US Litigation Research Articles

Evolving artificial intelligence and robotics in medicine, evolving European law. Comparative remarks based on the surgery litigation

This article discusses key and critical tort law issues that have arisen from artificial intelligence and robotic medical applications. It aims at addressing the most recent European regulatory trajectories – ultimately traced by the Proposal for the Artificial Intelligence Act April 21 2021 – starting from the study of the legal issues that stemmed from the instructive experience of the US litigation on robotic surgery, which was foregoing on account of its cutting-edge and accelerated enhancement of the field. The recognition and analysis of the criticalities about products’ malfunctioning as well as the focus on other producers’ duties will lead the reader to reflect on the suitability of the legal rules planned by the European Authorities on the ground of the empirical features of the new step of technological progress in the field in question.

Private International Law Bibliography 2018: U.S. and Foreign Sources in English

Abou-Nigm, V.R., McCall-Smith, K. & French, D. (eds.), Linkages and Boundaries in Private and Public International Law (2018). Aman, A.C., Transnational Law: Cases and Problems in an Interconnected World (2017). Arzandeh, A., Forum (Non) Conveniens in England: Past, Present, and Future (2018). Banu, R., Nineteenth-Century Perspectives on Private International Law (2018). Bobei, R.B., Transnational Commercial Contract Law: Concise Commentary on the UNIDROIT Principles of International Commercial Contracts 2016 (2017). Bonomi, A. & Schefer, K.N. (eds.), US Litigation Today: Still a Threat for European Businesses or Just a Paper Tiger? (2018).

Update on PDVSA US Litigation Trust v. Lukoil Pan Americas, et al.

This is an update to the article we published on March 15, 2018 on the lawsuit filed by the PDVSA US Litigation Trust (the “Trust”) in federal court in Miami, Florida on behalf of Venezuela’s state-owned oil company, Petroleos de Venezuela, S.A. (“PDVSA”) against a group of 44 oil trading companies, banks and individuals, alleging that they participated in a 14-year scheme to rig bids, underpay on purchases and overcharge on sales, allegedly resulting in billions of dollars of losses to PDVSA. Our prior article flagged a number of interesting legal and factual questions raised by the suit, such as how the Trust was created, whether it has standing to assert PDVSA’s claims, whether some or all of the claims would be barred by applicable statutes of limitation and adequately assert an injury in the United States, and whether the Trust would be able to obtain the cooperation from PDVSA necessary to respond to discovery requests, among others. The case also may have implications for financial creditors of PDVSA, and even creditors of the Republic of Venezuela, who may be able to lay claim to the economic value of the Trust’s lawsuit or to any recovery, on the theory that the Trust is pursuing the claims for PDVSA’s sole benefit. The filings in the suit thus far provide insight into some, though certainly not all, of the questions raised by this suit and also introduce new issues of their own. Defendants are pursuing a vigorous challenge to the standing of the Trust to assert PDVSA’s claims under both Venezuelan and New York law, which the Court has agreed to hear as a preliminary issue. The agreement by which the Trust was formed has been filed with the Court and it reveals the role of the Venezuelan government in entering into the Trust agreement on PDVSA’s behalf and the economic interests of the Trust’s lawyers and other professionals versus those of the beneficiary of ultimate recoveries, PDVSA. The defendants’ opposition to the Trust’s motion for a preliminary injunction seeking a seizure of evidence and freeze of assets also has revealed defenses to the federal and state claims asserted in the complaint and confirmed that some of the issues we identified are already arising in the litigation.

PDVSA US Litigation Trust: What Creditors Should Know About the Trust, Its Claims and Its Implications for Venezuela's Restructuring

Last week, lawyers unsealed a complaint filed in federal court in Miami, Florida on behalf of Venezuela’s state-owned oil company, Petroleos de Venezuela, S.A. (“PDVSA”), against a group of 44 oil trading companies, banks and individuals. The suit alleges that the defendants participated in a 14-year scheme to rig bids, underpay on purchases and overcharge on sales, allegedly resulting in billions of dollars of losses to PDVSA. The lawsuit was brought by an entity called the PDVSA US Litigation Trust, which was formed for the purpose of pursuing potential claims by PDVSA, and to which PDVSA has reportedly assigned its litigation rights related to the alleged bribery scheme but retained the right to receive the net recovery the Trust obtains. The decision by PDVSA to pursue these claims in the United States at this time via a litigation trust raises a number of interesting legal and strategic issues not just for the defendants named in the suit, but also for PDVSA’s bondholders and other creditors. With respect to the litigation, there are questions as to whether the Trust has sufficient standing to be a claim, whether some or all of the claims will be barred by applicable statutes of limitation, and whether the Trust will be able to obtain the cooperation from PDVSA necessary to respond discovery requests. The case may also generate a reaction by financial creditors of PDVSA, who until now faced the prospect of pursuing claims to billions of dollars in defaulted PDVSA bonds without any known PDVSA assets in the United States, other than PDVSA’s indirect interest in CITGO Petroleum Corporation. Those creditors might now be able to lay claim to the economic value of the Trust’s lawsuit or to any recovery, on the theory that the Trust is pursuing the claims for PDVSA’s sole benefit and PDVSA has the right to receive any recovery assuming no impediment posed by any then-pending U.S. sanctions. The potential ability to attach the Trust’s recoveries may convince creditors to pursue actions against PDVSA in order to position themselves as the first beneficiaries of those recoveries, or may otherwise provide the proverbial “carrot” to offer creditors willing to restructure their claims as part of an eventual global restructuring of the debt of PDVSA, and possibly even the Republic.

Redressing Risk Oversight Failure in UK and US Listed Companies: Lessons from the RBS and Citigroup Litigation

In the decade since the onset of the 2007–2008 financial crisis, there have been numerous calls for the directors of failed or rescued banks to be held liable for the significant losses that these collapses inflicted on investors and the general public. In the UK, the high-profile RBS Rights Issue Litigation has come to represent something of a fulcrum of domestic concerns in this regard. Notwithstanding their mixed results, securities law actions alleging disclosure failure have been a fairly popular avenue of attempted redress for investors who were burned in the crisis, as exemplified most pertinently by the successful US litigation emanating from the implosion of Citigroup in 2008. By contrast, directors’ duties actions premised on alleged risk oversight failure in collapsed banks have enjoyed only limited success in the United States, and no real success whatsoever in the UK. This is a remarkable fact, given that the director’s corporate law duty of care would prima facie seem the most direct and overt means of redressing investor losses in such instances. The implication is that in UK (as in US) listed companies today, the duty of care is being progressively usurped in this regard by alternative securities law mechanisms, rendering corporate law increasingly redundant as a meaningful lever of director accountability.

O Novo Regulamento de Arbitragem do International Centre for Dispute Resolution

ABSTRACT: This article addresses the major changes incorporated into the new ICDR International Arbitration Rules effective June 1, 2014. The changes have responded to users demand, consolidated what was already the practice of the ICDR, and incorporated the ICDR Guidelines for Arbitrators on Exchange of Information. In addition, the New Rules bring other interesting features, such as the provision of the consolidation arbitrator, the express exclusion of US litigation procedures, the international expedited procedures for cases up to USD $250,000, the express possibility for the ICDR to invite the parties to mediate in a parallel track with arbitration, the electronic documents provision, the rule on privilege, and the express reference to the administrative conference call with the parties before the appointment of the arbitral tribunal and the list method for appointing arbitrators. We note that the main goal of the New Rules is based on the following three pillars: increasing the efficiency of arbitration, reducing costs, and preserving the impartiality and independence of arbitrators. Lastly, there is an important role for mediation as a means of conflict resolution.

Table of Contents

Abstract Arbitration Get Back—Return Arbitration to Its ADR Roots by M. Scott Donahey CPR News September/October Meetings and Events Mediation Another Look at Mediation Confidentiality: Does It Serve Its Intended Purpose? by Eric van Ginkel International Arbitration Arbitration Emerging to Resolve International Financial Disputes by Suyash Paliwal, CFA The Master Mediator / Part 1 Bias, Fallacies & Decision Errors—Processing Information: Sights, Sounds and Framing by Robert A. Creo ADR Briefs Even in California: State's Right to Refuse Enforcement of Class‐Action Waivers on Public Policy or Unconscionability Grounds Is Preempted by FAA—Iskanian v. CLS by Lia Iannetti Material Relevant to US Litigation Not Automatically Shielded by Arbitration Confidentiality: Veleron Holding, B.V. v. Morgan Stanley & Co. by Lia Iannetti Briefs in Brief

Analyse Comparative / Comparative Perspectives

This article concerns the processes available in English and Welsh civil procedure through which evidence is obtained prior to trial. It provides an account of both the compulsory and voluntary pre-issue processes for exchange of documentary evidence between parties to putative litigation. It then goes on to outline the trans-substantive nature of documentary disclosure post-issue; a process that was subject to structured reform in 1999 and again in 2013 to ensure that the extent of such disclosure is linked to the nature and value of the dispute. Finally, it looks at the process through which witness evidence that would once only have been given at trial is available in the form of written statements exchanged by the parties during the pre-trial phase of litigation. It notes how this differs from the deposition process in US litigation, while setting out how a form of deposition process plays a limited role in securing witness evidence for trial.

Thoughts on the American Rule and Contingency Fees

Senior Costs Judge Peter T. Hurst examines the ‘American Rule,’ which generally does not allow fee recovery in the US litigation with some important exceptions. The Article critically assesses the American contingency fee regime as the UK Government weighs the Lord Justice Jackson’s Cost Review, which proposed, among other things, to allow the contingency arrangement on a limited basis.

The challenges of litigation in US courts and the actions tissue banks can take to meet those challenges

The growth of tissue banking from local non-profit organizations to national and multi-national corporations has increased the likelihood of litigation against tissue banks. The acquisition of tissue banks by corporate entities, many of whom are based in the US, means that tissue banks need to be prepared for the challenge of litigation in the US courts. The purpose of this paper is to help tissue banks meet those challenges by describing the nature of US litigation, the most common types of lawsuits against tissue banks and the steps that tissue banks can take to prepare for litigation in the US.

An unwelcome embrace: potential exposure of offshore trustees to US litigation

An unwelcome embrace: potential exposure of offshore trustees to US litigation

Legislating tolerance: Spain's national public smoking law

While Spain's national tobacco control legislation prohibits smoking in many indoor public places, the law provides for an exception to the prohibition of smoking by allowing separate seating sections and ventilation options in certain public places such as bars and restaurants, hotels and airports. Accordingly, Spain's law is not aligned with Article 8 Guidelines of the World Health Organization's Framework Convention on Tobacco Control, which requires parties to ensure universal protection against secondhand smoke exposure in all enclosed public places, workplaces and on all means of public transport. Spain's law is currently being promoted by the tobacco companies in other countries as a model for smoke-free legislation. In order to prevent weakening of smoke-free laws in other countries through industry-supported exceptions, we investigated the tactics used by the tobacco companies before the implementation of the new law and assessed the consequences of these actions in the hospitality sector. Internal tobacco industry documents made public through US litigation settlements dating back to the 1980s were searched in 2008-9. Documents show that tobacco companies sought to protect hospitality venues from smoking restrictions by promoting separate seating for smokers and ineffective ventilation technologies, supporting an unenforceable voluntary agreement between the Madrid local government and the hospitality industry, influencing ventilation standards setting and manipulating Spanish media. The Spanish National Assembly should adopt comprehensive smoke-free legislation that does not accommodate the interests of the tobacco industry. In doing so, Spain's smoke-free public places law would be better aligned with the Framework Convention on Tobacco Control.

Patentability issues surrounding antivirals

Although increased patenting has accompanied the development of antivirals as in vivo therapeutics, ongoing US litigation reflects concerns regarding their patentability.

Audit Quality and Earnings Management in France

This paper investigates the effect of audit quality variables on abnormal accruals in the French context. The sample comprises 255 firm-years observations from SBF 120 Index companies (1999-2001). Abnormal accruals are estimated using a Jones cross-sectional Model, as well as a CFO Model (Jones Model controlling for cash flows). They are considered in signed value, as a proxy for accounting conservatism, and in absolute value, as a proxy for the overall earnings management regardless of income-increasing or -decreasing incentives. Multivariate analyses document that: (1) the presence of a Big Five auditor has no effect on the magnitude of abnormal accruals whether considered in signed or absolute value; (2) the presence of an audit committee (but not the committee's independence) is associated with lower signed abnormal accruals, suggesting more conservative accounting earnings; and (3) in contradiction with positive accounting predictions, leverage has a negative effect on signed abnormal accruals. Implications of these findings are discussed in the French setting with respect to, notably, the lower litigation risk of auditors (vs. the US litigation system), the recommendations on audit committees, the duties of corporate directors, and the traditionally significant role of accounting in the protection of debtholders' interests.

Asbestos mining and occupational disease in Southern Rhodesia/Zimbabwe, 1915-98.

Asbestos has been mined in Zimbabwe since 1915 with the British company Turner & Newall (T&N) dominating the industry for most of its history. From 1930 T&N was subject to health‐and‐safety regulations in its British factories but chose not to apply such measures to reduce the risks to its African workforce. Conditions on the mines were hazardous and many workers were injured in accidents or suffered from asbestos‐related disease. The arena of occupational health is highly contested. Employers tend to have a monopoly over data about the conditions of labour and resulting injury, and there is often an unbridgeable gulf between the oral evidence from workers and claims made by employers and regulatory authorities. This paper integrates testimony from miners and public records with materials rarely available to historians: internal T&N archives, made available as a result of US litigation. Those archives reveal what the company knew about risk and disease on its mines in Zimbabwe.

The liability of accountants and auditors under the Federal Securities Acts and the Racketeer Influenced and Corrupt Organizations Act in the USA

Shows how the Securities and Exchange Act and the Racketeer Influenced and Corrupt Organizations Act 1970 (RICO) in the USA impose additional burdens on auditors in the detection of accounting errors, irregularities and fraud, compared with other countries like the UK; this is in addition to the generally high levels of US litigation against professional people because of factors like contingency based legal fees, class actions, and jury trials. Outlines the history of protection of investors by law since the stock market crash of 1929, the Acts’ provisions, and cases arising from them: the Securities Act is concerned with disclosure, and the Exchange Act with trading in securities. Moves on to the provisions of the RICO, which makes accountants criminally liable for mail and securities fraud and for knowingly issuing negligent audit reports, arguing that the original intentions of the Act have widened so far that accountants have become insurers of business failures at triple the losses suffered by the businesses.

The Demand for Directors’ and Officers’ Insurance by Large UK Companies

This paper investigates why large public companies in the UK purchase liability insurance for their directors and officers (D&O). Previous research suggests that companies may purchase D&O insurance for three reasons: (1) as part of their corporate insurance programme, (2) due to demand from directors, and (3) as part of an optimal governance arrangement. This study tests each of these hypotheses on a sample of large UK companies. The empirical analysis is facilitated by UK legislation obliging companies to disclose the existence of a corporate-funded D&O policy. The empirical analysis finds that insured companies are larger, are more exposed to US litigation, experience greater share price risk, exhibit lower levels of managerial ownership, and possess greater non-executive representation on their boards than uninsured companies. These findings provide some support for all three motivations for possessing D&O insurance but the demands of individual directors and governance seem particularly important.

Canadian Manager Perceptions of the US Exchange Listings: Recent Evidence

This study reports recent evidence of Canadian manager perceptions of the benefits and costs of listing in US markets, their attitudes toward listing in the US market, and their opinions regarding the importance of using alternative reporting and disclosure requirements, such as Canadian GAAP or international standards, in lieu of US GAAP for US listings. Manager perceptions of firms listing in the US (“listers”) are compared to those of firms that have not listed in the US (“nonlisters”) as well as to listers’ perceptions collected prior to the implementation of the Multijurisdictional Disclosure System (MJDS). Our results do not unambiguously support expectations that implementation of the MJDS would result in cost savings for Canadian listers. We find strong similarities in the perceived benefits of listing as previously reported, but in a significantly higher proportion of our post–MJDS sample. Responses from listers and nonlisters reflect differences between the two populations. Listers appeared concerned with US GAAP reconciliations and disclosure requirements while non–listers are more concerned with the overall difficulty of listing, the costs of listing, and US litigation. Most strongly, however, nonlisters perceive it as unnecessary to list in the US market. Contrary to expectations, we find that US accounting disclosure and reporting requirements are not perceived to be barriers to US market entry for Canadian firms, but instead appear to be post–entry irritants. Finally, we also find evidence that perceptions of nonlisters differ between those firms that list on the Vancouver Stock Exchange and those that list on the Toronto Stock exchange. This suggests that future studies may require finer partitions than on a national basis.

Tobacco industry efforts subverting International Agency for Research on Cancer's second-hand smoke study

Scientific reports on second-hand smoke have stimulated legislation on clean indoor air in the USA, but less so in Europe. Recently, the largest European study, by the International Agency for Research on Cancer (IARC), demonstrated a 16% increase in the point estimate of risk in lung cancer for nonsmokers, a result consistent with earlier studies. However, the study was described by newspapers and the tobacco industry as demonstrating no increase in risk. To understand the tobacco industry's strategy on the IARC study we analysed industry documents released in US litigation and interviewed IARC investigators. The Philip Morris tobacco company feared that the study (and a possible IARC monograph on second-hand smoke) would lead to increased restrictions in Europe so they spearheaded an inter-industry, three-prong strategy to subvert IARC's work. The scientific strategy attempted to undercut IARC's research and to develop industry-directed research to counter the anticipated findings. The communications strategy planned to shape opinion by manipulating the media and the public. The government strategy sought to prevent increased smoking restrictions. The IARC study cost $2 million over ten years; Philip Morris planned to spend $2 million in one year alone and up to $4 million on research. The documents and interviews suggest that the tobacco industry continues to conduct a sophisticated campaign against conclusions that second-hand smoke causes lung cancer and other diseases, subverting normal scientific processes.

Scientific literacy and the jury: reconsidering jury `competence'

This article explores contemporary debates about the competence of juries to assess scientific and technical evidence. Most existing approaches measure jury competence against an unproblematized yardstick of `the correct scientific understanding'. We will develop an alternative, more sociologically and epistemologically nuanced view of the jury comprehension of science which significantly reframes these issues for both proponents and opponents of the jury. In particular, by using examples surrounding the recent US litigation involving birth defects allegedly caused by use of the drug Bendectin, we will challenge the common claim that inconsistencies in jury findings provide support for restricting the role of the jury in matters involving science and technology based on alleged jury `incompetence'. We conclude by noting that jury competence is a politically charged ascription.