MASS TORTS | CLASS ACTIONS
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Reimagining the Administration of Justice with Qudsiya Naqui of Pew Charitable Trust

February 27th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Law Firm Operations, Technology Law|Tags: , , , , |

Before COVID-19 came to America in early 2020, “going to court” literally meant putting on your shoes and walking into a courthouse, typically a large building with courtrooms inside, and people in robes and business suits and, in some cases, more restrictive attire.  Stoked by necessity, courts sprinted toward solutions for keeping the wheels of justice spinning while also keeping everyone away from each other. Until then it didn’t seem possible that attorneys could or would appear before judges via digital screens, like George Jetson getting yelled at by Mr. Spacely over some hilarious mishap at the sprocket factory. Pew Charitable Trust concluded an in-depth study of the courts with the 2021 release of a report,  “How Courts Embraced Technology, Met the Pandemic Challenge, and Revolutionized Their Operations.” After examining emergency orders from all 50 states and Washington, D.C., and court approaches to virtual hearings, e-filing, and digital notarization, the researchers wrote that it was a time for "reimagining how to administer justice.” Was the adoption of technology effective? Were there any hiccups? Was technology widely embraced? Were the effects of new efficiencies enjoyed evenly across the socio-economic spectrum? Do we think courts will continue to reimagine how they administer justice without the crushing pressure of widespread disease? Listen to my interview with Qudsiya Naqui who leads Pew’s research at the intersection of technology [...]

Modernizing Our Court System (but Don’t Attend Trial from Your Car) with Hon. Scott Schlegel

February 15th, 2023|Categories: Complex Business Litigation, ELP, HB Tort Notes, Procedural Law|Tags: , , , |

The judicial system is overburdened for a number of reasons, and greater efficiency is a must if court systems are to achieve their important objectives. Technology and openness to all that it offers is a key solution, something that was tried, tested and proven during the Covid pandemic which closed courthouses and law offices around the nation. Along with technology, improvements can be made by reexamining their orthodoxies about how things should be done based on decades of "that's how we've always done it." This is a matter of importance to judges, lawyers, plaintiffs, defendants, and numerous others whose lives are impacted directly or indirectly when either the civil or criminal justice systems are inefficient, cumbersome, costly, confusing, slow, and even inaccessible. If only we had an example of at least one judge who is trying to do something about it. But wait ... Listen to my interview with the Hon. Scott Schlegel who presides over criminal civil and domestic matters in Louisiana's 24th Judicial District Court in Jefferson Parish. Judge Schlegel was elected to the bench in 2013, and quickly earned a reputation as a modern judge using technology to bring his court into the digital age, even before the pandemic forced the change on other jurists. He partnered with tech companies to develop efficiency tools like chat bots and [...]

Greatly Exaggerated: The Impact of Bankruptcy on Mass Torts with Jennifer Hoekstra

January 12th, 2023|Categories: Class Actions, Complex Business Litigation, ELP, Emerging Litigation & Risk, HB Tort Notes, Mass Torts|Tags: , , , , |

When large companies face massive mass tort litigation, one way they can survive is to file for bankruptcy protection and reorganize.  3M recently put its Aearo Technologies subsidiary into bankruptcy in the face of more than 230,000 claims that's its defective earplugs caused hearing loss.  When it came to filing bankruptcy 3M said Aearo was solely responsible for the product. But for several years of litigation 3M argued that it, as the parent, was solely responsible, not its various subsidiaries. That was a strategy that was beneficial to the company in multidistrict litigation. Why did 3M suddenly change course? What impact does bankruptcy have on claimants? Could corporations use bankruptcy law to neuter mass tort litigation for all eternity?  And how did the strategy sit with the federal magistrate judge overseeing the multidistrict litigation? Joining me to discuss this incredibly complex litigation is Jennifer M. Hoekstra, a partner with Aylstock Witkin Kreis & Overholtz. Jennifer has been involved in all varieties of complex litigation since 2007, focusing on mass torts, drug and device litigation, and others.  She has a J.D. from Tulane, which she earned while also completing a certificate in Environmental Law. She has actively served as trial counsel or an integral member of the trial team in several of the 3M Earplug trials securing nearly $300 million in compensatory damages [...]

PFAS Litigation—A Historical Overview and the Growing Trend in Consumer Fraud Lawsuits: What Are the Legal and Business Risks to Companies by John Gardella

November 30th, 2022|Categories: Class Actions, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , |

The Author John P. Gardella (jgardella@cmbg3.com) is a shareholder and Chief Services Officer at CMBG3 Law, where he also chairs the firm’s PFAS, Environmental, Risk Management and Consulting and ESG practice groups. John is the latest addition to the Editorial Board of Directors for the Journal on Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. PFAS Litigation A Historical Overview and the Growing Trend in Consumer Fraud Lawsuits "It is of the utmost importance that businesses along the whole supply chain in the consumer goods sector evaluate their PFAS risk and fully understand the legal arguments that plaintiffs could make against companies in litigation." Abstract: Per- and polyfluoroalkyl substances (PFAS) are a class of over 12,000 man-made compounds. Most people would recognize the brand names Teflon, produced by DuPont, and Scotchgard, produced by 3M. They also go by the nickname “forever chemicals” because they are highly persistent and mobile in the environment and the human body. In addition to bodily injury and environmental pollution litigation, plaintiffs are also bringing suits against companies for claiming their products and the making of their products are safe and green. This [...]

Federal Judge, Two Attorneys Honored for Excellence in Ethics in Complex Litigation

September 28th, 2022|Categories: Class Actions, Complex Business Litigation, HB Tort Notes, News|Tags: , , |

For Immediate Release U.S. Appellate Judge, Two Attorneys Honored for Ethics in Complex Litigation First-ever awards for ethics in complex litigation excellence will be presented Oct. 22, 2022. Nominations were evaluated by a committee comprising a federal judge, scholars, and litigators. Committee selected a current judge on the Ninth Circuit U.S. Court of Appeals, a plaintiff’s attorney, and a defense attorney. SAN FRANCISCO – Sept. 28, 2022 – Nominated for their contributions to ethics in class actions and complex litigation, the first-ever recipients of the Awards for Excellence in Ethics in Complex Litigation are: jurist, scholar, and teacher, the Honorable William Fletcher; preeminent plaintiff’s attorney Elizabeth J. Cabraser; and distinguished employment defense attorney Fred W. Alvarez. The awards will be presented at the inaugural Complex Litigation Ethics Conference on Oct. 22, 2022, held at the UC Hastings College of the Law in association with the college’s Center for Litigation and Courts. Program co-chairs Joshua P. Davis and Scott Dodson – both professors at UC Hastings – have assembled an exemplary faculty of leading jurists, litigators, and other subject matter experts. “In developing this program we wanted not only to educate litigators and stimulate discussion on the important and evolving ethical aspects of this practice, but also to honor those who have demonstrated leadership, scholarship, and dedication in promoting ethical [...]

EMR Audit Trail—What Is It? Why Do They Matter? What Should You Look For? by Haley K. Grieco and Brooke E. Reddin

September 20th, 2022|Categories: Emerging Litigation & Risk, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Haley K. Grieco (hgrieco@hallboothsmith.com) is a partner in the Paramus, New Jersey, office of Hall Booth Smith, where she defends physicians, hospitals, and other healthcare providers in a wide range of medical malpractice litigation. Brooke E. Reddin (breddin@hallboothsmith.com) is an associate with the firm, where she focuses her practice on healthcare, medical malpractice, and aging services litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. EMR Audit Trail—What Is It? Why Do They Matter? What Should You Look For? "As the healthcare industry becomes increasingly digitized, it is imperative that attorneys appreciate the impact it may have on their clients and their practice. In medical malpractice matters, discovery requests for metadata—specifically, the production of the EMR audit trail—has steadily increased over the past few years." Abstract: Maintaining electronic medical records, or EMRs, is now a nearly universal best practice among medical providers from small physician practices to large hospital networks. Unlike handwritten or typed records, these digital documents carry with them much more data than meets the eye. In this article, the authors—two medical malpractice attorneys— discuss what attorneys need to know about EMRs in the litigation context and [...]

Insurance Coverage for Digital Assets: Mitigating Losses in Cryptocurrency and Non‐Fungible Token Markets by Scott DeVries, Jessica Cohen-Nowak and Adriana Perez of Hunton Andrews Kurth

August 31st, 2022|Categories: Complex Business Litigation, Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

Companies and individuals are riding the ups and downs of cryptocurrency and NFTs—with losses and swings in the billions of dollars—but digital assets are not going away. Abstract: The risk of loss in certain categories may be mitigated by insurance, whether provided by tailored policies and/or under policies designed specifically for digital asset owners. Those with exposure to the digital asset sector should be attuned to the emerging marketplace for such insurance products. While it is early days for NFT-specific coverage, the rise of cryptocurrency has created a substantial marketplace for crypto coverage. Insurers are becoming increasingly able to model and assess risk, so more products are coming to market. That said, digital asset holders need to be able to select coverage that best suits their needs. In this article, the authors discuss the history and status of coverage for digital assets to assist readers in exploring how they might use insurance to mitigate risk in this emerging and rocky sector of global finance. "Over the course of a decade, the marketplace for cryptocurrency has increased from zero to an estimated $250 billion. However, only $6 billion in insurance coverage is currently available. It would be a gross understatement to say that there is a truly remarkable imbalance between market value and insurance capacity." Introduction Crypto [...]

The Environmental, Social, and Governance Police Have Arrived: Is Your Insurance Ready? by Robert D. Chesler and Dennis J. Artese

August 29th, 2022|Categories: Complex Business Litigation, Emerging Litigation & Risk, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , , |

The Authors Robert D. Chesler (rchesler@andersonkill.com) is a shareholder in Anderson Kill’s New Jersey office and is a member of the firm’s Cyber Insurance Recovery Group. He represents policyholders in a broad variety of coverage claims against their insurers and advises companies with respect to their insurance programs. Dennis J. Artese is a shareholder in Anderson Kill’s New York office and chairs the firm’s Climate Change and Disaster Recovery Group. Both are members of the Editorial Advisory Board of the Journal. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. The ESG Police Have Arrived: Is Your Insurance Ready? "ESG has become a major initiative for corporate America. In particular, the environmental prong of ESG calls for companies to institute sustainability goals and to invest in environmentally friendly companies. This emphasis has both economic and popular support. Environmental sustainability will make companies better able to compete and make their businesses less risky." Abstract: The environmental, social, and governance movement is a positive one, but like many well-intentioned efforts there is room for abuse and risk. As corporations endeavor to earn accolades and good will for “doing the right thing,” they must also be [...]

Announcing the Complex Litigation Ethics Conference

August 25th, 2022|Categories: Class Actions, Complex Business Litigation, HB Tort Notes, New Featured Post for Home Page, News|Tags: , , |

A leading academic and practitioner, Joshua P. Davis (davisj@usfca.edu) is a nationally recognized expert on legal ethics and class actions, as well as on artificial intelligence in the law, antitrust, civil procedure, free speech, and jurisprudence. He has published more than 30 scholarly articles and book chapters on these subjects and is currently writing a book on AI titled Unnatural Law, which will be published by Cambridge University Press. He is Research Professor of Law at the University of California Hastings College of Law, and a Shareholder of the Berger Montague PC law firm and Manager of its new San Francisco Bay Area Office. Before taking these posts, for more than 20 years Davis was a tenured Professor of Law at University of San Francisco Law School, where he also served as the Director of the Center for Law and Ethics. Davis is also a member of the Editorial Board of Advisors for the Journal on Emerging Issues in Litigation, published by Fastcase Full Court Press. Tom Hagy, Editor in Chief. An expert in civil procedure and federal courts, Professor Scott Dodson is the James Edgar Hervey Chair in Litigation and Geoffrey C. Hazard Jr. Distinguished Professor of Law at UC Hastings Law. He has published seven book titles, including The Legacy of Ruth Bader Ginsburg (Cambridge 2015) and New Pleading in [...]

Litigating a Claim to Recover Liquidated Damages by Laura Fraher

August 24th, 2022|Categories: Complex Business Litigation, Emerging Litigation & Risk, Employment, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , |

The Author Laura C. Fraher (fraher@slslaw.com) is a senior attorney in the trial and construction group at Shapiro, Lifschitz & Schram in Washington, D.C. She has extensive experience in civil litigation at both the trial court and appellate level. Competitive by nature, Laura played rugby for nearly 20 years. She puts this competitive spirit to work through her passion for the law and her clients. Education: St. John’s University School of Law, J.D., 2001, magna cum laude; SUNY College at Geneseo, B.A., Political Science, 1998. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Litigating a Claim to Recover Liquidated Damages: Enforceability Depends on Evidence of Good Faith Expectations "The tests and standards that courts apply to evaluate whether a particular liquidated damage provision is enforceable vary from state to state and it is imperative that litigants research and fully appreciate the particular standards that will be applied by the court in which they are litigating." Abstract: The liquidated damages provision in a contract is a useful mechanism for mitigating risk in the event one of the parties to an agreement breaches the contract, costing the aggrieved party sometimes significant difficulty and [...]

The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” Finally Levels the Playing Field by Kathryn Hatfield

June 22nd, 2022|Categories: Emerging Litigation & Risk, Employment, HB Tort Notes, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , |

The Author Kathryn V. Hatfield (khatfield@hatfieldschwartzlaw.com) is a partner in the women-owned law firm of Hatfield Schwartz Law Group LLC where she focuses on advising and representing management in labor and employment law matters. Kathryn is a member of the Editorial Advisory Board for the Journal of Emerging Issues in Litigation. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. The “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” Finally Levels the Playing Field "While arbitration offers privacy and confidentiality, it is for exactly these reasons that the #MeToo movement developed. Moreover, other than perhaps the differences in the speed of the two processes, the advantages of arbitration can be flipped on their head and become disadvantages." Abstract: The Equal Employment Opportunity Center alone receives on average approximately 7,000 sexual harassment claims a year, a figure that does not include claims filed with state and local agencies. The cost of resolving these claims logged by the EEOC averages $63 million a year based on the past four years. On average, there are nearly 464,000 victims (age 12 or older) of rape and sexual assault in the United States each [...]

Wildfire Claims and Coverage

June 14th, 2022|Categories: Complex Business Litigation, HB Tort Notes, Insurance, Journal, Mass Torts, New Featured Post for Home Page, News|Tags: , , , |

The Authors Scott P. DeVries (sdevries@huntonak.com) is a special counsel in the Hunton Andrews Kurth LLP’s Insurance Coverage group in the firm’s San Francisco office where he exclusively represents policyholder clients. An experienced trial and appellate lawyer who has served as lead counsel in landmark appeals in the field of insurance coverage in the California Supreme Court, the Ninth Circuit, and the California Court of Appeal, as well as high-value jury trials, Scott routinely represents clients throughout the country seeking recovery from their insurers on a wide range of insurance issues arising under first-party property policies, comprehensive general liability policies, directors and officers policies, EPLI policies, crime policies, crypto and digital asset policies, and cyber policies. Yosef Itkin is an associate in Hunton Andrews Kurth LLP’s Insurance Coverage group in the firm’s Los Angeles office. His practice focuses on representing and advising corporate policyholders in complex insurance coverage matters. Interviews with leading attorneys and other subject matter experts on new twists in the law and how the law is responding to new twists in the world. Wildfire Claims and Coverage "The wildfires are causing enormous losses for innumerable businesses on the West Coast. Often, you should be able to work with your adjuster to reach a satisfactory resolution. But where needed, you [...]

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