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“FUNDS” IN CASE OF MASS TORTS: SOLIDARITY,

Francesca Benatti, 0000-0002-7594-3199

1

Universitá degli Studi di Padova

Recepción: 11 de agosto de 2021 / Aceptación: 10 de noviembre de 2021 / Publicación: 3 de enero de 2022

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Due to the Covid-19 pandemic, mass tort funds are becoming increasingly important as a form

of compensation for civil liability. This quick and easy access solution must be duly regulated

to preserve the general and specific aspects of the application of this figure. For this reason,

this article focuses on the analysis of mass tort funds for their possible effectiveness in

responding to the damage caused by the Covid-19 pandemic to fill the gaps in civil liability

through a conceptual, doctrinal, and normative study. What is important is that they do not

aspectos generales y específicos de la aplicación de esta figura. Por eso, este artículo se centra

en el análisis de los fondos en casos de agravios masivos por la posible efectividad que podrían

tener para responder al daño causado por la pandemia Covid-19 para suplir las brechas en la

responsabilidad civil mediante un estudio conceptual, doctrinario y normativo. Lo importante

es que no se transformen en herramientas para escapar de la responsabilidad.

acuerdos.

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Funds as an alternative compensation tool to civil liability in mass torts cases are again central.

In the context of the Covid-19 pandemic, they could constitute a useful and flexible solution

especially if accompanied by-laws providing for a limitation of liability. The advantages would

be found in faster compensation that would be automatic in the presence of predefined

requirements and would not be subject to the time, costs, and uncertainty of a judicial process,

not to mention that it is very difficult to frame cases of health damage occurring in the Covid-

The essay, therefore, aims to analyze, using a comparative method, the figure of funds focusing

on their evolution in the US, which has shown their potential and criticality. Its diffusion stems

above all from the disappointed expectations of class actions in mass torts: their abuse and the

consequent limits correctly imposed by the jurisprudence of the Federal Supreme Court have

reduced their use. In civil law systems, on the other hand, they could be imposed to compensate

for the gaps in protection caused by the residual and ineffective use of class actions.

Moreover, the complexity of the current reality shows a change of perspective and a

cases of mass torts, compensation was paid by the state (top-down) while in the latter, the

judicial procedure was considered more efficient (bottom-up) (Zimmerman, 2016, p. 1053).

Today, however, we are witnessing a blurring of the two approaches and the contextual use of

Finally, as Nagareda (2008) points out, the transaction is the subject of all mass tort litigation,

However, they do not represent a neutral instrument: in fact, their adoption must be based on

a clear identification of the policy objectives to be pursued and on careful and transparent

preparation of the operational mechanisms. The two aspects are closely linked: once the

objectives have been identified, the fund must be shaped in the appropriate way to secure them.

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Methodology: the application cases

Departing from comparative private law methodology (a qualitative to study and understanding

the Law) this article will introduce a case study approach.

Then, an example of the the best-known model was the one introduced in the United States to

compensate the victims of 11 September 2001. In addition to the need to help those affected

economic damage or even bankruptcy. It was a fund that was legally approved in a very short

of 9/11, but none for the victims of the Oklahoma City bombing, and why there was no

It should be noted that it was also a symbolic measure because it was intended to be a unique

at companies when they adopted a fund as a compensation tool. A relevant example is the Gulf

Coast Claim Facility (GCCF) created by BP with the help of US President Obama, after the

environmental disaster caused by the Deepwater Horizon oil rig and administered by Feinberg.

Unlike the 9/11 fund, it was a private fund strongly supported by the political establishment.

However, several objections were raised to the fund related to the ambiguous role of President

Obama, the lack of transparency in its functioning and the criteria adopted, and the smallness

of the sums set aside as compensation (Gilles, 2011). Those who acted privately or through

class actions obtained more significant compensation. Indeed:

Even with a party like BP able and willing to fund a massive private claims settlement

facility and recruit the nation's top administrator with an unquestioned reputation for

independence, that approach has failed to recreate the features of the class action that

work best-the ability to deliver peace for a premium and the assurances of consistent,

transparent, and equitable enforcement to all claimants. GCCF, for all its efforts to

low-cost process, could not live up to the class action settlement's ability to deliver on

case the perpetrators were immediately clarified. In the public debate, the GCCF was therefore

perceived to escape liability rather than to compensate effectively and quickly. Moreover, it

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can be seen how a fund can coexist with other instruments to deal with the same damaging

event. For example, three different mechanisms were initiated for the Fukushima disaster:

a) A collective action.

b) A compensation scheme administered by Tokyo Electric Power Company; and,

c) An ADR funded by the Japanese government.

However, the practice has shown numerous problems here, especially in coordination (Osaka,

2019). Although the three approaches were not intended to be exclusive but cumulative this

the compensatory scheme has adopted very strict standards, which has resulted in a protection

This allows for two assessments of a different nature. First, in assessing both the preference of

the merits over individual and class actions and the most appropriate model, one cannot ignore

an examination of the institutional context. And by this, we mean not only the different formal

certain mechanisms, the structure of the trial, the timing of justice. The way judges operate is

it might be more useful to combine damage with recovery or land improvement measures.

effective. The opportunity to obtain effective deterrence or punishment of perpetrators should

specific case should therefore guide the choice of mechanism.

of the offense:

They are not considered sufficient to overcome this limit, precisely because 'in the view

of liability the protection of the victims of the harm is achieved by placing the cost at

institution. (Salvi, 2019, p. 24-25).

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Certain types of disasters or mass damage seem more appropriate for a resolution of

corollary, such claims would also not support recourse to retributive justice. (Mullenix,

2015, p. 27)

favor these tools. An empirical study has found that in opt-in class actions, which are the most

In the case of funds, on the other hand, the percentages are as high as 95% (Dodge, 2014, p.

For example, plaintiffs would likely need advice from a lawyer on whether to accept a Vioxx

contractual goals of deterrence and compensation, the success of the private fund, which

from compulsory vaccinations, transfusions, and administration of blood products. Finally,

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Indeed, it has been observed that in the United States we are now seeing an evolution from

restrictions. These are broad forms of transaction that nevertheless require some precautions

was also in the employment of the wrongdoer. (Mullenix, 2012, p. 558)

(Hensler, 2004). For example, concerning funds created ex-ante, it is necessary to:

In any case, it is decisive to identify the actors, the damages, select the measures, design a plan

of the fund, the methods of financing, the categories that can be compensated, the criteria, the

compensation, whether it is possible to combine civil liability with the funds, the possibility of

Above all, an analysis of the cases in which it has been adopted shows how the quantification

assumption of a waiver of the claim for full compensation in the absence of costs, expectations

set it at 250,000 dollars to be satisfactory for all parties involved. They should be examined:

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(3) whether the authorities are considered benevolent, caring, and trustworthy.

If these instruments were to be widely adopted in Italy by companies, for example, the recourse

regime established for the transaction could be considered too limited because it would not

The objection could be overcome because membership always remains a voluntary choice

(Grabbill, 2012). Part of the doctrine has pointed out that

Although distributive and procedural justice are viewed independently, they are interrelated

hand, transparency, especially if public money is used. In the case of Covid, one could think

awarded or, according to Italian doctrine, even moral damages (Maggiolo, 2020).

often serious. It seems questionable to assign a duty of solidarity to a person who has already

been affected when he might need it. The first duty of solidarity, precisely in the terms of art.

2 of the Italian Constitution, belongs to the State which has or should have the instruments to

fulfill it.

References

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