The opinions expressed here are those of the author, a columnist for Reuters.
By Alison Frankel
Dec 20 (Reuters) - Today’s column marks my last words as a legal journalist.
That sentence has been nearly 37 years in the making. I took a job at The American Lawyer in 1988 because I wanted to learn how to write sophisticated, deeply reported magazine features. I thought I’d stay a few years, sop up all of the wisdom I could absorb from Am Law’s legendary founder Steve Brill and his insanely talented team, and move along.
But I was captivated by the subject matter, especially when I wrote about litigation. Every case is an amalgam of facts, legal issues and litigation tactics. I love telling those stories.
I came to Reuters to write a daily column about litigation in 2011. At the time, companies were pleading with federal courts to rein in securities class actions; defense lawyers were urging rulemakers to address perceived abuses in mass tort litigation; courts were struggling to figure out how to set fair fees in contingency cases; and the U.S. Chamber of Commerce was lobbying for transparency from litigation funders like Burford.
You get my point: Nearly 14 years later, we’re still talking about the same things. Some business litigation controversies never seem to go away.
But others do! My first year or two at Reuters was dominated by litigation over mortgage-backed securities and other fallout from the financial crisis. Those are now almost all concluded. Shareholder class actions challenging M&A transactions were ubiquitous in my early years at Reuters because the Delaware Chancery Court’s fee regimen incentivized plaintiffs lawyers to reach fast disclosure-only settlements. After the Chancery Court clamped down on those fees, the cases migrated to federal court, then stopped getting filed as class actions at all.
Courts balked during my tenure at Reuters at several attempts to transform the most complex consolidated cases. The U.S. Supreme Court declined to erase the precedent underlying shareholder class actions. In the opioids litigation brought by city, county and tribal governments, an appeals court rejected plaintiffs’ proposed “negotiation class,” whose members would have voted on proposed settlements. The federal district judge overseeing litigation over Bayer’s weedkiller Roundup refused to approve a settlement for future claimants that would have established a panel of experts to analyze whether Roundup is carcinogenic.
And a bankruptcy judge killed 3M’s bid to ditch multidistrict litigation and use the bankruptcy process to resolve claims that its earplugs caused hearing loss for members of the military. If 3M’s tactic had succeeded, you can be sure that just about every defendant embroiled in a big mass tort crisis would have adopted it. Instead, 3M ended up reaching a global settlement in court, just like almost every other mass tort defendant (except for the handful that managed to exterminate cases by discrediting plaintiffs’ experts).
I covered other big ideas as they evolved into major Supreme Court precedent: class action dismissal motions contending that plaintiffs did not have constitutional standing to assert claims based on inconsequential statutory breaches; a 2016 opinion by then-appellate judge Neil Gorsuch that questioned the premise of Chevron deference; a 2015 defense dismissal motion arguing that the U.S. Securities and Exchange Commission’s administrative judges were unconstitutionally appointed.
I vividly remember thinking when I read that 2015 motion to shut down an SEC administrative proceeding that the Appointments Clause theory, which built on the Supreme Court’s decision in a case contesting the appointment of members to the Public Company Accounting Oversight Board, was intriguing. But I’ll confess that I failed to imagine the subsequent cascade of constitutional challenges to federal agency enforcement – and most recently, to removal protections for agency heads. The litigation over SEC in-house judges, in a way, put into play the entire future of the administrative state.
I also failed at first to imagine the consequences of the Supreme Court’s 2011 ruling in AT&T v. Concepcion. The decision allowed companies to impose mandatory arbitration and class action waivers on consumers and employees — and companies flocked to do just that. The consequences of Concepcion and the Supreme Court’s many subsequent decisions refusing to budge on mandatory arbitration have since been a consistent theme in my coverage.
That’s been particularly true in the last four or five years, as plaintiffs firms figured out how to turn mandatory arbitration provisions to their advantage in the now-burgeoning field of mass arbitration. Plaintiffs firms have become experts in assembling vast dockets of clients — as many as 70,000 or 80,000 in some cases — to demand arbitration, exposing corporate defendants to big procedural costs.
Companies keep tweaking their arbitration clauses to make it harder for plaintiffs to engage in mass arbitration campaigns, which defendants insist are tainted by inadequate client vetting. Arbitration forums have modified their fee scales, reducing plaintiffs’ leverage. Over the next few years, we will see whether these corporate tactics manage to squelch mass arbitration — or whether companies end up ditching mandatory arbitration because old-fashioned class actions turn out to be a cheaper and easier way to resolve disputes.
I’m absolutely thrilled to tell you that my colleague Jenna Greene will be taking over this column to continue tracking these big litigation questions. You probably already know Jenna from her work as a Reuters columnist. She joined our roster in early 2020 and immediately started producing work so stellar that she was honored as Reuters’ columnist of the year.
Jenna has deep expertise in covering big cases. Like I did, she came to Reuters from the American Lawyer network, where she was editor for years of the Litigation Daily. She also has an authoritative voice and fantastic storytelling instincts, as her columns prove so emphatically.
I'm counting on all of you who have helped me understand and write about your cases over these last many, many years to be as generous with Jenna. Our brand of deep, thoughtful legal journalism is rarer and more vital than ever. The country's political polarization has already begun to color public perception of the judicial system, but I can promise you that Jenna will uphold the bedrock Reuters values I have tried to embody in this column: independent thinking, unbiased reporting, even-handed writing and transparency when we make a mistake.
Jenna’s first column will be in the New Year. I can’t wait to see what she does with the place.
It has been an honor and a privilege to write for you. The late Charlie Munger, who is best known as Warren Buffett’s right-hand man but was also a longtime publisher of legal journalism as chairman of the Los Angeles Daily Journal, famously said that “the best thing a human being can do is to help another human being know more."
I hope I’ve helped you know more.
(Reporting By Alison Frankel)
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