Judicial Hellholes: How to Survive (and Succeed) as a Corporate Defendant NEW JERSEY CORPORATE COUNSEL ASSOCIATION January 29, 2013

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1 NEW JERSEY CORPORATE COUNSEL ASSOCIATION January 29, 2013 Philip Sellinger, GT New Jersey; Managing Shareholder; Co-Chair, National Class Action Practice Mary-Olga Lovett, GT Houston; Co-Managing Shareholder; Shareholder Litigation/IP Lori Cohen, GT Atlanta; Chair, Pharmaceutical & Device Litigation Group, Trial Practice Group Lynn Feldman, Executive Vice President and General Counsel, Wyndham Hotel Group

2 An International Network of More than 1,750 Attorneys & Governmental Affairs Professionals 2 2

3 Agenda Where are the Judicial Hellholes and how do They Affect the Outcome of Litigation? Strategy: How and When to Freeze Over the Hellhole Firm Information/Diversity 3

4 I. Where are the Judicial Hellholes and How Do They Affect the Outcome of Litigation?

5 What Makes a Judicial Hellhole? Judges Inequitable approaches Plaintiffs' Counsel Well-organized, aggressive Legislature Tort Reform scope or not Attorneys General Joining forces with Plaintiffs' counsel Plaintiffs, Population, Potential Jurors The people and who they are 5

6 Where are the Judicial Hellholes and How they Affect the Outcome of Litigation What do plaintiffs lawyers call the Judicial Hellholes? The magic jurisdictions How is the Judicial Hellhole defined? Regions where plaintiffs specifically seek venue and jurisdiction of their cases because judges systematically apply laws and court procedures in an unfair and unbalanced manner, generally against defendants in civil lawsuits. As a result, plaintiffs expect either an excessive verdict or an excessive settlement Is there Equal Justice Under the Law - as the motto etched on the facade of Supreme Court of the United States professes? Most jurists honor their commitment to serve as unbiased arbiters, always in pursuit of truth and justice. However, a different standard is applied in the Judicial Hellholes. Often, with the best intentions, Hellhole jurists make rulings for the sake of expediency, efficiency, or based on personal views and bias - frequently depriving a party of its right to a proper defense 6

7 TRICKS OF THE TRADE Judges in Judicial Hellholes have considerable influence over the cases before them and affect every aspect of the judicial process: 1. Pretrial rulings 2. Prejudicial decisions during trial 3. Rulings that unreasonably expand the scope of liability 4. Judicial integrity impaired by showing favoritism 7

8 1. Pretrial Rulings Forum Shopping Judicial Hellholes are known for being plaintiff-friendly, and thus attract cases with little or no connection to the jurisdiction. Judges in these jurisdictions often refuse to control plaintiffs counsel. Novel Legal Theories Judges allow suits unsupported by existing law to proceed. Instead of dismissing these suits, Judicial Hellhole judges adopt new and retroactive legal theories, which often have unfavorable national ramifications. Discovery/Abuses Judges allow unnecessarily broad, invasive and expansive discovery requests that increase the burden and expense of litigation on defendants. They also apply discovery rules in an unbalanced manner, denying defendants the fundamental right to discover critical facts about plaintiffs cases. 8

9 1. Pretrial Rulings, cont d Consolidation and Joinder Judges liberally join claims into mass actions that do not have common facts and circumstances. In one notorious example, a West Virginia court consolidated more than 8,000 claims and 250 defendants in a single trial. In these situations, individual parties are deprived of their rights to have their cases fully and fairly heard by a jury. Improper Class Certification Judges certify classes without a common set of facts or law. These classes confuse juries and place defendants in a position that they cannot defend. In states where class certification cannot be appealed until after trial, improper class certification can force a company into a large, unfair settlement. Unfair Case Scheduling Judges schedule cases in ways that are unfair or overly burdensome. For example, judges in Judicial Hellholes have scheduled numerous cases against a defendant to start on the same day or have given defendants short notice before a trial begins. 9

10 2. Prejudicial Decisions During Trial Uneven Application of Evidentiary Rules Judges allow plaintiffs greater flexibility in the introduction of evidence at trial, while rejecting evidence that might favor defendants. Junk Science Judges fail to ensure that scientific evidence admitted at trial is credible. Rather, they allow a plaintiffs lawyer to introduce expert testimony linking the defendants to alleged injuries, even when the expert has no credibility within the scientific community. Jury Instructions Judges allow improper or slanted jury instructions. This is one of the most controversial, yet underreported, abuses of discretion in Judicial Hellholes. Excessive Damages Judges facilitate and allow excessive punitive damages or pain and suffering awards that are influenced by improper evidentiary rulings, tainted by passion or prejudice, or otherwise unsupported by the evidence. 10

11 3. Unreasonable Expansions Of Liability Private Lawsuits Under Loosely-Worded Consumer Protection Statutes The vague wording of state consumer protection laws has led some judges to allow plaintiffs to maintain actions even if they cannot demonstrate an actual financial loss that resulted from their reliance on allegedly deceptive conduct. Expansion of Damages There also has been a concerted effort to expand the scope of damages, which may hurt society as a whole. Examples of this expansion include hedonic damages in personal injury claims or loss of companionship damages in animal injury cases. 11

12 4. Judicial Integrity Impaired By Showing Favoritism Cozy Relations There is often excessive familiarity among jurists, plaintiffs lawyers and government officials. Alliance Between State Attorneys General and Plaintiffs Lawyers Some state Attorneys General routinely work hand-in-hand with plaintiffs lawyers, hiring them on a contingency fee basis. Such arrangements introduce a profit motive into government law enforcement, casting a shadow over whether government action is taken for public good or private gain. 12

13 SO WHERE ARE THE JUDICIAL HELLHOLES?* 4 New York City and Albany, NY 1 California Illinois Madison County 3 2 West Virginia 5 Baltimore, MD * American Tort Reform Association. Judicial Hellholes 2012/2013 (Washington, D.C.: ATRA, 2012), 13

14 Watch List as Ranked by the American Tort Reform Foundation, Philadelphia, Pennsylvania South Florida Cook County, Illinois New Jersey Nevada Louisiana Dishonorable Mentions for stand-alone abusive practices, unsound court decisions, and unfair legislative actions go to: Missouri Supreme Court Washington Supreme Court 14

15 Points of Light, Courts California Supreme Court: Companies not liable for products of others attached to theirs after sale Illinois Supreme Court: Landowners not liable to trespassers who ignore obvious dangers Kansas Supreme Court: Rejects attempt to nullify limit on pain & suffering damages Mississippi Supreme Court: Reins in Attorney General s alliance with plaintiffs lawyers New Jersey Superior Court (Atlantic County): Brand-name manufacturers not liable for injuries caused by generics Pennsylvania Supreme Court: Rejects any exposure lawsuits Texas Supreme Court: Adopts learned intermediary doctrine 15

16 Points of Light, Legislatures Legislatures which enacted positive reforms: Alabama Arizona Iowa Louisiana Mississippi Missouri Ohio Rhode Island Tennessee Wisconsin 16

17 Judicial Hellhole #1 California 1 California remains friendly to consumer lawsuits, class actions and high awards new target is Big Food Many lawsuits stem from minor, technical violations of Americans with Disabilities access standards California Federal and state courts in Los Angeles have become a magnet for unintended vehicle acceleration cases 17

18 Judicial Hellhole #1 California 1 Asbestos lawsuits still overwhelming dockets in Oakland, Los Angeles and San Francisco, and cuts are coming to L.A. state courts MICRA, which limits pain & suffering damages in medical malpractice cases, is under attack from the plaintiffs bar California Plaintiffs bar is pushing legislation to overturn Cal. Sup. Ct. ruling precluding phantom damages by limiting medical damages to amounts actually paid 18

19 Judicial Hellhole #1 California 1 Some good news from California California Supreme Court recently dismissed asbestos suits against sellers of pumps and valves to U.S. Navy California voters soundly defeated Proposition 37, which would have provided a right to know whether any food product contains genetically modified ingredients requiring special labeling California 19

20 Judicial Hellhole #2 West Virginia Lack of intermediate appellate review places the defendant at a disadvantage W. VA. R. App. P. 3, 5, 7 Stunningly high verdicts Attorney General criticized for running his office like a private personal injury law firm Unprecedented departures from core principles of tort law such as Consolidations of thousands of claims, particularly in asbestos cases Juries may consider punitive damages evidence before determining liability Cash awards for medicalmonitoring claims without physical injury Rejection of learned intermediary doctrine 2 West Virginia 20

21 Judicial Hellhole #2 West Virginia Positives: Defeat of Attorney General Darrell McGraw, Jr.; new AG Patrick Morrissey has promised reform Recent helpful decisions from West Virginia Supreme Court Consumer protection statute interpreted to require actual reliance, and to be inapplicable to products already regulated by government agencies Upheld cap on noneconomic damages in medical malpractice actions 2 West Virginia 21

22 Judicial Hellhole #3 Illinois Madison County 3 Madison County is known as the poster child for Judicial Hellholes. Earned a national reputation as a magnet court for attracting class actions, especially asbestos lawsuits, where 2011 new filings matched a recent record high Plaintiffs from all over the country continue to come for the lenient venue rules, lax class certification and large awards From 1998 to 2003, class action filings in Madison County grew by 5,000 percent Recently voted among the most unfair county litigation environments by major employers Plaintiff-friendly trials with courts imposing novel theories of liability on corporate defendants Hostility toward corporate defendants Excessive awards and suspect evidentiary rulings Prospects for meaningful intermediate appellate review have dimmed with recent election of Judge Judy Cates from St. Clair County (Madison s Plaintiff-Friendly Neighbor) Madison County 22

23 Judicial Hellhole #3 Illinois - Madison County Positives: When residents clamored for change, the wheels of reform began to turn Implemented more stringent venue rules and dismissed cases with no connection to the jurisdiction, under the direction of local judges elected on campaigns to improve the courts image State high court rulings sent message to curb forum shopping. In Avery v. State Farm Mutual Automobile Insurance Co., for example, the Illinois Supreme Court admonished the lower court s class certification, concluding that [t]he overwhelming majority of circumstances related to the disputed transactions in this case occurred outside of Illinois for the out-ofstate Plaintiffs overturning a $1.2 billion judge-issued verdict 3 Madison County 23

24 Judicial Hellhole #4 New York, New York Albany, New York Despite massive liability payouts costing taxpayers $700 million annually, the New York State Assembly in Albany (dominated by a plaintiffs lawyer Speaker) is not seriously considering tort reform Lawsuits dissuade businesses from setting up shop in the State of New York Three NY attorneys recently charged in $279 million insurance fraud scheme through no-fault filings based on injuries diagnosed at fraudulent medical clinics 4 Albany New York City 24

25 Judicial Hellhole #4 New York, New York Albany, New York Largest payouts are seen in medical malpractice, sidewalk slip and falls, car accident cases and school related cases; many of these are fraudulentlybased NY s Scaffold Law automatically holds contractors and property owners liable for any on-the-job fall, regardless of responsibility Indicative lawsuits Experienced rollerblader allowed to sue for injuries sustained in fall between residential driveway and street, as assumption of risk defense did not apply Exercise equipment manufacturer liable for injuries arising from physical therapist s misuse of legextension machine 4 Albany New York City 25

26 Judicial Hellhole #5 Baltimore, Maryland Abuses in asbestos litigation Annual filings have increased from 400 to 650 from Cozy relationship between plaintiffs lawyer/baltimore Orioles owner Peter Angelos and Judge John Glenn Consolidations of thousands of cases Rocket docket Limited voir dire available to defendants Major push by plaintiffs bar to overturn contributory negligence rule barring recovery where plaintiff is responsible for his/her own injuries; ruling expected from appellate court in early Baltimore, MD 26

27 II. Strategy: How and When to Freeze Over the Hellhole

28 In Many Ways, Litigating In A Judicial Hellhole Is No Different From Any Other Jurisdiction... Proactively and aggressively defending claims in full consultation with the client is still rewarded! Start with the client s business goals when developing case strategy Think about experts early, incorporate them into strategy Seize and keep the initiative in the litigation Recognize the key differences between litigating a potential or actual mass tort claim versus a one-off suit Outside counsel should be creative and should have real trial and appellate experience in the hellhole jurisdiction Find the strengths of your case (i.e., causation) and the weakness of plaintiff s case and FOCUS your efforts there, while understanding the weakness in your case and the strengths in plaintiff s case Have a Public Relations/Crisis Management plan and spokesperson ready 28

29 In Some Important Ways, Litigating In A Judicial Hellhole Is Very Different From Other Jurisdictions Judges: Will have an expansive view of liability and can also be creative in applying that view to keep cases alive Will be very reluctant to grant summary judgment or Daubert/Frye motions Will make you play by the rules, while plaintiffs counsel is free to disregard them If elected officials... Are still human beings, and sometimes can still be reached by your position (or repelled by plaintiffs counsel s antics) 29

30 In Some Important Ways, Litigating In A Judicial Hellhole Is Very Different From Other Jurisdictions Plaintiffs lawyers: Understand the advantages of their jurisdiction and use them fully Will often have cozy relationships with the judge on your matter If successful, may be conscious of (and need to protect) their reputation with the bar and potential plaintiffs Often, they have no more interest in trying a case than you do Keep in mind that you may be setting expectations for future litigation with plaintiffs counsel (or understand what the existing expectations are, particularly those which may hurt the client) 30

31 In Some Important Ways, Litigating In A Judicial Hellhole Is Very Different From Other Jurisdictions. Juries: Will begin a trial suspicious of the defendants and need to be won over; some jurors may even know the plaintiffs lawyers personally Will be asked for, and will render, verdicts with very large damage amounts -- the Robin Hood effect Will seek to punish rather than do justice but can be convinced to punish a plaintiff who has brought frivolous claims and wasted their time 31

32 Strategic Keys To Litigating In A Judicial Hellhole Decide whether the case is a candidate for early settlement discussions (or not) Does the suit involve an important or new product, so that an aggressive defense meets business as well as litigation goals, or will early settlement meet the business objectives better? Do you (the client) or your counsel have a prior relationship and track record with opposing counsel? You must counter the early settlement/big settlement problem Plaintiffs lawyers in these jurisdictions will be used to dealing in high figures, and early in a case settlement they may be hampered by what they don t yet know. Timing is key Maneuver the discussion to a point of maximum leverage -- whatever that means in the context of your case and jurisdiction. Recognize that given the judge, summary judgment may NOT be a leverage point. 32

33 Strategic Keys To Litigating In A Judicial Hellhole TRIAL: Interestingly, some judicial hellholes have good appellate courts. If so, recognize if that will constrain a biased judge, or if this means that plaintiffs counsel knows that, should you lose the trial, you will receive a fair review of all of the trial judge s rulings against your client. For significant cases, serious consideration should be given to a mock trial in or near the jurisdiction. Test driving your themes before the local jury pool is critical. But beware! Word gets around; you must give thought to confidentiality and security, particularly in smaller jurisdictions. Trial counsel and client being from away is not always an obstacle to winning -- but being perceived as different or not relating to the locale is a significant obstacle. 33

34 Strategic Keys To Litigating In A Judicial Hellhole TRIAL, cont d: Defense verdicts are rendered in judicial hellholes often -- they rarely get the press that a big plaintiffs verdict does (e.g. Vioxx victories in Madison County). More than in other jurisdiction, a corporate client s credibility with the jury is absolutely essential. Neither the client nor its counsel can do anything which conforms to the jurors preconceived notions of corporations as unfeeling, profitdriven or duplicitous. However, you should not be reluctant to present evidence of plaintiffs who are clearly forum-shopping, overreaching or frivolous. If the jurors cannot relate to the plaintiff, it does not matter if they are that plaintiff s neighbor. Know your potential jurors. This cannot be emphasized enough. Do your homework; figure out what makes this group unique and understand them as a population (likes/dislikes, type of hobbies; types of businesses; politics). 34

35 Strategic Keys To Litigating In A Judicial Hellhole TRIAL, cont d: Figure out the best way to connect and communicate with YOUR jurors in this Hellhole. Steal the thunder of hometown team; out-local the locals. Consider hiring a local local counsel as needed. For trial, a picture is worth a thousand words. Keep your jurors entertained/interested while educating and advocating; make them enjoy the process and you and your team too. Spend time in the Hellhole Don't avoid it. Be one with the Hellhole (motels, restaurants, stores, gas stations, get the feel for the Hellhole). 35

36 Conclusion When you find yourself in a Hellhole... Know it, believe it, plan accordingly Cannot run and hide Be proactive and strategic about being in the Hellhole What will it take to try to even the playing field...or lessen the impact of the Hellhole? Have the right team tackling the right tasks (Trial, settlement, judicial contact). Know your enemies and be wary, but try to blend and engender good will. 36

37 III. Firm Information/Diversity

38 About Greenberg Traurig National Practice Groups Public Finance Real Estate Tax, Trusts & Estates Business Reorganization & Bankruptcy Litigation Corporate & Securities Labor & Employment Global Trade & Investment Business Immigration & Compliance Intellectual Property & Technology Environmental Entertainment Government & Legislative Health & FDA Business 38

39 More than 1,750 Lawyers & Governmental Affairs Professionals American Indian Law ADA, Accessibility, Building & Life Safety Codes Alternative Dispute Resolution Antitrust & Trade Regulation Appellate Aviation & Aircraft Finance Business Immigration & Compliance Business Reorganization & Bankruptcy Corporate & Securities Defense & Homeland Security Economic Crisis & Recovery Energy & Natural Resources Entertainment Environmental & Land Development Financial Institutions Franchising Gaming Global Global Benefits & Compensation Global Trade & Investment Government Contracts Governmental Affairs Government Enforcement / Investigations Health & FDA Business Hotel, Resort & Club Insurance Recovery & Advisory Intellectual Property & Technology International Dispute Resolution Labor & Employment Life Sciences Litigation Pharmaceutical and Medical Devices Products Liability and Mass Torts Project & Infrastructure Finance Public Finance Public Infrastructure Public Utilities Real Estate Real Estate Investment Trusts Real Estate Operations Retail Sports Facilities & Entertainment Venues Structured Finance & Derivatives Tax Technology, Media & Telecommunications Transportation Trusts & Estates Wealth Management White Collar Criminal Defense 39

40 GT s Recent Representative Experience in the Hellholes California 190 attorneys, including nearly 80 litigation attorneys, in Los Angeles, Orange County, Sacramento, Silicon Valley, and San Francisco Extensive practice; specializing in complex commercial litigation, consumer fraud, Bus. & Prof. Code 17200, Proposition 65, ADA and employment class action practice, patent litigation, and products liability defense Defeated class certification numerous times and obtained defense verdict in class action trial Disposed of countless cases on motions to dismiss or for summary judgment West Virginia Lead defense counsel for manufacturers in multi-district litigation venued in state National and trial counsel for defendants in products liability and securities actions, and regulatory actions for capitalized consumer lender, brought in state Obtained dismissals and summary judgment in state courts, including dismissal of libel action against direct mail marketing company brought by Attorney General Significant experience defending companies in environmental and transportation-related actions venued in state 40

41 GT s Recent Representative Experience in the Hellholes Madison County, Illinois Nearly 130 attorneys, including over 40 litigation attorneys in our Chicago office, including several former Assistant U.S. and State s Attorneys Experience trying high-risk cases, and defending putative class actions in County, including dismissal of products liability class action relating to alleged defects in glucose monitor Numerous oral arguments on highly contested motions Successfully defended complex commercial, toxic tort, pharmaceutical, and consumer fraud cases brought in County Numerous successful state court appeals, including reversal of class certification Removed high-risk cases to federal court, defeated remand, and prevailed on forum non conveniens motions to transfer cases to more favorable counties 41

42 Greenberg Traurig s Experience in the Hellholes New York and Albany, New York Offices in both jurisdictions and in White Plains, with over 340 attorneys, including former government officials and retired appellate judges from the Court of Appeals and Appellate Division (First Dept.) Extensive practice: specializing in complex commercial, business dispute and securities litigation, often involving defense of financial institutions; consumer fraud, antitrust, ADA, and employment trial and class action practice; patent litigation; bankruptcy litigation; and mass tort/products liability defense Disposed of numerous cases on motions to dismiss and for summary judgment, and defeated class certification Obtained landmark ruling barring punitive damages against tobacco defendants under res judicata principles Baltimore, Maryland Several Maryland-licensed attorneys in our Washington and Tysons Corner offices, including a Maryland courts-focused practice in Washington Regular defense of financial services, broker-dealer, and products liability actions in the Circuit Courts of Baltimore City and Baltimore County Regular representation of plaintiffs and defendants in a wide range of actions in the U.S. Dist. Ct. for the Dist. of Md. (Baltimore Division) 42

43 Diversity from the Top Down Greenberg Traurig Executive Chairman Cesar L. Alvarez heads our diversity efforts. GT is the only current major U.S. law firm with a Hispanic executive chairman. A board member of the National Council of La Raza, Cesar has been awarded the: Spirit of Excellence Award, ABA Commission on Racial and Ethnic Diversity in the Profession President's Award of Merit for Diversity Efforts, The Florida Bar "Tocqueville Award for Outstanding Philanthropy," United Way of Miami-Dade Tocqueville Society "Lifetime Achievement Award," Chambers USA Awards for Excellence "CEO of the Year Award," MultiCultural Law Magazine Attorney of the Year Award, Hispanic National Bar Association Cesar is listed among the: Top Most Powerful Hispanics," The Black Book of Poder "25 Best Latinos in Business," Hispanic Magazine, The Power Issue 50 Most Influential Minority Lawyers in America," The National Law Journal 100 Most Influential Lawyers in America," The National Law Journal 43

44 Diversity, Not Diversity Committees Many firms have diversity committees, but we are proud to say that we have true diversity: The National Law Journal has recognized multiple GT attorneys as among: The 50 Most Influential Minority Lawyers in America (Three). The 50 Most Influential Women Attorneys (Two). The 50 Most Influential Attorneys in America (Three). The Minority Law Journal s Diversity Scorecard (2010) recognizes GT as ranked: No. 1 for most minority partners No. 1 for most African American partners No. 1 for most Hispanic American attorneys No. 4 for most Asian American partners 44

45 GT has a Diversity Leadership Community, Not a Committee Committees cannot nurture; they cannot mentor; they cannot create an environment where differences are embraced and utilized creatively. Committees don t lead. The diverse attorneys at GT, however, can and do. We welcome and reflect the communities we represent better than any other major law firm in our markets. We do not have a committee to achieve this. We have a commitment to providing a fair opportunity for each of us to reach our full potential. We have the personal dedication of many at GT who identify and bring into our firm this very special diversity. 45

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