Friday, March 23, 2012



• the goal is not to adhere to tort law doctrine; rather the goal is to do justice for these plaintiffs
• court gets rid of ‘but for’ causation
• adopts market share liability theory – (first established by a law student) each company is liable for the how much they contributed to the market (the amount of risk each company produced)
• a company could be responsible for 10% of the market 10% of the risk
• what is the relevant market of producers? In Hymowitz, the court determines that the market is national. This is a POLICY CHOICE.
• Court says no exculpation – defendant companies who have proof that they did not injure the plaintiff are STILL liable
• Does this make sense?? The court is apportioning liability for risk creation as opposed to actual harm.
• Another POLICY CHOICE that the court makes is joint and several liability versus several liability:
• Court decides companies have several liability only – only responsible for their share of the market; victim may therefore be short of full compensation if not all companies are named as defendants
• Inflation approach – inflating liabilities based upon their percentage of the market. If companies who controlled ten percent of the market are no longer around (bankrupt), a company who had 5% of the market would be additionally responsible for 5% of that 10%.
• But the court also says the companies’ liabilities should not be inflated because an inflation approach would increase the scope of liability

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