April 14th Notes

Complex Litigation
April 14, 2010

Differences from Litigation to Complex Litigation
1. Working as a group
2. Less reliance on formal discovery
3. Judges are aggressive

Book necessary for complex litigation: "The Manual for Complex Litigation"

Requests for Admissions in Complex Litigation
    -not as important in complex since the judge's power
    -eliminate irrelevant, immaterial or redundant material and evidence

Trial Itself
    -Judge's do time qualifying the jury
        -not completed in 10 day window, usually longer
        -want to avoid mistrial, find out who can serve for a longer time
    -evidence has all been streamlined
        -everything gets moved into evidence

Ten Subjects that can fall into Complex Litigation

Class Actions  (CR/FRCP 23)
1. Numerosity (40) so as to make CR 19 joinder "impractical"
    -need enough people to bring in or there are too many people to bring in
    -you must ask the court permission to form a class action
   
2. Common question of law or fact which "predominates"
    -all issues need not be identical

3. A representative whose claim is "typical" of those in the class
    -can not be anyone famous or powerful, needs to represent the average person in the class

4. A representative who will "fairly and adequately" protect & speak for the class
    -Can not dismiss without court approval (cf. CR 41) (see CR 23(e))

-Otherwise, class will not be certified by the court
-You must opt out otherwise you are part of the lawsuit
-Do not need minimum contact or residency
-Courts do not like class action lawsuits
    -due process does not work
        -individuals may be left out

Multiple Litigation
    -multiple people suing for the same harm but do not meet the requirements of a class action
    -may have opted out of the class action and are pursuing a lawsuit on their own
    -usually one judge assigned to all the cases, not always possible
        -may consolidate all the cases, but still have individual outcomes
        -if not that, try to get them all in one jurisdiction

Criminal
    -not usually complex litigation, unless there are novel issues
        -decades of crime, multiple victims, organized crime
    -the electronic surveillance issue, they check up front about how it is conducted
        -if it is, the information must be turned over immediately
    -court has power to limit media access to courtroom, statements, gag orders, jury sequestered

Antitrust
    -illegal method of excluding competition by achieving a monopoly to the detriment of the public
    -Monopolies are not illegal, the intent to is
    -Sherman Antitrust Act 1890
    -Need to show direct injury and an impact on interstate commerce
    -some are exempt: MLB, Railroads, Insurance, Teamsters
    -then you must define monopoly in the marketplace, usually 70% control of the market

Mass Torts
    -airline crashes, chemical explosions, huge fires, oil spills, nuclear meltdown
    -multiple people are hurt or injured
    -Toxic Torts: asbestos, fertility drugs
    -Product Liability: tires, cell phones, laptops, breast implants, iuds
    -defendant facing a high volume of repetitive litigation
    -there are may lawsuits that can arise, but you must worry about future plaintiffs
        -try to organize in some fashion to litigate
    -Another method is a representative case: take one defendant and one plaintiffs and use that as a template for the cases
    -Another method is issue by issue
    -Another method is all the plaintiffs and all the issues one by one
    -Would prefer to throw these into a class action

Securities Fraud
    -CR 9
    -securities are more than stocks and bonds, profit by ownership of the work of another
    -SCC only gets involved when assets are traded interstate
    -intrastate security offering have their own per state
    -pleadings are lengthy and detailed
        -all fraud pleadings must be plead with specificity
    -business judgment rule: well reasoned, good faith decisions is not grounds for liability
    -blue sky laws: people can't sell you anything
   
Employment Discrimination
    -fairly new to complex litigation, Title 7 of the Civil Right Act in 1964
        -allowed for back pay, compensatory damages, future damages, pain and suffering
    -"pattern or practice"  Denny's and McDonald's were guilty of this against African-Americans
    -need to address unions usually

Patents (Title 35)
    -only Federal just like Bankruptcy
    -USC books
    -patents: secures ownership over things (inventions, machines)
        -20 years only
    -copyrights: protects music, movies, music, ideas
        -50 years
    -trademarks: with the protect for identification
        -10 years, renewable forever
    -patents get the least amount of protection: the importance in our lives
        -need to have the improve faster

    -most complex field of law, have a separate bar for lawyers
        -usually only two parties
    -patent infringement lawsuits
        -always a counterclaim of unfair competition, wrongful business interference, antitrust

    -all Federal patent appeals go to the Federal court of appeals
        -13th Circuit Federal Circuit hears patents

CERCLA (Comprehensive Environmental Response, Compensation & Liability Act)
42 USC § 9601-9675 (1980)
    -"Superfund": set up to clean America's toxic waste sites
    -Title 42 Public Health and Welfare Code 
    -Federal only
    -could be EPA, government, individual, group
    -scores of counterclaims, that can go back for decades, thousands of potential defendants
    -nation wide service of process

    PRP (Potential Responsible Party)
    1. Any current owner or operator of a site declared to be Superfund
    2. Past owners or operators
    3. Anyone who arranged for disposal on the site (generator)
    4. Anyone that transported to the site
   
    -does not matter if it was legal when you did it, you are still liable
    Only two defenses:
    1. Act of Nature (God)
    2. Another party was 100% liable

    -funded this with a billion dollars in 1980 almost 3 billion in 2010
    -1980: 1518 sites   cleaned 278 (18%)
    -2010: 2500 sites   funding cut 35%  average time to clean 11 years  cleaning 622

    Top ten offending States
    1. New Jersey 113 sites
    2. California
    3. Pennsylvania
    4. New York
    5. Michigan
    6. Florida
    7. Washington  47 sites
    8. Texas
    9. Illinois
    10. Wisconsin

    -65 million Americans are within 4 miles of a Superfund site
    http://yosemite.epa.gov/r10/cleanup.nsf/webpage/Washington+Cleanup+Sites

RICO (Racketeer Influenced & Corrupt Organizations Act)
18 USC § 1961-1968 (1970)
    -Organized Crime Act
    -to go after the laundry and fencing operations
    -claim there is a pattern or conspiracy to commit illegal actions
        -rampant abuse with this, after 1986 if it was not part of organized crime thrown out
    -multi state cases to show pattern and conspiracy
   
There can be many cross-overs between all these areas of complex litigation

Liability
-holds you responsible in two theories:

1. Vicarious - policy not fault
    -held responsible through your relationship with the person that did the harm
    -respondeat superior: responsible for the torts of employees
    -course & scope
    -frolic & detour

2. Direct
    -through your fault someone was injured
    1. Solo
        -you alone caused it
    2. Joint or Concurrent
        -simultaneously cause the harm
    3. Derivative
        -you enabled something to happen

Joint & Several
-multiple people are responsible for a harm
-each is responsible for the amount of harm caused

Several:
    -they split the cost of the judgment by percentage of harm

Joint:
    -held to any degree of harm, the plaintiffs can collect 100% from you
-limited joint liability in most states
-there are some that still have pure joint are: Washington DC, Alabama, Maine, Maryland, Massachusetts, North Carolina, Rhode Island, Virginia

-Georgia and Wyoming abolished it
-Florida was abolishing