues to Nibble Away at Alien Tort Statute’s Sweep

supreme courtYesterday’s decision in Jesner v. Arab Bank, PLC, the U.S. Supreme Court’s third major decision involving the Alien Tort Statute (ATS), continues a trend of reining in human rights activists’ efforts to police private businesses’ overseas conduct through ATS litigation.  The Court held that foreign corporations may not be sued under the ATS for their overseas conduct.  But as with past Supreme Court ATS decisions, the justices once again failed to shut the door entirely on human rights activists: the ruling said nothing about the many ATS claims pending against American corporations.  It thereby ensured that U.S. companies will continue to face such claims for the foreseeable future.

While Jesner suggests that five justices likely would rule that the federal courts should not recognize an ATS cause of action against American corporations for their overseas activities, several federal appeals courts have exhibited little willingness to limit the scope of ATS liability unless directly ordered to do so by the Supreme Court. Continue reading “Supreme Court Continues to Nibble Away at Alien Tort Statute’s Sweep”

Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?

DOJAsbestos—the heat-resistant, naturally occurring silicate mineral—disappeared from the manufacturing marketplace over 40 years ago. In those four decades, litigation involving asbestos has been as impervious to resolution as the mineral itself is to high temperatures. When we’ve asked mass-tort litigators “what’s the next asbestos?” some have answered—not entirely in jest—”asbestos.”

The reasons for asbestos litigation’s endurance are many, but defendants, judges, and public officials have started to spotlight the role of bankruptcy trusts and plaintiffs’ lawyers’ use of them as both shield and sword. Numerous voices, including state attorneys general and Members of Congress, have called on the U.S. Department of Justice (DOJ) to investigate misconduct and potential fraud. DOJ has a number of potent oversight and enforcement options at its disposal, some of which are discussed below. Continue reading “Cleaning Up the Asbestos Litigation Mess: A Role for DOJ?”

Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation

raisnetsFood Court Follies—A WLF Legal Pulse Series

Litigation involving processed foods and other packaged goods has become so popular that cases are now routinely filed not only over what’s in the package, but also over what’s not in the package. Lawsuits over empty space, colloquially known as “slack-fill,” enrich plaintiffs’ lawyers while according little or no benefit to consumers. These lawyers have flocked to courts that have broadly interpreted already flexible consumer-protection laws. Targeted businesses have started to express their concerns, and elected officials are beginning to listen.

One state where reform is afoot is Missouri. A very recent federal court decision there in a slack-fill suit reflects why that state’s law is under reconsideration. Continue reading “Show Me the Slack Fill: State’s Overly Pliable Consumer-Fraud Law Courts Dubious Litigation”

Ohio High Court Confirms Cumulative-Asbestos-Exposure Theory Cannot Establish Legal Causation

RobertWrightFeatured Expert Contributor, Mass Torts—Asbestos

Robert H. Wright, a Partner with Horvitz & Levy LLP in Los Angeles, CA

The Supreme Court of Ohio has held that a cumulative exposure theory, which posits that every nontrivial exposure to asbestos is a substantial factor in causing mesothelioma, does not satisfy the Ohio statute governing causation in asbestos cases.  Schwartz v. Honeywell International Inc., No. 2016-1372, 2018 WL 793606, at *1 (Ohio 2018).

Some history is in order.  In Horton v. Harwick Chemical Corp., 653 N.E.2d 1196 (1995), the Supreme Court of Ohio rejected the frequency, regularity, and proximity test for substantial causation developed in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162-1163 (4th Cir. 1986).  The Horton court criticized the Lohrmann test as “overly burdensome” for plaintiffs and “unnecessary.”  Id. at 1199. Continue reading “Ohio High Court Confirms Cumulative-Asbestos-Exposure Theory Cannot Establish Legal Causation”

WLF Webinar Speakers Critique Public-Nuisance Lawsuits

After long being a mere remnant of the old English common law, public nuisance has been experiencing an elongated renaissance. Courts have expanded the elastic doctrine into an all-purpose cause of action. As a result, lawsuits have alleged that everyday products such as paint, life-saving drugs, and pervasively regulated sources of carbon emissions are an unlawful nuisance. Richard Faulk of Davis Wright Tremaine LLP and Neil Merkl of Kelley Drye & Warren LLP traced this tort’s transformation, discussed its current applications, and explained why judges should curtail its growth.

The Powerpoint slides that accompanied their presentations are available here.