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Modernizing Our Court System (but Don’t Attend Trial from Your Car) with Hon. Scott Schlegel

Modernizing Our Court System

Photo by Ernest Ojeh via Unsplash

The judicial system is overburdened for a number of reasons, and greater efficiency is a must if court systems are to achieve their important objectives.

Technology and openness to all that it offers is a key solution, something that was tried, tested and proven during the Covid pandemic which closed courthouses and law offices around the nation. Along with technology, improvements can be made by reexamining their orthodoxies about how things should be done based on decades of “that’s how we’ve always done it.”

This is a matter of importance to judges, lawyers, plaintiffs, defendants, and numerous others whose lives are impacted directly or indirectly when either the civil or criminal justice systems are inefficient, cumbersome, costly, confusing, slow, and even inaccessible. If only we had an example of at least one judge who is trying to do something about it. But wait …

Listen to my interview with the Hon. Scott Schlegelwho presides over criminal civil and domestic matters in Louisiana’s 24th Judicial District Court in Jefferson Parish. Judge Schlegel was elected to the bench in 2013, and quickly earned a reputation as a modern judge using technology to bring his court into the digital age, even before the pandemic forced the change on other jurists. He partnered with tech companies to develop efficiency tools like chat bots and online forms software. He launched courtonline.us and onlinejudge.us to consolidate his processes for the public. Judge Schlegel has received numerous awards and accolades, like the National Center for State Courts’ 26th Annual William H. Rehnquist Award for Judicial Excellence. He was the American Bar Association’s 2021 Legal Rebel. And he received the Fastcase 50 Award for his innovative approaches to the administration of justice. Prior to becoming a judge, he was a prosecutor and litigator. Judge Schlegel graduated with honors from Loyola University New Orleans College of Law.

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

Hon. Scott SchlegelLouisiana State Judge, Jefferson Parish

Judge Schlegel was elected to the bench in 2013, and quickly earned a reputation as a modern judge using technology to bring his court into the digital age, even before the pandemic forced the change on other jurists. He partnered with tech companies to develop efficiency tools like chat bots and online forms software.

He launched courtonline.us and onlinejudge.us to consolidate his processes for the public. Judge Schlegel has received numerous awards and accolades, like the National Center for State Courts’ 26th Annual William H. Rehnquist Award for Judicial Excellence. He was the American Bar Association’s 2021 Legal Rebel. And he received the Fastcase 50 Award for his innovative approaches to the administration of justice. Prior to becoming a judge, he was a prosecutor and litigator. Judge Schlegel graduated with honors from Loyola University New Orleans College of Law.

February 15, 2023
Class Certification Evidence: Standards of Admissibility and Probative Value Among the Circuits
Class Certification Evidence

What Are the Standards of Admissibility and Probative Value Among the Circuits?

Numerous splits exist among the circuits on two key certification issues: What is required to prove the elements for class certification and whether plaintiff’s certification evidence must be admissible. Further, courts apply different admissibility standards to fact evidence than to expert evidence. Certain courts have issued clear guidance on these important issues, while others have remained circumspect, sending mixed signals. This is particularly vexing for defendants, who may be sued in more than one district or circuit. What is sufficient for class certification in one jurisdiction may be inadequate in another. With standards unsettled, counsel must anticipate and preserve the right to revisit class certification by preserving all objections and the factual record. Listen as the panel of class action attorneys discusses the standards of admissibility of evidence at certification and best strategies for leveraging ambiguities.

Questions Addressed
- How can defense counsel preserve objections to admissibility?
- How can counsel leverage the law of other circuits in jurisdictions with no controlling precedent?
- What does how a court assesses evidence imply about its view on admissibility standards?
Webinar Outline
1. Fact evidence
  1. Need not be admissible
  2. Must be admissible
  3. Ambiguous
2. Expert evidence
  1. Full Daubert analysis
  2. Limited Daubert analysis
3. Strategies for managing and leveraging the uncertainty
On Demand CLE Webinar

A Strafford production specially selected for HB audiences.

Learn Strategies for
Opposing or Narrowing Class Certification
and Preserving Objections

This Strafford production has been specially selected for HB audiences.

Speakers

Kevin Daly
Counsel
Robinson & Cole

Alexander Madrid
Partner
McGuire Woods

Michael Ruttinger
Partner
Tucker Ellis

Robert Sparkes, III
Partner
K&L Gates

This Strafford production has been specially selected for HB audiences.
February 15, 2023
Discovery Strategies in Wage and Hour Class and Collective Actions Before and After Certification of Putative Class
Discovery Strategies in Wage and Hour Class and Collective Actions Before and After Certification of Putative Class

Strategically Limiting Discovery, Resolving Discovery Disputes

Wage and hour class and collective actions are complex and discovery intensive. Discovery requests are often burdensome, seeking information concerning a broad swath of workers. This causes the discovery process to sometimes linger for years and creates a significant expense for employers.In recent years, courts have emphasized that parties must rein in extensive and expensive discovery requests. Employment litigators are increasingly raising proportionality arguments as a basis for objecting to opposing counsel’s discovery requests.

Drafters are responding by tailoring requests to anticipate such challenges. Drafting discovery requests that are likely to withstand burden and proportionality challenges and objections to broad discovery requests is critical for litigators representing employers in wage and hour class and collective actions. Employment litigators must develop and implement effective discovery strategies both before and, as applicable, after certification of the putative class. These strategies often must anticipate the possibility of a future summary judgment motion, further certification practice, and trial on the merits.

Listen as our authoritative panel of employment law attorneys explains effective strategies for pursuing or objecting to discovery requests in wage and hour collective and class actions and resolving discovery disputes that arise during litigation.

Questions Addressed:
- What are the most common discovery challenges counsel face when litigating wage and hour collective and class actions–from initiation through resolution of the case?
- What strategies have been effective in wage and hour collective and class actions for obtaining essential information with the least expense?
- What is the scope of discoverable evidence before and after certification of the putative class, and how can you limit or best manage discovery?
- When drafting discovery requests in wage and hour class and collective actions, what should employment counsel consider to ensure that the requests align with the proportionality standard?
Interested in More CLE OnDemand? Click Here.

Interested in this program? Click here to send us a note.

On Demand CLE Webinar

Interested in this program? Click here to send us a note.

Speakers

Gerald Maatman Jr.
Partner
Duane Morris
GMaatman@duanemorris.com

Noel P. Tripp
Principal
Jackson Lewis
Noel.Tripp@jacksonlewis.com

Outline
1. Pursuing or objecting to discovery requests in wage and hour collective and class actions
  1. Before conditional collective or class certification
  2. After conditional certification of a collective action
  3. After class certification
2. Discovery considerations for summary judgment
3. Discovery considerations for trial
4. Resolving discovery disputes
Explore more from Duane Morris LLP!

Journal (JEIL) Artificial Intelligence Litigation Risks in the Employment Discrimination Context. By Gerald Maatman Jr., Alex Karasik, and George Schaller

CLE OnDemand Webinar: AI Nuts & Bolts Survival Guide: Artificial Intelligence – Discrimination in Employment Context. Gerald Maatman Jr., Alex Karasik, and George Schaller

CLE OnDemand Webinar: Discovery Strategies in Wage and Hour Class and Collective Actions Before and After Certification of Putative Class. Gerald Maatman Jr., Noel P. Tripp

CLE OnDemand Webinar: Rule 23(c)(4) Issue Certification: Reconciling the Conflict With the Predominance Requirement. Gerald Maatman Jr., Timothy Congrove, Jennifer Mesko and James Muehlberger
February 15, 2023
Greatly Exaggerated: The Impact of Bankruptcy on Mass Torts with Jennifer Hoekstra

When large companies face massive mass tort litigation, one way they can survive is to file for bankruptcy protection and reorganize.

3M recently put its Aearo Technologies subsidiary into bankruptcy in the face of more than 230,000 claims that’s its defective earplugs caused hearing loss. When it came to filing bankruptcy 3M said Aearo was solely responsible for the product. But for several years of litigation 3M argued that it, as the parent, was solely responsible, not its various subsidiaries. That was a strategy that was beneficial to the company in multidistrict litigation.

Why did 3M suddenly change course? What impact does bankruptcy have on claimants? Could corporations use bankruptcy law to neuter mass tort litigation for all eternity? And how did the strategy sit with the federal magistrate judge overseeing the multidistrict litigation?

Joining me to discuss this incredibly complex litigation is Jennifer M. Hoekstra, a partner with Aylstock Witkin Kreis & Overholtz. Jennifer has been involved in all varieties of complex litigation since 2007, focusing on mass torts, drug and device litigation, and others. She has a J.D. from Tulane, which she earned while also completing a certificate in Environmental Law. She has actively served as trial counsel or an integral member of the trial team in several of the 3M Earplug trials securing nearly $300 million in compensatory damages for military veterans. Jennifer shared her insights on the intersection of complex mass torts and bankruptcy, an intersection that wasn’t originally on her roadmap.

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

P.S. During the podcast I mentioned an article and wanted to share the link. It’s called “Bankruptcy Grifters” by Lindsey D. Simon. It was published in the Yale Law Journal.

Jennifer Hoekstra

Jennifer M. Hoekstra is a partner with Aylstock, Witkin, Kreis & Overholtz, PLLC. A native of Saint Paul, Minnesota, Ms. Hoekstra boasts an impressive academic and professional record, including graduation from two of the nation’s top schools. She earned her Bachelor of Arts in Environmental Science from Columbia College, Columbia University in the City of New York. She relocated to Louisiana to attend Tulane Law School, where she earned her J.D. while also completing a certificate in Environmental Law. During her law school career, she spent a semester studying at the University of Wisconsin School of Law and visited on their International Law Journal as a Junior Member during her Hurricane Katrina evacuation semester.

Ms. Hoekstra has been involved in complex litigation cases of all forms since 2007. Ms. Hoekstra has earned a solid reputation as a skilled writer and researcher, and plays an integral role in several complex litigation cases, practicing in the areas of Pharmaceutical Mass Torts, Defective Device Mass Torts, and other complex litigation. She is currently a member of the Proton-Pump Inhibitors Plaintiff Executive Committee and the 3M Earplugs MDL Discovery and ESI Committee.

Jennifer was central to the successful outcome in bellwether trials in the Genetically Modified Rice, Actos and DePuy Pinnacle Hip MDLs with more than $11 Billion in trial verdicts resulting from those cases. She has actively served as trial counsel or an integral member of the trial team in several of the 3M Earplug trials securing nearly $300 Million in compensatory damages for military veterans.

She is licensed to practice before all Louisiana state and federal courts and the U.S. District Courts for the Northern District of Texas and Eastern District of Missouri as well as the 5th and 8th Circuit Courts. She is a member of the American Bar Association, the Louisiana Bar Association, the Acadiana Federal Bar Association, the Alexandria Louisiana Bar Association and the American Association for Justice. She is a member of Women En Mass, founding member of the board for the Society Women Trial Lawyers and was also a member of the inaugural 2018 Board of Directors for Emerge Louisiana.

January 12, 2023
Under Pressure: Courts and Lawyers Trying to Deal With It with Diana Manning

The pressure on trial lawyers, judges, plaintiffs, defendants, and court systems is only increasing.

The backlog of cases in New Jersey, for example, nearly quadrupled between February 2020 and 2021, the first year of the pandemic, according to NJ Spotlight News (NJSN). The state is also facing a historic shortage of jurists, NJSN reported, “leading to overworked judges, huge case backlogs and nearly 7,000 defendants in jail without bail, some 500 of them for more than two years despite a law that essentially requires a trial within two years for anyone detained.”

As reported by NJSN, one court official told the state Assembly Budget Committee about the impact of the pandemic on the court system: “Buildings were closed to most in-person trials for more than a year, although other proceedings continued virtually. The business closures and high unemployment led to a housing crisis that resulted in more than 46,000 pending cases that involve landlord-tenant issues . . . . But with all courts open and staff back to work in person, it is impossible to eliminate the backlog of cases with so many open judge seats.” The problem is attributed to the state Senate, where the process is mired, even though the governor is making appointments.

According to the National Counsel for State Courts, backlogs at one third of U.S. courts increased by 5%. It would have been worse had courts not held virtual hearings.

Using the Court Statistic Project database, the numbers reveal in stark terms the impact the pandemic had in the year it came to America. Dispositions dropped from 43M in 2019 to 28M in 2020. Bench trials fell from 3M in 2019 to under 2M in 2020. Jury trials plummeted from 49K in 2019 to less than 19K in 2020.

The Washington Post reported that the Pennsylvania Supreme Court declared a judicial emergency and extended deadlines. Virginia’s Supreme Court suspended nonessential proceedings. The Iowa Supreme Court pushed back criminal trials and the Alabama’s Supreme Court suspended in-person proceedings. New Jersey Supreme Court Chief Justice Stuart Rabner warned that the judicial shortage “comes with a price.”

Listen to my interview with Diana C. Manning, Managing Principal, Bressler, Amery & Ross, P.C., for the fallout from the judicial shortage and swelling case backlogs, and what needs to be done to dig out. An experienced and award winning complex commercial litigator, Diana is co-chair of the firm’s business and commercial litigation practice group. She received her J.D. from Rutgers University School of Law.

This episode is the first of two about challenges to the court system and what can be done to address them. An upcoming episode will feature an Alabama state judge who is leading the way in the use of technology to modernize the courts.

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

Diana Manning

Diana Manning is Managing Principal at Bressler, Amery & Ross in New Jersey. Diana has more than two decades of experience in complex commercial litigation at both the trial and appellate levels. She is Co-Chair of the firm’s Business and Commercial Litigation practice group, and spearheads the firm’s Appellate practice team. Diana has developed a successful track record of trial verdicts and settlements, especially in complex matters. She also has a reputation as a strategic, thoughtful, and fearless advocate for all of her clients.

A distinguished trial lawyer, Diana is Certified by the Supreme Court of New Jersey as a Civil Trial Attorney. She is also an accomplished appellate lawyer who has participated in six matters before the New Jersey Supreme Court, including arguing four times. Diana is an avid presenter and author on business litigation, legal ethics, and professional liability. She is the author of the New Jersey Chapter of The Law of Lawyer’s Liability: Fifty-State Survey of Legal Malpractice, ABA/First Chair Press, which provides an overview of the laws governing attorney malpractice in each state.

To date, Diana’s distinguished career has brought her offices and honors from many professional and legal industry organizations. Diana served on the District XA Ethics Committee for 10 years and was appointed Chair by the New Jersey Supreme Court from 2017-2019. She is also President of the New Jersey Women Lawyers Association, and is a Past President of Trial Attorneys of New Jersey, the Morris County Bar Association, and the Morris County Bar Foundation.

January 6, 2023
Policy Derailed: Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track by Jonathan Rubin

The Author

Jonathan RubinMoginRubin LLP

Jonathan Rubin (jrubin@moginrubin.com) is Co-Founder and Partner of MoginRubin LLP, a boutique antitrust, mergers and acquisitions, and class action law firm. Since 2001, he has focused his legal practice exclusively on antitrust and competition law and policy. As a litigator he has led trial teams in major antitrust cases in courts throughout the country.

Rubin is a member of the Editorial Board of Advisors for the Journal of Emerging
Issues in Litigation.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

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.

Policy Derailed:
Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track?

“The failure to appropriately adjust the patent system to accommodate the competitive circumstances created when patents are incorporated into standards undermines the purposes of the standard-setting enterprise and impairs the utility and proliferation of standardized technologies. Without a course correction among the judiciary, the United States risks finding itself as a less desirable jurisdiction for pro-growth and pro-competitive patenting and standard-setting activities.”

Abstract: A consensus at the intersection of patent and anti-trust law was achieved after a series of decisions finding that in some circumstances owners of standard essential patents (SEPs) have an antitrust duty to deal with willing licensees. Beginning in 2017, however, the Department of Justice derailed U.S. policy by undermining the role and usefulness of antitrust for policing abuses of the standard setting process. This article traces the emergence of the consensus, its abrogation by the DOJ, and the resulting effects and prospects for the future.

Download the article now!

Explore more from MoginRubin LLP!

Blog: Emboldened by New Resources and Expanded Authority, Feds Continue 10-Year Look Back at Chinese Investment. By Dan Mogin, Jonathan Rubin, Jennifer Oliver, and Timothy LaComb. List

OnDemand CLE Webinar: The Antitrust Case Against Google. Dan Mogin, Jonathan Rubin, Jennifer Oliver, Timothy LaComb, John Newman, Dr. Alan Grant

Blog: FTC’s Case Against Facebook Will Test the Flexibility of U.S. Antitrust Law.Authors: Jonathan Rubin and Jennifer Oliver, MoginRubin LLP

Blog: Full Ninth Circuit Removes Unwarranted Hurdles to Class Certification.

Journal: Policy Derailed: Can U.S. Antitrust Policy Toward Standard Essential Patents Get Back on Track by Jonathan Rubin

Webinar: Class Certification After Olean v. Bumble Bee with Jonathan Rubin, James Bogan lll, Jonathan Cohn, Bradley Hamburger.

Journal: FTC v. Amazon: Market Definitions and Section 5 of the FTC Act

Podcast: Algorithmic Software Facilitated Price Fixing with Jonathan Rubin

Plus, additional insights from the MoginRubin Blog.

January 4, 2023
Lawyers for Good with Tara Trask and Jason Flom

If you’re feeling bad about being a lawyer, or just maybe tingling with the holiday spirit of giving back, this episode is for you. Listen to three professionals (well, maybe two “professionals”) who deeply admire for the legal profession, the important role attorneys play in society, and all the potential they have to make the world a better place.

When there is strife, there is a supporting organization, and with them are lawyers. Wrongful convictions. Voting rights. Environmental protection. The rights of women, people of color, workers, LGBTQ, immigrants, asylum seekers. Lawyers are in a unique position to do something about all of this. And they do. And we hope more will.

Join me as I interview nationally acclaimed trial consultant Tara Trask and music industry star-maker Jason Flom.

Tara Trask is the President of Trask Consulting, a boutique litigation strategy, jury research and trial consulting firm. Tara focuses complex commercial litigation, from intellectual property to antitrust, from products liability to insurance, and oil and gas. She has extensive experience assisting institutions and individuals in matters involving regulatory enforcement and white-collar defense. Tara has been involved in more 450 jury trials.

Music industry executive Jason Flom is CEO of Lava Records, Lava Music Publishing, and Lava Media, LLC. He is former CEO at Atlantic Records, Virgin Records and Capitol Music Group. Jason is personally responsible for launching acts such as Katy Perry and Greta Van Fleet, and discovering and developing the likes of Matchbox 20, The Corrs, Tory Amos, Jewel, and Stone Temple Pilots. The New Yorker described Jason as “one of the most successful record men of the past 20 years. He’s also committed to doing good. Through his Lava for Good company, Jason hosts the hit podcast Wrongful Conviction, now in its ninth season, which features interviews with people who have spent decades in prison for crimes they did not commit. Within two weeks of its release, the podcast shot to #7 on the iTunes charts and has raised more than $1 million to benefit the Innocence Project. Lava for Good’s Bone Valley, which tells the tragic story of Leo Schofield, who was sentenced to life for the murder of his wife, Michelle, is also one of the top podcasts on iTunes (#19 as of this writing), and received a highly regarded “four thumbs up” from the Crime Writers On podcast. Jason’s father, the fourth named partner in what is now known as Skadden, was dubbed one of the “Lawyers of the Century by The American Lawyer in 1999.

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

Loved hearing what Tara said on this subject matter?

Explore more of subject content with Tara!

Podcast: Jury Selection in the Age of Conspiracy Theories and Distrust with Tara Trask

Podcast: Intellectual Property Trial Team Diversity with Tara Trask

Tara TraskTrask Consulting

Tara Trask is the President of Trask Consulting, a boutique litigation strategy, jury research and trial consulting firm. Tara focuses complex commercial litigation, from intellectual property to antitrust, from products liability to insurance, and oil and gas. She has extensive experience assisting institutions and individuals in matters involving regulatory enforcement and white-collar defense. Tara has been involved in more 450 jury trials.

Jason Flom Lava Records

Music industry executive Jason Flom is CEO of Lava Records, Lava Music Publishing, and Lava Media, LLC. He is former CEO at Atlantic Records, Virgin Records and Capitol Music Group. Jason is personally responsible for launching acts such as Katy Perry and Greta Van Fleet, and discovering and developing the likes of Matchbox 20, The Corrs, Tory Amos, Jewel, and Stone Temple Pilots. The New Yorker described Jason as “one of the most successful record men of the past 20 years. He’s also committed to doing good.

Through his Lava for Good company, Jason hosts the hit podcast Wrongful Conviction, now in its ninth season, which features interviews with people who have spent decades in prison for crimes they did not commit. Within two weeks of its release, the podcast shot to #7 on the iTunes charts and has raised more than $1 million to benefit the Innocence Project. Lava for Good’s Bone Valley, which tells the tragic story of Leo Schofield, who was sentenced to life for the murder of his wife, Michelle, is also one of the top podcasts on iTunes (#19 as of this writing), and received a highly regarded “four thumbs up” from the Crime Writers On podcast. Jason’s father, the fourth named partner in what is now known as Skadden, was dubbed one of the “Lawyers of the Century by The American Lawyer in 1999.

Tags

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December 22, 2022
PFAS Litigation—A Historical Overview and the Growing Trend in Consumer Fraud Lawsuits: What Are the Legal and Business Risks to Companies by John Gardella

The Author

John GardellaCMBG3

John P. Gardella (jgardella@cmbg3.com) is a shareholder and Chief Services Officer at CMBG3 Law, where he also chairs the firm’s PFAS, Environmental, Risk Management and Consulting and ESG practice groups. John is the latest addition to the Editorial Board of Directors for the Journal on Emerging Issues in Litigation.

Emerging Litigation PodcastProduced by HB Litigation and Law Street Media

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.

PFAS Litigation

A Historical Overview and the Growing Trend in Consumer Fraud Lawsuits

“It is of the utmost importance that businesses along the whole supply chain in the consumer goods sector evaluate their PFAS risk and fully understand the legal arguments that plaintiffs could make against companies in litigation.”

Abstract: Per- and polyfluoroalkyl substances (PFAS) are a class of over 12,000 man-made compounds. 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 also bringing suits against companies for claiming their products and the making of their products are safe and green. This article explains why PFAS are of concern to citizens, media, and legislators; what legal risks they pose to corporations; and the recent surge in consumer fraud litigation. The article examines the legal theories at issue in the PFAS consumer fraud cases, as well as the potential damages that can stem from the cases to corporations.

Questions addressed include:

What do state and federal regulations say about PFAS in drinking water?

If your company doesn’t use the two original types of PFAS, are you at less risk of litigation?

Which industries currently face the most risk of PFAS-related consumer fraud cases?

Are plaintiffs securing significant verdicts in personal injury litigation?

Download the article now!

November 30, 2022
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 sharpen their predictive capabilities, but it can help them build, defend, and resolve cases.

For insights on the past, present and future of legal guidance and analysis, listen to my interview with Ed Walters, co-founder and CEO of our partners on this podcast, Fastcase, the legal research and software company whose divisions include Fastcase Full Court Press (publishing), Law Street Media (legal news), Docket Alarm (docket tools), and NextChapter (software). An entrepreneur, writer and professor, Ed brings his experience advising global Fortune 500 tech and pharma companies and sports leagues, serving in the White House on media affairs and speechwriting, and contributing to several major newspapers and journals. Ed is an adjunct law professor at Georgetown and Cornell universities. He is also a self-described “weather nerd,” which explains my tortured introduction.

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

Data-Driven Legal Guidance

Ed WaltersFastcase

Ed Walters is the CEO and co-founder of Fastcase, an online legal research software company based in Washington, D.C. Under Professor Walters’s leadership, Fastcase has grown to one of the world’s largest legal publishers, serving more than 1.1 million subscribers from around the world.

Before founding Fastcase, Professor Walters worked at Covington & Burling, in Washington D.C. and Brussels, where he advised Microsoft, Merck, SmithKline, the Business Software Alliance, the National Football League, and the National Hockey League. His practice focused on corporate advisory work for software companies and sports leagues, and intellectual property litigation.

November 26, 2022
Rule 23(c)(4) Issue Certification: Reconciling the Conflict With the Predominance Requirement
Rule 23(c)(4) Issue Certification:

Reconciling the Conflict with the 23(b)(3) Predominance Requirement

Proposed class actions seeking monetary damages are often difficult to certify because common issues do not predominate over individualized issues as required by Rule 23(b)(3). Rule 23(c)(4) provides that “[w]hen appropriate, an action may be brought or maintained as a class action with respect to particular issues.”Although Rule 23(c)(4) has been part of the rule since the landmark 1966 amendments, it was often overlooked until the Supreme Court’s decision in Wal-Mart v. Dukes. Plaintiffs now routinely seek limited issue certification for purported common issues, such as liability, arguing that questions of injury, reliance, or causation should be left for individual cases. When approved, this approach increases defendants’ exposure by permitting certification in some cases that would otherwise fail the Rule 23(b)(3) standards.The federal circuits are now in a three-way split on how issue certification should be treated under Rule 23(b)(3)’s predominance requirement. While the Fifth Circuit has taken the textual view in Castano v. American Tobacco Co. that permits issue certification only if the class first qualifies under Rule 23(b)(3), the Ninth, Sixth, Second, and Seventh Circuits have adopted the opposite view that Rule 23(c)(4) certification does not require predominance. The Third Circuit has clarified and heightened the test in Russell v. Educ. Comm’n for Foreign Med. Graduates, 20-2128 (3d Cir. Sept. 24, 2021), but offers both sides plenty to consider. The remaining circuits are uncommitted, leaving the district courts to address the matter.Listen as our panel of experienced class action litigators analyzes the varying circuit court positions on Rule 23(c)(4) issue classes and the implications of practitioners’ decisions when pursuing or opposing class certification.

Outline
1. The emergence of issue classes under Rule 23(c)(4)
  1. What is an issue class?
  2. How are they being strategically used?
  3. Where are the grey areas?
2. Key court decisions on issue class certification
3. Textual and historical analysis of Rule 23(c)(4)
4. Strategies for defending the trial of “issue” classes
Be sure to check out more of Duane Morris LLP contributions!

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CLE OnDemand Webinar: Rule 23(c)(4) Issue Certification: Reconciling the Conflict With the Predominance Requirement. Gerald Maatman Jr., Timothy Congrove, Jennifer Mesko and James Muehlberger

Details

Recorded 10/6/2022

Speakers

Timothy E. Congrove
Partner
Shook, Hardy & Bacon

Gerald L. Maatman Jr.
Partner
Duane Morris

Jennifer L. Mesko
Partner
Tucker Ellis

James P. Muehlberger
Co-Chair, Food, Beverages & Agribusiness Practice Group
Shook, Hardy & Bacon

Benefits

The panel will review these and other key issues:
- What is the tension between the requirements of Rule 23(c)(4) and Rule 23 (b)(3), and how are courts reconciling the conflict?
- What impact does the rise in issue class certifications have on the trial and settlement of class claims?
- How class action practitioners leverage the various circuit court opinions on Rule 23(c)(4) issue classes at the certification stage
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November 16, 2022