The new normal: international litigation and its implications for trial lawyers.

• Author: Gerstner, Kurt B.

The global economy is rapidly reshaping society. Technological advances have helped to spread information about different countries and cultures throughout the world, and this has been a catalyst for new business opportunities in new markets. Large companies have seen the benefits of global commerce for many years. But now, small and medium-sized companies are also seeing international markets as lucrative ways to expand their businesses.

The legal profession is also being reshaped by the global economy. Following the lead of clients, in-house lawyers and outside law firms that support their clients' international business activities have had to become familiar with new areas of the law, different cultural and business norms and new ways of practicing law. Many law firms have gone even further, opening international offices to bring them closer to their international clients and to develop even greater expertise with international laws that affect their clients.

Given the dramatic increase in international commerce that has taken place, it is no surprise that trial lawyers and their clients are also thinking globally when considering their litigation objectives. It is a natural progression; litigation that was first conducted locally within a single state or province expands to national multi-district litigation within a particular country and then to international litigation. Litigation results from one country may be used as precedent in litigation conducted in other countries. Laws that are available in certain countries may create favorable results that can affect business activities elsewhere. Strategic lawsuits may be part of the business strategies of some companies, curbing the activities of competitors in certain jurisdictions or creating leverage for other business negotiations.

Plaintiffs' lawyers have also learned that litigation in international venues can be a very profitable expansion of their domestic litigation activities. It has become very common for "copycat" litigation to spring up in other countries after first being developed in the United States. Consequently, clients may find themselves facing a repeat of litigation that they thought had concluded, with the litigation now transferred to a foreign jurisdiction.

International litigation against tobacco companies provides a useful illustration of how litigation is now taking place on an international battlefield. This article uses international tobacco litigation as a case study for these trends.

1. Tobacco Litigation History

   Litigation against tobacco companies is not new. It has gone on for many decades, having begun in the United States at least as early as the 1950s. For decades the tobacco industry was very successful defending these cases, which contained significant causation and contributory negligence issues.

   Notwithstanding their setbacks, the plaintiffs' bar persisted in bringing new actions in many different states on behalf of individuals and in the form of class actions. (1) Eventually, by the early 1990s, plaintiffs began seeing some success, and that success has increased over the years.

   Following some of these early victories, in the mid-1990s state governments jumped on the bandwagon, bringing lawsuits against tobacco companies to recover medical costs expended treating smokers who developed lung cancer and other diseases allegedly attributable to their smoking. Between 1994 and 1997 there were at least 42 lawsuits by state governments pending against tobacco companies seeking reimbursement for health care costs." (2)

   These state-sponsored lawsuits also began seeing success. For example, in 1996 it was reported that the parent of one of the large tobacco companies settled with several suing states. The settlement reportedly required the tobacco company to pay money, add new warnings to cigarette packages and testily against other tobacco companies. (3) Further settlements with states over health care costs occurred. In November 1998, a master settlement was reached between tobacco companies and forty-six states. According to the report, the settlement involved the ban on certain types of advertising, the creation of public education trusts and payment of over $200 billion over 25 years. (4)

   New lawsuits by other government entities also were filed. One such suit was filed by the United States government in the United States...