Thursday April 11, 2024

8:00 a.m. – 8:45 a.m.

Breakfast

8:45 a.m. – 9:00 a.m.

Opening Remarks

9:00 a.m. – 10:30 a.m.

Panel One: Bankruptcy 1: Whither the Texas Two Step

• A company with tens of thousands of product liability claims pending against it files for Chapter 11.
• What advantages does it seek to gain from this maneuver?
• What responses should the claimants consider, and assuming that the bankruptcy proceeds, how will the claims process work, and what are the pitfalls of which claimants should be aware?
• What role, if any, will existing MDL counsel have in the bankruptcy: who will be doing what going forward?
• In most MDLs, there are common benefit orders: what happens to them in Chapter 11?

Panel One Guests

• Moderator: Lindsey Simon, University of Georgia
• Honorable Shelley C. Chapman (Ret.), Willkie
• Greg Gordon, Jones Day
• Anne Andrews, Andrews & Thornton
• Samir Parikh, Lewis & Clark Law School

10:45 a.m. – 12:15 p.m.

Panel Two: Bankruptcy 2: Non-Debtor Releases and the Implications

• Regardless of the outcome in Purdue Pharma, there will be efforts to change the law.
• This panel will discuss whether any non-debtors should ever be able to obtain releases in the bankruptcy court.
• Some are routinely given now; why are they allowed and apparently non-controversial?
• The discussion will then move on to what categories of individuals or companies should be eligible – corporate officers; parents and subsidiaries; insurance companies; stockholders; others.
• Should the law be similar to the one for asbestos?
• Should it be limited to those who contribute funds for future claims?
• What other kinds of limits should there be?
• What discovery of eligible non-parties should be provided?

Panel Two Guests:

• Moderator: Alan Morrison, George Washington University
• Ken Feinberg, Special Master, The Feinberg Group
• Honorable Robert D. Drain (Ret.), Skadden, Arps
• Arik Preis, Akin Gump
• Scott Partridge, Partridge LLC

1:30 p.m. – 3:00 p.m.

Panel Three: Proposed Rule 16.1

• Rulemaking for MDLs: Do we need special rules for MDLs, or are other forms of guidance a better idea?
• The Civil Rules Committee’s proposed Rule 16.1 has met with mixed reviews: is anything needed, or did the proposal go too far or not far enough?
• In addition, the panel will discuss whether some of the ad hoc devices now commonplace in mass tort MDL proceedings may be subject to challenge because they are arguably not authorized by the MDL statute or they conflict with other legal principles.
• These include orders that (1) limit the ability of non-leadership counsel to participate in the MDL proceeding; (2) permit direct filing but differ from the case transfer process specified by the MDL statute; or (3) prevent claimants from filing their cases pending further order of the court.

Panel Three Guests:

• Moderator: Rick Marcus, UC San Francisco
• Honorable Lee Rosenthal, United States District Court, Southern District of Texas
• Elizabeth J. Cabraser, Lieff Cabraser
• Deidre Kole, Assistant General Counsel, Johnson & Johnson – Litigation
• Kaspar Stoffelmayr, Bartlit Beck

3:15 p.m. – 4:45 p.m.

Panel Four: Uninjured Plaintiffs in MDLs

• Determining the Extent of Actually Injured Claimants in Mass Tort MDLs:  Defendants claim, and lawyers for plaintiffs often agree, that there are many cases filed (or held in abeyance) in MDLs, in which it turns out that there is no evidence that a number of the claimants have been injured or even used the product at issue.
• What can be done about the problem beyond census forms and fact sheets?
• What about using a more robust Rule 11 as applied to attorneys with large inventories in MDLs, or having early random audits of claims, to assure that counsel has done due diligence on all their clients?
• This appears to be a significant problem in the Camp Lejeune litigation: to what extent is that case different, and what lessons can be learned from it.

Panel Four Guests:

• Moderator: Jay Tidmarsh, University of Notre Dame
• Honorable Karen Caldwell, Chair of Judicial Panel on Multidistrict Litigation (JPML), United States District Court, Eastern District of Kentucky
• Lynn Baker, University of Texas
• Patrick Luff, Luff Law Firm
• John Beisner, Skadden, Arps
• Scott DeNardo, Archer Systems

Friday April 12, 2024

8:00 a.m. – 8:45 a.m.

Breakfast

8:45 a.m. – 9:00 a.m.

Opening Remarks

9:00 a.m. – 10:15 a.m.

Panel Five: Litigation Finance

• Update on Litigation Finance: One part of this panel would be on what Chief Judge Connelly is doing regarding litigation finance in patent cases.
• Do patent cases present more or less of a concern than other cases?
• In patent as well as some other cases, does the proportion of litigation funding become so significant that it raises questions as to whether the funder should be named as the real party in interest under Rule 17?
• When the funding is for the attorneys, what should be disclosed and to whom should it be disclosed?
• If control is the issue, do rules like New Jersey’s, which requires counsel to affirm that there is no undue control, do the job?
• Might courts issue local rules requiring counsel to affirm that, if there is any litigation financing in the case, the client and/or counsel affirm that there are court-approved specific provisions in the financing agreement that seem likely to assure that the client controls the litigation?
• Last, the litigation funding order in the 3M case appears to limit the amounts that funders advance to claimants; do federal judges have that power in non-class cases, or do state laws provide the only limits?

Panel Five Guests:

• Moderator: Roger Trangsrud, George Washington University Law School
• Phil Goldberg, Shook Hardy & Bacon
• Sarah Lieber, JBSL Legal Finance LLC
• Maya Steinitz, Boston University
• Samir Parikh, Lewis & Clark Law School
• Alex Walsh, Walsh Law

10:30 a.m. – 12:15 p.m.

Panel Six: Management of Mega Mass Torts: Camp Lejeune and 3M Ear Plugs

• How should Mega-Mass Tort cases be managed?
• For example, what approach did the transferee judges take in the 3M earplug litigation, the opiate litigation, and the Camp Lejeune litigation?
• What worked and what did not work well?
• What data from resolved cases about how the level of attrition in mass torts cases exists, and what role, if any, should those data play in the design of management in future MDL tort cases?

Panel Six Guests:

• Moderator: Jay Tidmarsh, University of Notre Dame
• Honorable Eldon E. Fallon, United States District Court, Eastern District of Louisiana
• Jennifer Hoekstra, Aylstock, Witkin, Kries & Overholtz
• Aviva Wein, Assistant General Counsel, Johnson & Johnson, Litigation Policy – Risk Management
• Randi Ellis, Special Master, Randi S. Ellis, LLC
• Deborah Hensler, Stanford University