This month, we have an abundance of "other strategists." At the beginning of the month, I attended the 5th Annual Conference on the Globalization of Class Actions at the Hague. The conference was extremely informative, even though it focused more on mass litigation than class actions specifically. Fellow blogger (and extremely nice guy in-person) Paul Karlsgodt has been putting up excellent, comprehensive notes from the various panels, so I'm not going to try to duplicate his efforts. Instead, I'm going to just leave you with one idea from each panel; usually the one that got me thinking the most.
"Mass Media & Mass Litigation"
Primary insight: Media moves much faster than litigation, orders of magnitude faster. As a result, from the media's perspective, any account of litigation will be littered with huge, close-to-unfillable gaps. The plaintiffs' largest challenge is to fill enough of those gaps to keep the momentum of coverage going. The defendant's largest challenge is to make sure those gaps are not filled with speculation that hurts it. Since, with the rise of social media, "everyone is a journalist now," coverage is even less predictable than it used to be.
"Who’s Paying? New Developments in Funding"
Primary insight: Third-party funding is becoming more common in Europe, and it can be profitable. But it's not necessarily what plaintiffs want. (They need the money, but they don't like ceding control of the litigation to the funders.) Two interesting phenomena are resulting from the rise of third-party funding in the countries that allow it. First, funders are engaging in "book-building," pulling together multiple similar claims by buying them from the original claimants. And book-building may be just another form of aggregation. (This isn't unheard of in the US; insurance companies have been trying "mass subrogation" litigation for some time.) Second, despite defendants' concerns that third-party funding just enables more runaway litigation, it appears that the funders may (and I stress may) provide a brake on entrepreneurial lawyers. (Professor Elizabeth Chamblee Burch has an interesting and well-timed paper out on this same subject.)
"Managing the Mass"
Primary insight: Judges know what needs to be done to manage large cases, but often lack the tools to do so. Technology is helping (ECF, for example, takes a lot of administrative work off judges), but it may not be helping enough. As a result, judges really stress cooperation from parties, and they are very cautious about having the parties run the litigation rather than themselves. Despite conventional wisdom, many judges no longer see their role as encouraging settlement; the costs of litigation will do that on their own. Instead, they see their role as problem-solvers. (All of this, by the way, applies far less to European civil-law jurisdictions than it does to England and America.)
"Giving Away Money: Calculating Damages & Allocating Compensation in Mass Cases"
Primary insight: Compensation panels face a real challenge in balancing logistics and legitimacy. (Or, as Feinberg put it, empathy and efficiency.) And, to some extent, they will fail. "Our job is to accomplish rough justice," says McGovern. Volume drives structure: the more claims you have, the more streamlining you need. The more compensation experts can listen to the harmed, the more legitimate the process will seem to each of them.
"Who Has Jurisdiction in a Global Market?"
Primary insight: Non-American investors continue to prefer US courts. The primary challenge that non-Americans see is that jurisdiction is still subject to heavy gamesmanship, by plaintiffs' lawyers as well as by defendants. While most practitioners would like to see some clear inter-jurisdictional rules, they concede that won't be possible without more agreement among jurisdictions in the first place, and without less gamesmanship from the parties. (Also, many outside the United States are really sure what Morrison held.)
"Paths to Mass Justice"
Primary insight: There really wasn't one. Rather than debating a single issue, this was more an opportunity for many of the panelists to engage in some amateur futurology. So, instead, here are a few visions of the future of mass litigation:
- Private enforcement of mass torts will continue, but may come from businesses as well as entrepreneurial lawyers. (Hausfeld)
- The scope of lawsuits will continue to grow, but innovations in the rules will lag behind adaptations in practice. (Hensler)
- The combination of millennial impatience (the next generation does not brook delays in compensation) and advanced information technology will lead to a form of "Facebook justice." (Hammesfahr)
- The combination of growing scope of lawsuits, growing social conscience about widespread harms (like global warming) and growing flexibility in procedural rules will lead to mass litigation being the investment vehicle of choice. (Murray)
- The "death of the class action" is overstated, but the "Golden Age of the private attorney-general" is over. (Girard)
- There appears to be less normative behavior in mass litigation, and more competition among jurisdictions (like England and the Netherlands). (Van Maanen.)