Emerging Litigation Podcast
Data-Driven Legal Guidance with Ed Walters
Today we’re going to talk about the weather. But only for a minute. Mostly we’re going to talk about the use of big data in the practice of law. There is a reason IBM acquired the digital assets of The Weather Channel, and it's not because they are climate nerds. They bought it to put weather data to work to “operationalize [the] understanding of the impact of weather on business outcomes.” Think about the economic impact of snowstorms, hurricanes, and even less dramatic weather conditions, or the impact on the durability of manufacturing or building materials as temperatures rise or fall outside the norm. While we all crave meteorological precision, we also crave precision when making legal and business decisions. Clients ask questions like these all the time: What is our case worth? What size award will we get? Where should I file? Will the judge grant summary judgment? Should I even bring this suit? Lawyers will draw on experience to offer their best advice, providing ranges followed by caveats and usually preceded by the most lawyerly of lawyer answers: “It depends.” As my guest points out, lawyers also get business-related questions. Business-related answers may begin with "it depends," but must end with a number. When a CEO asks how much revenue your project will generate, "more" is not the answer they're looking for. I know. I've tried. Lawyers who seek greater precision in their predictions can take comfort in the increasing sophistication of analytical tools that can evaluate massive troves of data and account for myriad variables. Not only are we seeing advances in machine learning, artificial intelligence, and language processing, but there is greater access to important litigation-related data – BIG DATA – than ever before. Using new technologies to comb through millions of records – combined with an attorney’s insights – cannot only [...]
PFAS Consumer Fraud Litigation with John Gardella
These stubborn chemicals are everywhere. But when they find their way into products, shouldn't someone tell consumers? Per- and poly-fluoroalkyl substances (“PFAS”) are a family of more 12,000 manmade compounds. That's a huge family. 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 bringing suits against companies for claiming their products and the making of their products are safe and green. New consumer lawsuits seeking millions in damages are targeting oral hygiene products -- like a recent case involving dental floss -- cosmetics, apparel, and food packaging. Listen to my interview with environmental lawyer John Gardella of CMBG3 Law who discusses why PFAS concern citizens, media and legislators, what legal risks corporations face, and why we're seeing a surge in consumer fraud litigation. This podcast is the audio companion to the Journal on Emerging Issues in Litigation. The Journal is a collaborative project between HB Litigation Conferences and the Fastcase legal research family, which includes Full Court Press, Law Street Media, and Docket Alarm. The podcast itself is a joint effort between HB and our friends at Law Street Media. If you have comments or wish to participate in one our projects please drop me a note at Editor@LitigationConferences.com. (actual size) Tom Hagy Litigation Enthusiast and Host of the Emerging Litigation Podcast Home Page LinkedIn PFAS Consumer Fraud Litigation with John Gardella John Gardella is a Shareholder and recognized thought leader on PFAS issues. He is licensed to practice in Massachusetts and Tennessee. A seasoned trial attorney with over 75 verdicts, John is the Chair of the firm’s PFAS, Environmental, Risk Management & Consulting, and ESG practice groups. His thought leadership and predictive risk abilities with respect to PFAS [...]
Medical Monitoring for Modern Times with Ed Gentle
Medical Monitoring for Modern Times: Attorney and court-appointed neutral Ed Gentle shares his vision for a new paradigm for mass torts. Marissa, a resident of a small town in Kentucky, learned that for some time her drinking water may have been contaminated with so-called "forever chemicals" or PFAS. It's really a collection of chemicals used in products like fire-suppression foam, cookware, stain-resistant sprays, and food packaging. A local public radio reporter covering the story asked Marissa for her reaction. "I was never informed," she said. "And now I'm worried, like, I hope I don't have issues some day in my life." Marissa's concern is like that of many people who find themselves in this situation and is at the center of this episode. When a case like Marissa's goes to court, plaintiffs will seek a ruling that the responsible parties pay for years of medical monitoring. That means they are suing often without signs of an existing injury, and that defendants must pay for something when an injury may not arise. Attorney, author, and court-appointed case neutral, Edgar C. Gentle III, says that approach is antiquated. He outlines a better way in his 2014 essay titled The Medical Monitoring Tort Remedy: Its Nationwide Status, Rationale and Practical Application (A Possible Dynamic Tort Remedy for Long Term Tort Maladies). Now he shares his latest insights on the Emerging Litigation Podcast. Ed Gentle is the Founding Partner of Gentle Turner & Benson, LLC in Birmingham, Ala. He is a Rhodes Scholar and has five college degrees, three in law. He has practiced for nearly four decades, spending 90% of his professional time serving as a neutral assigned by judges to oversee aspects of mass tort litigation and settlements. He has helped create and administer over $2 billion in settlements during the past 25 years. Education: Bachelor of Science, Auburn University, summa cum laude, [...]
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Emerging Litigation Journal
TVPRA, State Statutes Open Door for Civil Damage Claims by Human-Trafficking Victims
Since 2003, when Congress opened the door for human-trafficking victims to sue for civil damages under the Trafficking Victims Protection Act of 2000 (TVPRA), the TVPRA and similarly drafted state statutes have allowed for human-trafficking victims to seek civil damages against any party that has benefited from their trafficking. Given this expansive inclusion of third-party liability, more and more businesses, especially those in the hospitality industry, are ultimately the ones left to pay for the criminal acts of human traffickers. In this article, the authors, Coryne Leyendecker and Pamela Lee discuss the evolving litigation around human-trafficking claims and offer guidance on how businesses can build a foundation for their own defense while simultaneously helping prevent human-trafficking crimes from occurring in the first place.
Spotting the Risk, Reaping Rewards: Avoiding Increased Antitrust Scrutiny
The Authors Katie has favorably represented antitrust clients in matters involving monopolization, conspiracy, price fixing, exclusive dealing, and other competition-related disputes, including trade secrets and non-compete actions. She has extensive knowledge of the regulatory hurdles and obligations her clients face. Katie earned her J.D. from the New York University School of Law, cum laude. Natalie West represents sophisticated clients in complex commercial disputes. She regularly serves as the lead brief writer in antitrust cases, employment and consumer class actions, and appellate matters. Natalie graduated with high honors from the University of Texas School of Law, where she served as a member of the Texas Law Review and was elected to the Order of the Coif. 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. Avoiding Antitrust Scrutiny Spotting the Risk, Reaping Rewards The increase in aggressive antitrust enforcement has certainly received significant attention. For the moment, juries are not rewarding the prosecutors. That said, even an unsuccessful government investigation is itself costly and can motivate plaintiffs’ lawyers. Best practices involve not only following the law but also maintaining solid optics to avoid the need for an expensive, if ultimately successful, defense. Abstract: A decade ago, few lawyers across the country spent significant time thinking about antitrust law. But, since then, there has been an onslaught of antitrust attacks on businesses and executives across all sectors of the economy. Enforcement efforts have skyrocketed following President Biden’s July 2021 executive order directing a “whole of government” crackdown on competition abuses—and the trend shows no sign of letting up. Today, no matter the industry or the size of the business, everyone needs to understand these risks and have strategies to minimize them. This article will walk [...]
International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation
The Authors Benjamin Daniels advises financial institutions and global corporations about litigation and dispute resolution. As a member of the Business Litigation Group, Ben provides creative and ardent advocacy during litigation, enforcement actions, investigations, crisis management, and white-collar defense matters. Ben’s clients often face complex, cross-border disputes. He has deep experience with the interplay between domestic and international courts, including discovery disputes and Hague convention proceedings. He also represents clients in international arbitrations and mediations. Jenna Scoville is a member of the firm’s Business Litigation Group. She focuses her practice on all aspects of general business litigation and dispute resolution, as well as government enforcement matters, and appellate work. She helps companies respond to a variety of business disputes, including claims for breach of contract, unfair trade practices and fraud. Jenna also has extensive appellate experience. Prior to joining the firm, she clerked for the Honorable Peter W. Hall of the U.S. Court of Appeals for the Second Circuit. 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. International Discovery Tool Kit Aims to Facilitate Discovery in Both Domestic and Foreign Litigation "At a time when litigants have increasingly relied on U.S. federal courts to obtain otherwise unobtainable evidence from entities located within the United States, the U.S. Supreme Court has decisively closed the door to U.S.-style discovery in private arbitrations abroad. That means U.S. companies will no longer face the time, exposure, and expense of U.S.-style discovery that § 1782 had injected into those proceedings." Abstract: Business knows no borders. Every year companies increase their global reach and open new offices both domestically and abroad. The COVID-19 pandemic accelerated this process—remote employees spread documents and witnesses from Chicago to Shanghai to Sumatra. This [...]
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