Consumer Law & Policy Blog

« January 2016 | Main | March 2016 »

Friday, February 19, 2016

The role of repeat players in aggregated litigation

Law prof Elizabeth Chamblee Burch and Federal Judicial Center senior researcher Margaret Williams have written Repeat Players in Multidistrict Litigation: The Social Network. Their research found based on limited data "reason to be concerned" that plaintiffs are being shortchanged at the expense of plaintiffs' lawyers and defendants. Here is the abstract:

To promote pretrial efficiency, the Judicial Panel on Multidistrict Litigation has transferred 36 percent of the entire federal courts’ civil caseload to transferee judges for coordinated handling. Transferee judges then pick plaintiffs’ attorneys to lead and manage those cases, and the same attorneys appear in proceeding after proceeding. While past studies have considered repeat play on the plaintiffs’ side, the current study is the first comprehensive empirical investigation of repeat play on both sides. We found robust evidence of repeat play among both plaintiff and defense attorneys and, using social-network analysis, established that a cohesive multidistrict-litigation leadership network exists. That there are repeat players in multidistrict litigation matters considerably. Lead lawyers control the litigation, dominate negotiations, and design settlements. To consider repeat players’ influence, we examined the publicly available nonclass settlements these attorneys negotiated, looking for provisions that one might argue principally benefit the attorneys, and not one-shot plaintiffs. By conditioning the deal on achieving a certain claimant-participation rate and shifting the deal-making entities from plaintiffs and defendants to lead lawyers and defendants, repeat players tied all plaintiffs’ attorneys’ financial interests to defendants’ ability to achieve closure. Over a 22-year span, we were unable to find any publicly available nonclass settlement that didn’t feature at least one closure provision (which benefits the defendant), and likewise found that nearly all settlements contained some provision that increased lead lawyers’ fees. Based on the limited settlements available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings — when they “play for rules,” so to speak — the practices they develop may principally benefit them at the expense of one-shot plaintiffs.

 

Posted by Brian Wolfman on Friday, February 19, 2016 at 08:39 AM | Permalink | Comments (0)

The relationship (if any) between judicial campaign contributions and judicial outcomes

Prof. Ryan Rebe has written Analyzing the Link between Dollars and Decisions: A Multi-State Study of Campaign Contributions and Judicial Decision Making. Here is the abstract:

This article examines the causal connection between attorney contributions and judicial decisions in elective states. The results show that contributions are a significant predictor of appellant success in state supreme courts when judges receive contributions from the attorneys for the appellant. However, this relationship is contingent on the competitiveness of the judicial seat. The analysis shows that judges who win landslide victories in the previous election are less likely to vote with contributors during their term than judges who win close elections. This evidence bolsters the argument that contributions directly affect decision making when judges feel electoral pressure. The results also support the proposition that elected judges are more likely to vote with donors in states with nonpartisan ballots. While the contribution amounts are higher in partisan states, the judges in the nonpartisan sample are more closely aligned with their contributors when it comes to decision making.

Posted by Brian Wolfman on Friday, February 19, 2016 at 08:21 AM | Permalink | Comments (0)

Thursday, February 18, 2016

Ninth Circuit Opinion Applies Significant Choice-of-Law Analysis Before Striking Right of Publicity Claim Under the First Amendment

by Paul Alan Levy

In an opinion that bristles with significant issues, the Court of Appeals for the Ninth Circuit has upheld the dismissal of a lawsuit by Sgt. Jeffrey Sarver asserting that a Hollywood studio could not release a film based, in part, on a fictional portrayal of important public events  in which he played a part without obtaining his permission and, in fact, paying for the right to talk about him.

The case involved the Hollywood blockbuster Hurt Locker, which apparently used the real-life experiences of plaintiff Sarver, who served as an explosives expert in Iraq, as the basis for fictional character Will James.  Sarver, who was assigned to a military facility in New Jersey at the time the film was released, brought suit in federal court there alleging claims of misappropriation of likeness and right of publicity, as well as defamation and related torts based on the ways in which the fictional aspects of the James character departed from the facts of his life.  After the New Jersey court granted a motion to transfer the case was transferred to the Central District of California, where most of the defendants were located, they filed a special motion to strike under California’s anti-SLAPP statute.

Continue reading "Ninth Circuit Opinion Applies Significant Choice-of-Law Analysis Before Striking Right of Publicity Claim Under the First Amendment" »

Posted by Paul Levy on Thursday, February 18, 2016 at 02:41 PM | Permalink | Comments (0)

Anthem data breach suit will proceed

This week, Judge Koh of the Northern District of California dismissed some claims but allowed others to go forward in a suit against health insurer Anthem over last year's data breach that put at risk the personal information -- including names, social security numbers, income information, and more -- of about 79 million customers.

Reuters reports here (non-subscription) or check out the more detailed Westlaw story here (subscription).

Posted by Scott Michelman on Thursday, February 18, 2016 at 10:57 AM | Permalink | Comments (0)

DOJ Consumer Protection Branch Announcements

Here are some recent announcements from the Department of Justice's Consumer Protection Branch:

February 12, 2016 District Court Enters Permanent Injunction Against Maine-Based Seafood Company and Its Owner to Prevent Distribution of Adulterated Products

February 4, 2016 Father and Son Found Guilty in Manhattan Federal Court in Connection with Multimillion-Dollar Vending Machine “Business Opportunity” Scheme

February 3, 2016 Texas Woman Sentenced to Prison in Prescription Drug Smuggling Ring

February 1, 2016 California Man Operating Phone Room in Debt Relief Scam Pleads Guilty to Defrauding Consumers

January 28, 2016 Federal Criminal Charges Filed Against Two Pharmacists for Adulteration of Drugs in Connection with Alabama-Based Compounding Pharmacy

January 22, 2016 Delaware Cheese Company Agrees to Plead Guilty to Food Adulteration Charge, Signs Consent Decree

January 11, 2016 District Court Enters Permanent Injunction to Prevent Dallas Compounding Pharmacy and Three Individuals from Distributing Adulterated Drugs

December 18, 2015 Peruvian Man Sentenced for Threatening and Defrauding Spanish-Speaking Consumers Through Fraudulent Call Centers

December 8, 2015 United States Files Consent Decree of Permanent Injunction Against Vermont Dairy Farm to Stop Distribution of Adulterated Food and Unlawful Administration of Veterinary Drugs

Posted by Allison Zieve on Thursday, February 18, 2016 at 10:45 AM | Permalink | Comments (0)

Middle-class minorities are most at risk of falling behind on student loans, report says

That's the headline of this article by Danielle Douglas-Gabrielle. Here's an excerpt:

Researchers [at Washington Center for Equitable Growth] found that a correlation between the share of minorities in a Zip code and loan delinquency rates is highest for people in the middle of the income distribution. Among Zip codes with a median income of around $60,000, those with large Hispanic populations have much higher rates of past-due loans than those without. Delinquency rates are similarly high in predominantly African American neighborhoods with median incomes above $60,000, according to the center. 

Go here to read the whole report.

Posted by Brian Wolfman on Thursday, February 18, 2016 at 10:07 AM | Permalink | Comments (0)

Wednesday, February 17, 2016

Bar Grievance Over Allegedly Defamatory Lawyer Blog Is Dismissed on First Amendment Grounds

by Paul Alan Levy

Last month I wrote about a proceeding in which Michigan’s Attorney Grievance Commission was investigating Steven Gursten, a Michigan lawyer who had criticized Dr. Rosalind Griffin, a member of the state disciplinary apparatus, for perjuring herself in expert testimony in one of his cases.  I argued that the very process of conducting such investigations has a chilling effect on lawyer bloggers, and suggested that the Grievance Commission should dismiss the case out of hand on First Amendment grounds.

I was pleased to learn this afternoon that, in a letter dated one week after my blog post on the subject, the Grievance Commission denied the grievance on the ground that Gursten’s blog was protected by the First Amendment as well as Michigan’s own constitution.   And unlike a few previous cases, in which dismissals of complaints over lawyers' extra-judicial speech were accompanied by ominous warnings to the lawyers to watch themselves in the future, this dismissal simply recognized the constitutional protection.

Continue reading "Bar Grievance Over Allegedly Defamatory Lawyer Blog Is Dismissed on First Amendment Grounds" »

Posted by Paul Levy on Wednesday, February 17, 2016 at 05:44 PM | Permalink | Comments (0)

“Psycho Dentist” Gordon Austin Pays $12,000 in Fees for Having Served Subpoena to Identify His Critic

by Paul Alan Levy

The lawyers for Gordon Austin, the former Carrollton Georgia dentist who filed a lawsuit over the YouTube posting of a news report about his indictment for having beat his patients with a dental instrument when, insufficiently anesthetized, they cried out in pain, have now withdrawn his subpoena to identify the poster, paid $12,000 in attorney fees, and agreed to dismiss the lawsuit with prejudice.  The YouTube video had been posted with under the title “Psycho Dentist – Gordon Trent Austin.” 

This development followed the filing of a motion to quash the subpoena which also sought an award of attorney fees against both the dentist and the law firm representing him, the Atlanta-area firm of Coles Barton.   It remains a mystery why Austin and his lawyers thought they could get away with a meritless libel suit, and considering that we warned his lawyer that a motion to quash was coming and explained why it would be granted, it is an even greater mystery why they did not get out while the getting was good.  My best guess is that they never focused on the fact that section 1987.2 of California’s Code of Civil Procedure provides that, when a Doe defendant successfully moves to quash an identifying subpoena, attorney fees "shall" be awarded in favor of the Doe.

Meanwhile, the lawsuit has served to increase public attention to Austin’s history of misconduct, with particularly extensive coverage on Consumerist.  Before the lawsuit was filed, the YouTube video was the only reference to Austin's legal travails that appeared among the first ten results of a Google search for his name and profession; today, that link remains among the top ten, but there are also links to two stories that mention his crimes (and his effort to suppress the video), as well as a link to the decision of the Georgia Court of Appeals reinstating his indictment.

Posted by Paul Levy on Wednesday, February 17, 2016 at 03:09 PM | Permalink | Comments (0)

Jewelry store turned subprime lender?

Bloomberg has this story on Zales' parent Signet Jewelers, which some analysts say "is pushing the limits of credit and accounting so far that it’s starting to look less like a jewelry business and more like a finance company."

Posted by Allison Zieve on Wednesday, February 17, 2016 at 10:00 AM | Permalink | Comments (0)

Tuesday, February 16, 2016

Two new healthcare proposals from President Obama

President Obama's recently proposed fiscal-year 2017 budget includes two new healthcare proposals: (1) requiring drug companies to disclose various production costs for specific drugs, including research and development costs; and (2) and allowing the HHS Secretary to negotiate with drug companies on certain high-cost drug prices under Medicare Part D. Read about these proposals, and drug-industry opposition to them, in this essay by David Lazarus.

Read all of the Administration's health-care proposals here. 

Posted by Brian Wolfman on Tuesday, February 16, 2016 at 02:21 PM | Permalink | Comments (0)

« More Recent | Older »