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MASS TORTS | CLASS ACTIONS
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Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification

April 6th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , , |

Statistics in Class Certification and at Trial: Leveraging and Attacking Statistical Evidence Lessons From Recent Cases on the Use of Statistics to Prove Classwide Liability and Damages Increasingly, statistical evidence is used by both sides to argue the makeup of the class, damages, liability, and certification in every type of case: employment, data breach, ESG, antitrust, consumer product, and commercial class action cases. Economists and practitioners can use statistics to measure the impact on individual members and show where there is no impact.Building on Wal-Mart Stores v. Dukes, Comcast v. Behrend, and Tyson Foods v. Bouaphakeo, the Ninth Circuit Court of Appeal recently explored the use of statistical expert evidence in satisfying relevant requirements under Rule 23(b)(3) in Olean Wholesale Grocery Co-op Inc. v. Bumble Foods L.L.C. and once again shifted the certification landscape.Class action lawyers must be able to analyze both the methodology and inferential process that produce statistical evidence, and their effect on admissibility, relevance, and strength of the resulting evidence.Listen as our experienced panel of practitioners examines the use of statistics in class litigation and the implications of recent case law for class litigators seeking to use or restrict these kinds of evidence during class certification and trial. James Finberg Partner Altshuler Berzon Aphrodite Kokolis Counsel Schiff Hardin ON-Demand CLE Webinar This Strafford production has been specially selected for HB audiences. What are [...]

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Managing Class Representative Discovery: Plaintiffs’ Strategies for Winning Certification

April 4th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Managing Class Representative Discovery: Plaintiffs' Strategies for Winning Certification Preparing for Discovery Pre-Suit, Negotiating Fair Protocols, Defending Depositions, and Responding To Written Discovery Class representative discovery is an essential component of establishing Rule 23 class certification. Experienced plaintiffs' counsel will need to be well-versed in the many defense strategies for eliciting class representative testimony and discovery that could undermine the claims in a class action lawsuit and challenge class certification. Preparing for discovery begins before the case is filed, and class representatives must thoroughly understand their obligations in the discovery process. Plaintiffs’ counsel must think through and negotiate protocols related to several topics that affect the scope of discovery, including protective orders ESI protocols. Plaintiffs’ counsel must also carefully guide their class representatives through written discovery and depositions, where the class representatives’ responses are critical to the case. Listen as this panel of esteemed class action plaintiffs' lawyers shares strategies on how to best handle class representative discovery and avoid common issues that could present challenges at class certification. David Fernandes Attorney Baron & Budd Phong-Chau G. Nguyen Partner Lieff Cabraser Heimann & Bernstein Now On Demand! Recorded: 4/4/2023  90 Minutes What are the most difficult issues for plaintiffs to navigate during discovery? What protocols are the most important? What types of questioning techniques might be anticipated [...]

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Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule

April 4th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Insurance Coverage for Claims Alleging Breach of Preexisting Duty: Limitations on the Eaton Vance Rule Determining the Source of the Insureds Obligation to Pay an Underlying Claim Liability insurance covers, among other things, an insured’s legal obligation to pay damages to a third party arising out of a claim against the insured for breach of a duty owed to that third party. But what if the damages the insured becomes liable to pay – whether by settlement or court order after a judgment – constitute nothing more than amounts the insured already had a pre-existing contractual or statutory duty to pay, irrespective of whether any claim had been made alleging a breach? This latter category of damages is generally not covered by liability insurance because the insured’s obligation to pay does not result from the third-party “claim”; rather, it results from the pre-existing contractual or statutory obligation. The distinction between covered and non-covered damages for breach of a pre-existing duty is often difficult to see and even harder to explain coherently, for attorneys and judges alike. A significant body of confusing – and sometimes inaccurate, contradictory, and inartfully worded – case law has developed on these issues. Relying on these cases, it is now relatively common for insurers to look for every opportunity to disclaim indemnity coverage for any claim seeking damages based [...]

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Environmental Litigation: Piercing the Corporate Veil, Alter Ego, and Successor Liability

April 1st, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , |

Environmental Litigation Piercing the Corporate Veil, Alter Ego, and Successor Liability Environmental investigations and remediation expenses are costly. Private litigants and state and federal governments often seek viable "deep pocket" entities or high net worth individuals to pay for the cleanup costs allegedly attributable to an otherwise defunct or underfunded company's historical operations that caused the environmental contamination. In the typical scenario, the separate entity (parent company, shareholder, or successor in interest) does not own, lease, or operate the facility at issue, nor did it directly release a hazardous substance into the environment. And often, the former company was dissolved years ago and incorporated in an entirely separate state. Thus, the parent company, shareholder, or successor-in-interest is blindsided by the claims letter, lawsuit, or enforcement order--all of which require a strategic and accurate response. This type of indirect liability can be a real threat in any environmental litigation if pleaded correctly and supported by facts, and not met by a strong, well thought out and supported defense. As such, environmental litigators must be adept at using or defending against these theories of liability before they arise. Listen as our panel provides environmental litigators with an analysis of legal theories of alter ego and successor liability as they relate to environmental liabilities at cleanup sites and provides guidance on factors to consider and [...]

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Government Involvement in Medical Decisions During Outbreaks with Bryce McColskey and Sandra Cianflone

March 28th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , , , |

Government Involvement in Medical Decisions During Outbreaks  It's apparently (and hopefully) on its last legs. The Covid-19 pandemic was the most recent health issue to raise questions around government’s involvement (or interference) in an individual’s control over their own medical treatment. In their article – Government Involvement in Medical Care Decisions During Outbreaks of Disease: How Far is Too Far? – our guests wrote about the intersection of law and medicine. They reviewed medical mandates, implications brought about by the impact of advances in science and medicine, and where role of government to protect public health intersects (or collides) with personal healthcare choices. They focused is on governmental responses to the pandemic, that is, what the government can mandate in the spirit of public health, and not on the separate issue of abortion, which is a “choice” subject for another day. How much authority do government agencies or even the courts have over a person’s healthcare decisions? People often assume the practice of medicine and the enactment and enforcement of laws are separate and independent enterprises; that they remain fixed in their respective corners. However, they wrote, after a deeper  dive  into  history and precedent, it’s evident that the tension between individual rights and health-related mandates has existed for some time. Listen to my interview with the authors, Bryce McCloskey and  Sandra M. [...]

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Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease: How Far Is Too Far? by Bryce McColskey and Sandra M. Cianflone

March 23rd, 2023|Categories: Emerging Litigation & Risk, HB Emerging Law Notes, HB Tort Notes, Journal on Emerging Issues in Litigation, New Featured Post for Home Page, Tort Litigation|Tags: , , , , , , , , |

The Authors Bryce McColskey (bmccolskey@hallboothsmith.com) is an attorney with Hall Booth Smith, P.C., based in Jacksonville, Florida, where he focuses on medical malpractice and professional liability law. Sandra M. Cianflone (scianflone@hallboothsmith.com) is a partner in the Atlanta office of Hall Booth Smith, where she concentrates on a variety of aspects of healthcare defense and chairs the firm’s Coronavirus Task Force. She is also a member of the Editorial Board of Advisors of 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. Government Involvement in Personal Medical Care Decisions During Outbreaks of Disease:  How Far Is Too Far? "Breakthroughs in technologies, our knowledge of diseases and mutations, and advances in treatment options have been remarkable and have drastically reduced fatality rates from disease outbreaks. However, regardless of medical achievements, rapid changes in any field open the door to renewed debates over different laws and individual rights." Abstract: The coronavirus pandemic is the latest health issue to raise the question of government’s involvement (or interference) with an individual’s control over their own healthcare and medical treatment. In this article, the authors, two health care and professional liability [...]

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The Cannabis Employment Law Patchwork with Keya Denner

March 22nd, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , |

The Cannabis Employment Law Patchwork with Keya Denner Maryland and Missouri are the latest states to legalize recreational cannabis for people 21 and older. Voters came out in favor of legalization in the November 2022 midterms, bringing the total recreational jurisdictions to 22 states and the District of Columbia. Voters in North Dakota, South Dakota, and Arkansas, however, decided against recreational marijuana. It remains legal for medical reasons in all five states.  In the employment context, both recreational and medicinal uses raise questions about protections for employees who use the drug legally. Which states are enacting those protections? What do multi-state employers need to do? What about drug testing? As a requirement to get a job and as a requirement to keep your job? What about this: who is going to say whether a worker is impaired? Will there really be hall monitors trained in spotting your high? For answers to these questions and more, listen to my interview with Keya Denner, a partner at Constangy, Brooks, Smith & Prophete LLP. Keya is an experienced litigator who has been practicing labor and employment law for almost 20 years. Few attorneys nationwide match Keya’s expertise in the area of legal cannabis and its impact on the workplace. He has counseled Fortune 500 companies in the retail, hospitality, and global logistics spaces [...]

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The In Pari Delicto Defense to Bankruptcy and Other Claims Against Directors, Officers, and Third Parties

March 22nd, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , , , |

The In Pari Delicto Defense to Bankruptcy and Other Claims Against Directors, Officers, and Third Parties Anticipating or Raising the Defense in Bankruptcy and Other Asset Recovery Litigation Bankruptcy trustees, receivers, creditors, assignees for the benefit of creditors, investors, and other plaintiffs in asset recovery actions often aggressively pursue claims against the management as well as outside professionals and lenders of distressed and insolvent entities, including accountants, auditors, attorneys, banks, and advisers.A significant defense for professionals and banks in such cases is the in pari delicto doctrine. When the plaintiff stands in the shoes of the debtor entity--as do bankruptcy trustees, receivers, assignees for the benefit of creditors, and some others often do--and attempts to recover for the debtor's conduct in which the debtor's officers, directors, or employees were complicit, the defendants often seek to bar recovery arguing that the plaintiff is "of equal fault" with defendants.This defense has been rapidly evolving in the past few years, and its scope varies by jurisdiction. The Madoff and MF Global litigation, among many other high-profile cases, featured this defense prominently. Additionally, insight has emerged from the U.S. Circuit Courts of Appeal and the defense is expected to play a prominent role in the cryptocurrency bankruptcies.Listen as our authoritative panel of trial lawyers discusses recent trends in asset recovery litigation against officers, directors, and outside professionals of distressed companies, as well as banks, [...]

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The New European Unified Patent Court with Marianne Schaffner and Thierry Lautier

March 2nd, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|Tags: , , , , , , , , , |

What's the new European patent court mean to global innovators? The European Union’s new Unified Patent Court is an international body set up by participating EU Member States to deal with the infringement and validity of both Unitary Patents and European patents. The court's objective is “putting an end to costly parallel litigation and enhancing legal certainty.” Unitary patents are intended to make it possible to get patent protection in up to 25 EU Member States by submitting a single request to the European Patent Office, making the procedure simpler and more cost effective for applicants. The new system goes live on June 1, 2023. What must U.S. and multi-national U.S.-based companies understand about the court? Why should inventors and their organizations factor it in to any existing or new patent strategy they may be developing? For answers to these questions and more listen to my interview with attorneys Marianne Schaffner and Thierry Lautier who practice out of the Paris office of Reed Smith. Marianne heads the intellectual Property team in Paris and the patent practice in Europe. She manages complex national and transnational patent, trade secrets and trademark disputes in the healthcare, chemistry, technology and telecommunications sectors. Thierry is part of the firm’s global Intellectual Property Group. With a dual legal and engineering/scientific background, Thierry uses his understanding, knowledge, and experience to provide clients with [...]

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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, Podcasts|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 [...]

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

February 15th, 2023|Categories: ELP, Emerging Litigation & Risk, HB Tort Notes, Podcasts|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 [...]

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Class Certification Evidence: Standards of Admissibility and Probative Value Among the Circuits

February 15th, 2023|Categories: Emerging Issues Webinars, Featured On-Demand, HB Tort Notes, New Webinars, Tort Litigation, Tort Webinars|Tags: , , , , , , |

Class Certification Evidence What Are the Standards of Admissibility and Probative Value Among the Circuits? Numerous splits exist among the circuits on two key certification issues: What is required to prove the elements for class certification and whether plaintiff's certification evidence must be admissible. Further, courts apply different admissibility standards to fact evidence than to expert evidence. Certain courts have issued clear guidance on these important issues, while others have remained circumspect, sending mixed signals. This is particularly vexing for defendants, who may be sued in more than one district or circuit. What is sufficient for class certification in one jurisdiction may be inadequate in another. With standards unsettled, counsel must anticipate and preserve the right to revisit class certification by preserving all objections and the factual record. Listen as the panel of class action attorneys discusses the standards of admissibility of evidence at certification and best strategies for leveraging ambiguities. Questions Addressed How can defense counsel preserve objections to admissibility? How can counsel leverage the law of other circuits in jurisdictions with no controlling precedent? What does how a court assesses evidence imply about its view on admissibility standards? Webinar Outline Fact evidence Need not be admissible Must be admissible Ambiguous Expert evidence Full Daubert analysis Limited Daubert analysis Strategies for managing and leveraging the uncertainty A Strafford production specially selected [...]

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