- Poster case for cy pres abuse: Cato files amicus brief in Google referral header privacy class action settlement [Ilya Shapiro, earlier]
- “California Court Decision Offers Hope for Procedural Brake on Lawyer-Driven Class Actions” [Glenn Lammi, WLF on Noel v. Thrifty Payless]
- New book details Tampa attorney Brian Donovan’s frustrations with multi-district litigation (MDL) in Transocean spill case [Amanda Robert, Legal NewsLine]
- West Virginia: “House moves to limit Attorney General’s use of settlement funds” [Brad McElhinny, WV Metro News]
- “2017 Civil Justice Update” [Mark Behrens and Sarah Goggans, Federalist Society white paper]
- “Here’s why you’ll be paying more for car insurance if you live in Baton Rouge, New Orleans” [Dan Fagan, The Advocate]
It’s a cy pres special: members of the injured class will get no part of an $8.5 million settlement Google negotiated with plaintiff’s lawyers over a data privacy lapse. “Instead, the money is to be split among the plaintiffs’ attorneys, who billed their time at $1,000 an hour, and others. The others are cy pres recipients, or organizations that are not parties in the suit: Carnegie Mellon University; World Privacy Forum; the Center for Information, Society and Policy at the Chicago-Kent College of Law; Stanford Center for Internet and Society; Harvard University’s Berkman Center; and AARP Inc.” Ted Frank’s Center for Class Action Fairness is asking the Supreme Court for a writ of certiorari after its objections were turned down by lower courts. [Dee Thompson, Legal NewsLine, earlier here and here (Beck: “cy pres abuse poster child”)]
Plus: Bank of America settlement will now yield cy pres windfall for five University of California law schools of $150,000 rather than $20 million. Easy come, easy go? [ABA Journal]
- “The entire panoply of extreme cy pres abuse is present”: Google privacy class action [James Beck; Ted Frank petition for rehearing]
- Settlement administrator greatly overestimated claims in TCPA suit against Rita’s Italian Ice, judge orders reallocation of money to class [P.J. D’Annunzio, Legal Intelligencer]
- “U.S. Judges Could Learn From U.K. Court’s Rejection Of MasterCard Class Action” [Daniel Fisher]
- Revisiting a failed 1978 proposal to replace class action with hybrid public/private enforcement [David Freeman Engstrom, U. Penn. L. Rev. via CL&P]
- David Marcus (Arizona), “History of the Modern Class Action, Part II” covering 1981-1994 [forthcoming Fordham L.Rev., I turn up in footnote 360 and a couple of others; Part I is here]
- Medical monitoring class actions, once seen as wave of future. have not done well [John Sullivan, Drug & Device Law]
- “The Impropriety of Punitive Damages in Mass Torts” [James A. Henderson Jr., forthcoming Georgia Law Review/SSRN via Stephen McConnell, Reed Smith/JD Supra]
- “Will SCOTUS Ruling Affect Philadelphia Court, Where 94% Of New Plaintiffs Are From Out Of State?” [Nicholas Malfitano, Penn Record/Forbes, earlier on Bristol-Myers Squibb v. Superior Court]
- Time for asbestos trusts to do what’s right [Christine Biederman, The Hill]
- “Google’s $8.5m class-action privacy payout goes to: Lawyers’ alma maters, web giant’s pals” [Kieren McCarthy, The Register on Ninth Circuit settlement approval]
- European Court of Justice should take lesson from American courts which after relaxing rigor of causality scrutiny, and seeing baseless payouts multiply, have since been on a Daubert rebound [Theodore Dalrymple, Law and Liberty; Marilyn Moberg and Kathryn Bond, Drug and Device Law]
- Law firm gold rush for opioids-recoupment suits continues as New York counties sign up [Steve Lieberman, Journal News (Rockland County, N.Y.]
In the D.C. Circuit case of Keepseagle v. Perdue, mentioned in this space last month, Judge Janice Rogers Brown had some choice words regarding the constitutional status of class-action slush funds arising from the settlement of a suit against the federal government on behalf of Native Americans claiming discrimination against them by the Department of Agriculture:
$380,000,000 is, to use the late Senator Dirksen’s wry phrase, “real money.” That is what has been left on the table for private disbursement in this case. Perhaps one day, I will possess my colleagues’ schadenfreude toward the Executive Branch raiding hundreds-of-millions of taxpayer dollars out of the Treasury, putting them into a slush fund disguised as a settlement, and then doling the money out to whatever constituency the Executive wants bankrolled. But, that day is not today….
The Executive Branch may wish to favor certain interests on the taxpayer’s dime. It may wish to use the Judicial Branch’s enforcement of settlement agreements to avoid asking Congress for an appropriation. But the Constitution’s design gives the People’s elected representatives a means to thwart these “overgrown prerogatives.” . . . By limiting the “judicial Power” to resolving “Cases” and “Controversies,” . . . the Constitution ensures the Judicial Branch has “no influence over . . . the purse.” . . . Expenditures toward the fulfilment of public policy are integral to policymaking itself, and policymaking is left to the legislature. . . . In short, congressional control over the People’s purse is a structural limit on both the Executive and Judicial Branches.
Alas, the analysis came in a dissent. Mark Pulliam writes up the case at Liberty and Law.
My new piece at Cato begins:
In a memo dated June 5, Attorney General Jeff Sessions has ended the practice by which the Department of Justice earmarks legal settlement funds for non-governmental third-party groups that were neither victims nor parties to the lawsuit. This is terrific news and a major step forward in respecting both the constitutional separation of powers and the private rights that litigation is meant to vindicate.
On the separation-of-powers aspects of these slush funds, I go on to recommend a vigorous dissent by Judge Janice Rogers Brown in the recent D.C. Circuit case of Keepseagle v. Perdue. Whole thing here.
With both Congress and White House now in Republican hands, the U.S. House of Representatives is moving with dispatch to consider a series of litigation reform measures, some stalled for years by Democratic opposition and others of relatively recent vintage. Bruce Kaufman at BNA Bloomberg has a three-part series (first, second, third) followed by an update today on the looming battle over the six main bills:
- The Lawsuit Abuse Reduction Act (H.R. 720) “requires judges to impose mandatory sanctions on attorneys who file ‘meritless’ civil cases in federal courts.”
- The Fairness in Class Action Litigation Act (H.R. 985) which “affects nearly all facets of class action practice” and in particular “class certification requirements, capping or delaying distribution of fees to class counsel, requiring the disclosure of litigation financing, and tying the reporting of settlement data to plaintiffs’ lawyers’ fees.” [More: various academic opponents weigh in here, Andrew Trask defends provisions of the bill here and here, and see earlier]
- The Innocent Party Protection Act (H.R. 725) “targets what is known as fraudulent joinder—the improper addition of [local] defendants to suits in a bid to keep cases in more plaintiff-friendly state courts.”
- The Furthering Asbestos Claims Transparency Act (H.R. 906) “mandates increased reporting of payments to plaintiffs by trusts that pay out asbestos exposure claims against bankrupt companies,” in hopes of preventing undisclosed duplicative collection of damages over the same injury.
- The Stop Settlement Slush Funds Act (H.R. 732) which “seeks to bar the Department of Justice from entering into settlements that steer funds to favored third-party groups.”
- The Sunshine for Regulatory Decrees and Settlements Act (H.R. 469) Goes after what have been called “sue-and-settle” processes at EPA in which the agency reaches concessionary terms with ostensibly adverse litigants who seek to expand its authority.
Trial lawyers and allies in the Litigation Lobby aren’t standing idly by: “opponents hope to gum up the works.” Even if many bills clear House passage, getting to 60 votes in the Senate in the face of filibuster threats could prove difficult, despite the departure of perennial trial lawyer ally Harry Reid (D-Nev.), and the views of President Trump are not entirely clear. More: Washington Examiner editorial on class action measures.
- Online accessibility demands under the ADA: “Surge in website lawsuits continues” [Retail Law Advisor, background]
- Even with no trade war yet, jitters affect livestock growers through slump in cattle futures [Richard Parker, Dallas News] Federalist Society/American Branch of the International Law Association panel on trade law in Trump era [part of symposium with panels on international law generally, alliances and interventions]
- “There is yet another more level of nerdiness, courtesy of Professor David Noll. Anne Gorsuch signed the rule at issue in Chevron.” [Josh Blackman]
- Stop Settlement Slush Funds Act reintroduced as H.R. 522 and likely again to command majority support in House Judiciary Committee [Rep. Bob Goodlatte, earlier (in face of veto prospect, committee approved bill last term by 18-6 vote), more: Fox News, earlier]
- Did Obama DoJ civil rights chief Vanita Gupta act without lawful authority? [Thomas Berry, Cato Legal Policy Bulletin]
- A second Trump executive order on regulation establishes reform officials within agencies [Brian Knight, Reuters, text, earlier on first order]
George Will’s new column is on settlement slush funds, a favorite topic around here. A Wall Street Journal op-ed the other day by Andy Koenig observed that tens of millions of dollars from settlements with big banks by the Obama Department of Justice and New York Attorney General Eric Schneiderman are being directed to liberal political groups allied with Obama and Schneiderman, rather than to customers or taxpayers. Earlier here, here, here, here, here, etc.
The House Judiciary Committee, by an 18-6 vote, has given its approval to the Stop Settlement Slush Funds Act of 2016, which would curtail the Department of Justice’s practice of using legal settlements to funnel money to favored groups [Rep. Bob Goodlatte press release, Nicholas Quinn Rosenkranz, Dan Lungren testimony, U.S. Chamber] Earlier here (Randal John Meyer), here, etc.