Litigation Funding Slides Downmarket

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1McMinn_Donald_MainJoe G. Hollingsworth, Partner, Hollingsworth LLP, with Donald R. McMinn, a Partner with the firm.

Through their investments in a lawyer’s case(s), litigation funders have fomented economically shaky litigation while making that litigation’s resolution more difficult by disguising the settlement decision maker.  Now litigation funders are entering a new market—one composed of the plaintiffs themselves, rather than their attorneys.  Their new approach is, quite possibly, worse than their initial one.

Web-based platforms speak of creating an ostensible “peer-to-peer” approach by which even individuals can invest in the lawsuits of others.  The platforms allow would-be funders to pick and choose which lawsuits in which to invest and then direct the investment straight to plaintiffs, not their lawyers.  Plaintiffs trade their receipt of funds now in return for agreeing to repay the lender out of any recovery.  Continue reading “Litigation Funding Slides Downmarket”

New Jersey: Now the Product-Liability Defendant’s Playground?

Featured Expert Contributor, Litigation Strategies

Joe_Hollingsworth_thumbnail 1By Joe G. Hollingsworth, Partner, Hollingsworth LLP, with Robert E. Johnston, Partner, Hollingsworth LLP.

Atlantic City, New Jersey—often called A.C. or America’s Playground—has the bright lights and casinos of Las Vegas set on the southern Jersey shore.  We confess that we have tried our luck rolling the bones at the Borgata on occasion, but our defense-side colleagues rolled a “natural” just last month in the New Jersey Supreme Court.

On August 1, 2018, New Jersey became the latest state to adopt (in civil cases) the principles governing the admissibility of scientific opinion evidence articulated by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) – a win made even sweeter because it comes in the In re Accutane Litigation Mass Tort litigation, which has been churning (outrageously) in A.C. for more than a decade.  In re Accutane Litigation, (A-25-17) (079958) slip op. (N.J. August 1, 2018) (“Accutane”).  The New Jersey Supreme Court’s decision is a full-throated endorsement of the trial judge’s gatekeeper role and offers the hope that defendants litigating scientific cases in New Jersey may find the courts more hospitable.   The Accutane decision also may represent a turning point in the erosion of the gatekeeping function that has occurred over the twenty-five years since Daubert was first handed down. Continue reading “New Jersey: Now the Product-Liability Defendant’s Playground?”

Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City

Big AppleBy Holton Westbrook, a 2018 Judge K.K. Legett Fellow at Washington Legal Foundation who will be entering his third year at Texas Tech University School of Law in the fall.

New York City recently suffered the latest loss in municipalities’ legal fight against climate change when the U.S. District Court for the Southern District of New York threw out the city’s attempt to hold BP, Chevron, ExxonMobil, and other oil companies liable for injuries allegedly caused by carbon emissions. The Big Apple has signaled its intention to appeal its loss to the U.S. Court of Appeals for the Second Circuit, but the trial court’s reasoning is well within the mainstream of judicial thinking on the issues at stake, and its ruling should be upheld. Continue reading “Court Calls Second Strike on Municipalities’ Climate-Change Legal Crusade with Ruling Against New York City”

Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability”

pillsIn a recent post, West Virginia’s High Court Rejects Novel Theory of “Innovator Liability”, WLF Senior Litigation Counsel Cory Andrews discussed a state court decision that declined liability on a pharmaceutical manufacturer for alleged harms caused by a drug it did not produce. In doing so, the West Virginia Supreme Court of Appeals parted company with the highest courts of two other states, California and Massachusetts, which earlier this year embraced the minority view that plaintiffs can recover damages from so-called branded pharmaceutical companies for harms allegedly caused by the generic copy of the the brand-name drug.

On May 21, a U.S. District Court for the District of Massachusetts judge overseeing a multidistrict litigation, In re: Zofran (Ondansetron) Products Liability Litigation, followed the majority view of innovator liability and dismissed three claims filed by plaintiffs who had only ingested the generic version of Zofran. Continue reading “Update: Federal District Court Rejects Minority View on Pharma “Innovator Liability””

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”