GlobalTort

Russia Raising Pressures Against Smoking

Kirk Hartley — Thu, 17 May 2012 05:10:13 -0600

Tobacco smoking creates enormous amounts of disease and expense. The ACS and others estimate the annual global cost at $ 1.5 trillion - that's annually. So, Russia is now planning a series of actions to reduce smoking, including tax increases and banning smoking in various public places. One wonders - will tobacco litigation follow ?

Attorneys General Support Legislation to Permit Failure to Warn Suits Against Generic Drug Makers

Kirk Hartley — Tue, 15 May 2012 05:43:32 -0600

Litigation industry forces continue to evolve. This week, 41 Attorneys General signed a letter supporting legislation to overturn the U.S. Supreme Court's decision prohibiting failure to warn product liability lawsuits against generic drug manufacturers. The group includes both Republicans and Democrats. Thus, it appears both sides recognize that it is short-sighted and not desirable to let generic manufacturers escape the risks and potential liabilities that face brand name manufacturers.

Lawsuits Related to Alleged Mining Atrocities in the Congo

Kirk Hartley — Mon, 14 May 2012 08:25:43 -0600

A new post by Michael Goldhaber at AmLaw provides a fascinating story regarding efforts to sue regarding alleged mining company atrocities in the Congo. The story covers wide ground but is focused on whether Canadian courts will hear the case. Today, it's a global chess board.

Thank You Mr. Hitchcock - Letters of Note Highlights Benefits Arising from Random Acts of Kindness

Kirk Hartley — Sun, 13 May 2012 05:04:51 -0600

Letters of Note has a touching new post highlighting intangible benefits arising from celebrity kindness, in this instance, Mr. Hitchcock's kindness to a schoolboy.

Big Tobacco Pursuing Emergency Appeals Trying to Hide Internal Documents

Kirk Hartley — Fri, 11 May 2012 08:11:02 -0600

The Canadian tobacco trial continues, and Big Tobacco is trying emergency appeals to try to keep documents hidden under seal. The full story is here from Eye on the Trials.

AIG Back in the News - Will Frauds Be Fully Aired ?

Kirk Hartley — Fri, 11 May 2012 07:03:53 -0600

The wheels continue to grind on whether AIG's alleged frauds will be fully aired. One new development is that a New York appellate court approved a trial for Hank Greenberg on some of the various fraud claims. Second, Judge Kessler has stayed her ruling granting access to reports of the corporate monitor for AIG - the story is here. As mentioned before, Corporate Counsel and its lawyers previously won a ruling requiring disclosure.

Economics of Discrimination and the Growth of Justice - from Marginal Revolution

Kirk Hartley — Thu, 10 May 2012 08:15:20 -0600

What are the economics of discrimination ? Alex Tabarrock from Marginal Revolution put up the following thought-provoking post, and it's repasted here for further dissemination. Law and economics - they go hand in glove.

_____________________________________________________________________

"The Growth of Justice

Posted: 09 May 2012 04:32 AM PDT

Justice is a key ingredient for economic growth. People will not invest if they fear that their life, liberty and property may be subject to arbitrary seizure and destruction. The rule of law and limited government provide a sphere of liberty within which individuals can make decisions with confidence that the fruits of their labor will not taken by the more powerful.

Justice is not just about legislation, however. Public and private discrimination diminish a person’s ability to individuate and develop, an ability that drives innovation and growth in the artistic, economic and scientific realms. In India the caste system binds many people to the lives of their ancestors regardless of desire, talent or will. In parts of the world half the population is subjugated and bound to a limited vision of their life, a vision which is not of their own making. Similar if less extreme forces have limited women and blacks in the United States.

In a pathbreaking paper, The Allocation of Talent and U.S. Economic Growth, Jones, Hsieh, Hurst, and Klenow connect a micro allocation model to a macro growth model to estimate that the lifting of much discrimination in the United States since 1960 has had a large effect on economic growth:

In 1960, 94 percent of doctors were white men, as were 96 percent of lawyers and 86 percent of managers. By 2008, these numbers had fallen to 63, 61, and 57 percent, respectively. Given that innate talent for these professions is unlikely to differ between men and women or between blacks and whites, the allocation of talent in 1960 suggests that a substantial pool of innately talented black men, black women, and white women were not pursuing their comparative advantage. This paper estimates the contribution to U.S. economic growth from the changing occupational allocation of white women, black men, and black women between 1960 and 2008. We find that the contribution is significant: 17 to 20 percent of growth over this period might be explained simply by the improved allocation of talent within the United States.

In other words, the United States has benefited greatly from the growth of justice."

Insurer Found Liable for Unreasonable and Vexatious Treatment of Its Insured When It Argued the Duty to Defend Would be Triggered Only After Payment of the Deductible

Kirk Hartley — Thu, 10 May 2012 05:30:16 -0600

Insurers never cease to amaze, as illustrated by the recent Seventh Circuit decision in American Safety Cas. Ins. v. City of Waukegan, 2012 WL 882504 (March 16, 2012). There, the insurer (American Safety) argued that it had no obligation to defend until a $100,000 deductible had been paid out. That thesis was offered to justify American Safety's failure to file a decalratory judgment suit regarding the disputed coverage obligations. Judge Easterbook shredded the argument: that "line of argument exemplifies American Safety's unreasonable and vexatious treatment of Waukegan." Attorney's fees were awarded against American Safety.

US Plaintiff's Firms Now Promoting Links Between Heart Disease and Asbestos Inhalation

Kirk Hartley — Mon, 07 May 2012 06:10:51 -0600

US plaintiff's firms are continuing to publicize a recent British study finding a link between heart disease and asbestos inhalation. An example from Belluck & Fox is pasted below

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"A new British study reporting that workers exposed to asbestos run a higher risk of developing life-threatening illnesses in addition to mesothelioma is a disturbing finding but not entirely a surprise, New York mesothelioma attorney Joseph W. Belluck said today.

The study, recently published in the Journal of Occupational and Environmental Medicine, found that workers who were exposed to asbestos between 1971 and 2005 had a significantly higher risk of developing cardiovascular disease and suffering strokes than those who were not.

“Asbestos is already linked to mesothelioma, an incurable cancer, and several other serious lung disorders,” said Belluck, whose New York personal injury firm, Belluck & Fox, LLP, dedicates its practice to representing clients with asbestos-related diseases.

“The fact that medical researchers are correlating it with other deadly conditions only highlights its dangers and points to the need for further study of the consequences of asbestos exposure,” he said.

Asbestos is a material that was widely used in shipyards, building, construction, the automobile industry and ceiling and floor tiles. Health organizations, both in the U.S. and internationally, have recognized it as a dangerous carcinogen. Some countries have banned it.

Asbestos is the only substance known to cause mesothelioma. This aggressive cancer affects the lining of the lungs and abdomen. An estimated 2,500 to 3,000 Americans lose their lives to mesothelioma each year.

In the British study, researchers found that workers exposed to asbestos showed a higher rate of death from ischemic heart disease, which is a reduced blood supply in the heart muscle. In addition, 63 percent were more likely to die of a stroke.

Belluck said anyone exposed to asbestos that has become ill should contact an experienced mesothelioma lawyer to learn about their legal options.

“Although it is true that workers are most frequently diagnosed with mesothelioma, they are certainly not the only people who are at risk,” Belluck said. “Asbestos was used in the construction of residences, office buildings and other places where the general public may be found. Even though asbestos is not used now, there are still older structures where asbestos has not been removed, making the threat more widespread.”

Many sufferers of asbestos-related diseases will need extensive medical treatment, he said.

“A successful mesothelioma or asbestos claim can make dealing with the disease, at lease from a financial standpoint, more manageable,” Belluck said. “That leaves victims free to focus on treatment and spending time with their loved ones, which is always most important.”

About Belluck & Fox, LLP

Belluck & Fox, LLP, is a nationally recognized law firm that represents individuals with asbestos and mesothelioma claims, as well as victims of crime, motorcycle crashes, lead paint and other serious injuries. The firm provides personalized and professional representation and has won over $400 million in compensation for clients and their families.

Partner Joseph W. Belluck is AV-rated by Martindale-Hubbell and is listed in Best Lawyers in America, New York Magazine’s “Best Lawyers in the New York Area” and in Super Lawyers. Mr. Belluck has won numerous cases involving injuries from asbestos, defective medical products, tobacco and lead paint, including a recent asbestos case that settled for more than $12 million.

Partner Jordan Fox i s a well-known asbestos and mesothelioma attorney who has been named to the Best Lawyers in America, New York Magazine’s “Best Lawyers in the New York Area” and to Super Lawyers. On two separate occasions his verdicts were featured as the National Law Journal’s Largest Verdict of the Year. He recently secured verdicts of $32 million and more than $19 million on behalf of individuals who had contracted mesothelioma from asbestos exposure.

In September, Belluck & Fox, LLP, won a coveted spot on a list of America's best law firms, which was published jointly by U.S. News & World Report and Best Lawyers magazine. The listing showcased 8,782 different law firms ranked in one or more of 81 major practice areas.

For more information, contact the firm at (877) 637-6843 or through the online contact form."

Will Canada Become A Favored Forum for Securities Litigation ?

Kirk Hartley — Fri, 04 May 2012 06:04:32 -0600

Kevin LaCroix at D & O Diary reviews a recent, broad assertion of jurisdiction by a Canadian court asked to hear securities misrepresentation claims against a Chinese entity. The post also reviews factors relevant to whether Canada will become a favored forum for securities litigation.

Opportunity to Comment on Rules for Delaware's Specialized Commercial Court

Kirk Hartley — Fri, 04 May 2012 05:58:02 -0600

As if Delaware Chancery court is not unique enough, a special court for complex commercial litigation was created in Delaware two years ago as part of Delaware's efforts to further its economy based around serving corporate America. Now there's an opportunity to comment on or suggest rule changes for the commercial court. Specifics are in this post at the Delaware Business Litigation Blog.

Selective Waiver of Privilege Rejected Again

Kirk Hartley — Fri, 04 May 2012 05:52:12 -0600

The 9th Circuit recently joined the group of federal circuit courts rejecting selective waiver of privilege. The opinion is analyzed in depth by Paul Hastings. Key excerpts are:

"On April 17, 2012, the United States Court of Appeals for the Ninth Circuit issued its decision in In re Pacific Pictures Corp., No. 11-71844, ___ F.3d ___, 2012 WL 1293534 (9th Cir. Apr. 17, 2012), holding that a party waives attorney-client privilege in any future litigation by voluntarily disclosing privileged documents to the federal government. In issuing this decision, the Ninth Circuit resolved a critical issue for entities facing agency investigations and joined the majority of other circuits in rejecting the theory of "selective waiver."

***

The case reached the Ninth Circuit when Petitioners sought a writ of mandamus overturning the magistrate's order. Petitioners argued that disclosure of documents to the government, as opposed to a civil litigant, does not waive privilege as to the world at large. In doing so, Petitioners squarely presented an issue the Ninth Circuit had deferred addressing on two prior occasions:1 whether to adopt the theory of "selective waiver" accepted by the Eighth Circuit in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1978), but rejected by every circuit to consider the issue since. See In re Qwest Commc'ns Int'l, 450 F.3d 1179, 1197 (10th Cir. 2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir. 2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir. 2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir. 1997); Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1416–18 (Fed. Cir. 1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir. 1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir. 1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir. 1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C. Cir. 1981)."

Lawyers Viewed as an Economic Positive - In Mediaval Germany

Kirk Hartley — Fri, 04 May 2012 05:30:13 -0600

Alert the US Chamber of Commerce - economists can see lawyers as an economic positive, as detailed below in a post from the Conglomerate. But, no doubt the Chamber would point out that the medieval German lawyers probably were not litigators - we are just bad guys getting in the way of the various spreadsheet jockeys sometimes portrayed as masters of the universe.

Lawyers as Transaction Cost Engineers in Medieval Germany

Posted by Erik Gerding

Here is a highly productive way for business law professors to procrastinate from grading exams:

The National Bureau of Economic Research just circulated a new version of a paper that provides a medieval complement to the law & finance literature and to Gilson's lawyer as transaction cost engineer idea. The paper by Davide Cantoni and Noam Yuchtman presents evidence that the training of commercial lawyers by new universities contributed to the expansion of economic activity in medieval Germany.

ACE Insurance Fined by Texas for Repeated Violations of State Insurance Law

Kirk Hartley — Thu, 03 May 2012 07:01:03 -0600

ACE insurance has been fined in Texas for violating state laws regulating insurers. The story is told on the ACE Litigation Watch, a web site and blog devoted to tracking litigation against ACE. As explained there:

"ACE American Insurance Co. has paid an $8,500 fine to the Texas Department of Insurance after having admitted that it violated numerous provisions of the state’s workers’ compensation laws.

The Philadelphia-based unit of ACE Group was cited by the Texas Commissioner of Workers Compensation for failing to comply with commission orders, among other findings. That applied to three instances one of which involved a contested case hearing decision in which ACE failed to comply in a timely manner. In another instance, the state advised ACE that a decision by a hearing officer regarding benefits is final in the absence of a timely appeal by a party, and is binding during the pendency of an appeal to the appeals panel.

***

The Commission found that ACE violated state law in at least 12 instances. It did not order any administrative action against the company other than the fine, but indicated that failure to comply with the order subjects the company to stiffer penalties."

Somali Piracy Now Has a Blog

Kirk Hartley — Thu, 03 May 2012 05:28:56 -0600

Opinio Juris brings the news that there is now a blog on Somali piracy.

Canada's New Rules for Jurisdiction Over Defendants

Kirk Hartley — Wed, 02 May 2012 05:54:54 -0600

A trilogy of decisions in Canada provides new guidance on exercising jurisdiction over defendants from outside Canada. In general, the new standard is more expansive than past standards. The cases and the new standard are reviewed in many online memos - one is here, from McMillan.

Great Example of Litigation Funding at Work

Kirk Hartley — Wed, 02 May 2012 05:44:30 -0600

Litigation funding continues to produce good outcomes for plaintiffs in need of financing, and the US Chamber of Commerce continues to complain about litigation funding. A recent example of funding by Burford highlights that litigation funding can be great for a business facing unfair actions by a another business (which may be why the Chamber dislikes funding). And, "big law" (Simpson Thacher) happily used the funding to represent its client, after introducing the client to Burford. The latest examples are set out below from a DealBook article by William Alden.

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"In one recent case, Burford backed a real estate developer in Arizona that claimed that a rival had tried to block one of its residential projects. The developer, the Gray Development Group, had hired Barry R. Ostrager, a prominent partner at Simpson Thacher. When the real estate collapse left Gray facing a cash shortage, Mr. Ostrager introduced his client to Burford.

A $6 million infusion from Burford helped Gray pursue a case that resulted in a $110 million award from a jury, according to Bruce Gray, the company’s chairman. With the potential for appeal, the two parties later settled, and Burford stands to get an $18 million payday, Mr. Gray said.

For companies that invest in Burford — institutions like Fidelity and Invesco — such returns have been lucrative at a time when hedge funds and private equity firms have been posting disappointing results. Juridica Capital Management, which has about $200 million under management, reported that 2011 profit increased nearly sevenfold from the year earlier. Burford, with about $300 million under management, posted a tenfold rise in profit in 2011, its second full year of existence.

*****

But some business leaders have questioned the value of the litigation financing industry, said Lisa A. Rickard, president of the Institute for Legal Reform at the United States Chamber of Commerce. A third-party investor, she said, can affect a company’s legal strategy, potentially to its detriment. The American Bar Association recently issued a report that outlined the risks of litigation financing but did not condemn the practice.

John H. Beisner, a partner at the law firm Skadden, Arps, Slate, Meagher & Flom, who has been retained by the United States Chamber of Commerce, testified last year before the House of Representatives that litigation financing could encourage frivolous lawsuits.

“The whole theory is to take the legal system and turn it into a stock market,” Mr. Beisner said in an interview."

Law Firm Pronunciation Guide - US and UK Commercial Firms

Kirk Hartley — Tue, 01 May 2012 05:51:15 -0600

Georgetown Law has kindly provided its students - and the world - a guide to pronouncing the names of various large and boutique US commercial law firms. Hat tip to Bruce Carton at Law.com for flagging this news - it's handy for those few zinger names.

Canada's Chrysotile Institute Has Closed

Kirk Hartley — Tue, 01 May 2012 05:07:32 -0600

After decades of operation, the Canadian-based Chrysotile Institute has closed. The web site is here, but who knows for how long. Future generations may have to use the Wayback Machine to find the site - time will tell.

Challenging Authenticity of Emails Via Computer Inspection

Kirk Hartley — Tue, 01 May 2012 04:26:29 -0600

It's always nice to have a cite for a rule even if the rule seems obvious. An Australian appellate decision - analyzed here by Coleman Greig- holds that of course computers can be accessed if a party claims there was tampering with an email.