Remedies - Damages - Part 1 General Principles, Fraud

SLIDES Damages Part 1
New York Uniform Commercial Code
Prejudgment interest - NY CPLR 5001
Fraud - Burden of proof - NY Pattern Jury Instruction
Fraud elements and burden of proof - comparing NY and Delaware
Video 28:39

Video 43:16

MDL Mass Tort Product Liability Settlements

SLIDES

The ASR Hip Implant Settlements - DePuy/Johnson & Johnson

Peruse ASR settlement website

Review 2015 Final ASR Settlement 

Review Opening Slideshow in Kransky trial

Background - Class actions and consolidated tort litigation

Rule 23 Class Actions - Federal Rules of Civil Procedure
28 USC 1407 - Multi-district Litigation MDLs
Manual for Complex Litigation - Federal Judicial Center
Pinnacle settlement: Common benefit fund Magistrate's Report

Opinion | The America We Need - The New York Times

OTHERWISE: Opinion | The America We Need - The New York Times: 

The pandemic has exposed two deep truths: the fifty year Republican assault on the public sector has left us unprepared for this crisis, and the moral deficiency which that drive expressed has left us in the hands of an incompetent President incapable of empathy.

The New York Time Editorial Board begins today a long series of essays by addressing the roots of our failure. 

If you click through to the Times story you will find a 24 minute audio.

- GWC

OTHERWISE: Message to SCOTUS: Maximize voting and public health - Wisconsin teaches us

OTHERWISE: Message to SCOTUS: Maximize voting and public health - Wisconsin teaches us: Message to SCOTUS from Wisconsin: Maximize voting and public health by GeorgeW. Conk

When the United States Supreme Court, split along the familiar lines, reversing the courts below, ordered “Per Curiam” that Wisconsin voters who chose mail ballots must have them post-marked by midnight of election day, Tuesday, April 7, the usual alarms rang.  Defenders saw a ruling to maintain regular order and ballot integrity; critics saw a partisan effort to reduce voting and aid a Republican seeking to retain a state Supreme Court seat. Of course, neither an effort to save or gain a court seat should motivate the decision on how to conduct an election.

Opinion | On the Wisconsin Primary, the Supreme Court Failed Us - The New York Times

Opinion | On the Wisconsin Primary, the Supreme Court Failed Us - The New York Times: The five conservative justices refused to extend the deadline for absentee ballots in Wisconsin in the middle of the pandemic.

Restitution - Remedies - part 2

SLIDES - Part 2 Remedies in Restitution
Restatement 3rd -  Restitution and Unjust Enrichment  [link to my Dropbox]
Section 1 General Principles
Section 2 Limiting Principles
Section 3 Wrongful gain
Section 7 Mistaken performance of another's obligations
Section 22 Performance of Another's Duty
Section 50 Innocent recipient
Section 55 Constructive Trust
Section 56 Equitable Lien
Section 57 Subrogation
Section 66 Bonafide purchaser
Section 67 Bonafide payee


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Opinion | ‘Woe Is You,’ White People Keep Telling Us - The New York Times

Opinion | ‘Woe Is You,’ White People Keep Telling Us - The New York Times: This virus is poised to rip through black neighborhoods like mine.

From Detroit to Minneapolis - Jeremiah Ellison - Municipal Council Member - Minneapolis

Legal Malpractice Claims Against Public Defenders Subject to Tort Claims Act, Justices Rule | New Jersey Law Journal

A man wrongly imprisoned for twelve years in a New Jersey sexual assault case was denied recovery in his legal malpractice action against a public defender by the state's Supreme Court today in Chaparro-Nieves v. Office of the Public Defender.

The court ruled that because Antonio Chaparro Nieves  reported no psychiatric or other medical treatment he failed to qualify under the state's tort claims act which sets a $3,00 minimum threshold for "emotional" harm cases.  Only Associate Justice Barry Albin parted ways - arguing that a claim for compensation for loss of liberty should not be "conflated" with one for emotional distress.

I argued for the New Jersey State Bar Association that the part-time lawyers in private practice hired as "trial pool" attorneys by the state's Office of the Public Defender are entitled to defense and indemnification by the state in legal malpractice cases.

Nieves did, however, receive compensation under the state's Mistaken Conviction Compensation Act which caps damages for lost liberty at $50,000 per year or twice their salary in the year preceding imprisonment.

If there is a silver lining in the case it is that pool attorneys - almost invariably solo practitioners working for a very modest fee set by state law - will not be faced with burdensome professional liability insurance premiums for undertaking such work.  And in cases such as Nieves in the future the rather modest financial threshold will normally be overcome.  Under the Tort Claims Act NJSA 59:1-1 there is no cap on damages. - GWC

Legal Malpractice Claims Against Public Defenders Subject to Tort Claims Act, Justices Rule | New Jersey Law Journal: The ruling means anyone wishing to sue the public defender for legal malpractice must comply with the strict timetable of the TCA.

"Attorneys serving under the public defender, whether full-time staff attorneys or contracted pool attorneys, meet the definition of an OPD employee for TCA purposes, and have been treated as public employees in previous cases, Justice Jaynee LaVecchia wrote for the court. The OPD is an office within the executive branch, whose head is appointed by the governor with the advice and consent of the state Senate, LaVecchia said. It relies on state funding appropriated through the annual state budget."

Bernard Chazen - 96 - won landmark product liability case Henningsen v. Bloomfield Motors

Bernard Chazen, of Englewood New Jersey, a partner in the father and son firm Chazen & Chazen, led an outstanding life as a lawyer. Many of us set out to have an impact on the law.  Bernard Chazen did.  In 1959 he persuaded the New Jersey Supreme Court to strike down as a matter of "social justice" the legal obstacles that the courts and automobile companies had placed in the way of recovery for injuries due to defective products.
The court's opinion in Henningsen v. Bloomfield Motors (1960) declared unenforceable a waiver buried deep in the fine print of the contract for purchase of a new car - blocking any lawsuit against the manufacturer.
In 1959 leading torts scholar William Prosser seized on the case as embracing the principle of strict liability for defective products.  It was a principle for which he and his former colleague Justice Traynor of the California Supreme Court had been arguing for fifteen years. 
Now, with the authority of the New Jersey Supreme Court Prosser proposed it to the influential American Law Institute which embraced it and began the product liability revolution which swept the courts of the country.  
The issue had been spurred by pediatricians and others who saw in automobile crash injuries and deaths a major public health crisis.  Daniel P. Moynihan, the late Senator then working for New York Governor Averill Harriman, had issued a an important highly publicized report titled Epidemic on the Highways.  It drew attention to the 5,000,000 automobile crash injuries per year, an era when the Big Three's horsepower race was full on and the Beachboys song 409 celebrated Chevrolet's 409 horsepower engine. Moynihan argued that exhortations to drive carefully were ineffective and that automobiles themselves must change, even though in Detroit safety was "a dirty word".
Bernard Chazen's proudest achievement as a lawyer was the spur his work gave to the movement for product safety.  The obituary posted by his family is below- GWC

BERNARD CHAZEN
 Englewood, NJ  Bernard Chazen - Englewood, NJ – age 96 on April 11, 2020 
Born to Nathan and Esther Chazen in New York, New York.
Beloved husband of Bernice Chazen for 56 years who predeceased him in 2010. A wonderful father to David, Jonathan (his wife Cynthia) and Sarah (her husband Martin). He raised his family in Englewood and served on the Englewood Board of   Education (1965-1969, President 1968-1969). General Counsel to the Englewood Redevelopment  Agency (1970-1973).
A loving grandfather to grandsons Sam, Max, Ben, Daniel and Jacob. A first  generation American citizen. Worked in his parent’s millinery shop as a child.
As a member of  America’s greatest generation he enlisted in the Navy during World War II and served as a lieutenant  aboard an LST in the Pacific Theater. Upon his return he attended Middlebury College, Columbia  University (JD) and Rutgers University (LLM) thanks to the GI Bill. He continued to serve in the Navy  reserves as a JAG officer and retired with the rank of Captain.
In 1949 he began to practice law in New  Jersey. His contributions to American jurisprudence in the field of product liability improved the lives of  all Americans. He believed that manufacturers have a responsibility to make their products safe for use.  There was a time that manufacturers of a defective products were not legally responsible to the  consumer because the consumer did not purchase the product directly from the manufacturer and  lacked privity of contract. He searched for the right case to take up on appeal and change the law. He  found it and argued the landmark 1960 case, Henningsen v. Bloomfield Motors, and pioneered modern  product liability law into what became the law of the land.
Manufacturers are now incentivized to make  safe products and avoid liability for defective products that injure consumers. He argued cases before  the US Supreme Court.

He was an Associate Editor of the New Jersey Law Journal from 1967 until his  retirement in 2008 and a prolific writer of editorials. He often lectured to other lawyers on a variety of  legal topics for continuing legal education programs run by ICLE and Inns of Court. He was appointed to  numerous committees by the New Jersey Supreme Court. He was appointed to numerous commissions  by the Governor and served on the New Jersey Law Revision Commission. He was a Certified Civil Trial  Attorney. He was considered a “lawyer’s lawyer”.

`Release them' - hundreds of cars circle ICE detention center in Arizona.

RIGHT NOW! Hundreds of cars circling La Palma Correctional Center in AZ demanding ICE #FreeThemAll.

There have already been 3 confirmed cases of #COVID19 here. It’s now a matter of life or death.

We may be quarantined, but we will not be silent. #AZLiberenatodxs pic.twitter.com/LTEPOzQDXx

— Maxie Adler (@maxie_adler) April 11, 2020