Special Invitation-Only Bench-Bar Roundtable Summit Addressing Likely Surges of Tag-Along Filings in Mass-Tort MDLs

Special Invitation-only Bench-Bar Roundtable Summit Addressing Likely Surges in Tag-Along filings in Mass-Tort MDLs

Northwestern University School of Law, August 8, 2024

The Center will hold a Special Invitation-Only Bench-Bar Roundtable Summit Addressing Likely Surges of Tag-Along Filings in Mass-Tort MDLs under the leadership of Ken Feinberg at the Northwestern University Pritzker School of Law on August 8, 2024. Although there appears to be a consensus among the defense and plaintiff bars that a problem exists, there is much disagreement about its causes and extent. Twenty-five plaintiff and defense “lead counsel” in large mass-tort MDLs (e.g., 500 or more actions) and six special masters along with five recognized top judges will tackle the issues head on and hammer out consensus solutions.

Those invited to the roundtable summit will each comment on assigned topics at the first two plenary sessions. The discussions will be moderated by Professors Adam Hoeflich and Zachary Clopton. Following each of the first two plenary sessions, Ken Feinberg and Deborah Greenspan will hold breakout sessions to work separately with the plaintiff lawyers, defense lawyers, and judges achieving as much consensus as possible. Ken Feinberg will lead the discussion at the final plenary session.

The summit will address Topics 1 and 2 during the first plenary session and Topics 3 and 4 during the second plenary session.

Topic 1 — distinguishing frivolous and meritless claims based on specific grounds (e.g., fraudulent, statute of limitations, questionable evidence of exposure or injury)
Topic 2 — estimating the volume of claims that may be frivolous or meritless– how far apart are the estimates of plaintiffs and defendants (e.g., actions dismissed and claims-administration data on number of claims not approved)
Topic 3 — developing a tripwire, which automatically identifies claims that likely are frivolous or meritless, e.g., using MDL Centrality or Rubris to automatically produce an alert when a claim has not included certain filing information
Topic 4 — potential solutions:
developing an automatic procedure that segregates claims likely frivolous or meritless for expedited disposition based on criteria agreed upon by the parties, which may include PSC consideration and review, remand, or an expedited show-cause dismissal procedure;
requiring filing fee for every action filed, including for actions in registries;
eliminating “direct filing” from “outside” districts and establishing an expedited vetting procedure in the transferor courts;
requiring stronger evidentiary showing of exposure and injury as part of the plaintiff fact sheets; and
court gives notice that it will summarily impose a heavy fine sua sponte on a law firm for repetitive filings of frivolous or meritless claims in accordance with Rule 11(c)(3) “to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.”

CHATHAM HOUSE RULE

The roundtable summit will be held under the Chatham House Rule: “[P]articipants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), or that of any other participant, may be revealed.”

Registration

The registration fee for the roundtable summit is $1,750, which includes conference materials, a continental breakfast, coffee breaks, lunch, a group dinner on Wednesday evening, and grab-and-go snacks at adjournment.

CLE

The New Jersey state bar has approved 8 CLE credits (400 minutes) for attending the conference.

Roundtable Summit Details

Agenda

Wednesday Evening: Reception (6:00 pm); Dinner (6:30 pm) Morton’s The Steakhouse, 65 E. Wacker Place. — Rubris, Inc. Sponsor

Thursday — Roundtable Summit, Northwestern University Pritzker Law School, 375 E. Chicago Ave., RB 180 — Arthur Rubloff Building

7:45 am — 8:30 am: Breakfast (Outside RB 180)

8:30 am – 8:45 am: Opening remarks

8:45 am – 10:00 am: Plenary session on first two topics (definition and frequency): Moderator Monica Haymond – 4-minute remarks from speakers List of Topics

Topic 1 — Christopher Campbell (DLA Piper); Kelly Iverson (Lynch Carpenter LLP); Harley Ratliff (Shook Hardy & Bacon LLP); Hon. Joy Flowers Conti (Western District of Pennsylvania)
Topic 2 — John Yanchunis (Morgan and Morgan LLP); Fidelma Fitzpatrick (Motley Rice LLC)
Topic 3 — Tim Raab (Alvarez & Marsal); Emily Kent (pwc); Hon. Eldon Fallon (Eastern District of Louisiana)
Topic 4 — Ed Bell (Rubris Inc.); Adam Levitt (DiCello Levitt)
Topic 5 — Christopher Morris (Butler Snow LLP); Seth Katz (Burg Simpson LLP)

10:00 am – 10:15 am: Break

10:15 am – 10:50 am: Plaintiff Breakout Session (Ken Feinberg — RB 180); Defendant Breakout Session (Deborah Greenspan — Parillo Courtroom) [Judges and special masters free to attend either session]

10:50 am — 11:25 am: Plaintiff Breakout Session (Deborah Greenspan — RB 180); Defendant Breakout Session (Ken Feinberg — Parillo Courtroom)

11:30 am – 12:00 pm: Lunch (Outside RB 180)

12:00 pm – 1:30 pm: Plenary session on third and fourth topics (tripwire and possible solutions – Moderator Zachary Clopton – 4-minute remarks from speakers List of Topics

Topic 1 — Andy Birchfield (Beasley Allen Law Firm); Ben Hulse (Norton Rose Fulbright LLP); Hayden Coleman (Dechert LLP)
Topic 2 — Donna Welch (Kirkland & Ellis LLP); Chris Seeger (SeegerWeiss LLP)
Topic 3 — Jen Alpert (Rubris Inc.); Al Togut (Togut, Segal & Segal LLP); Brandon Henry (Wagstaff & Cartmell LLP)
Topic 4 — Crystal Parker (Paul, Weiss, Rifkind, Wharton & Garrison LLP); Diandra “Fu” Debrosse (DiCello Levitt); Hon. Joy Flowers Conti (Western District of Pennsylvania)
Topic 5 — Richard North (Nelson Mullins Riley & Scarborough LLP); Hon. Eldon Fallon (Eastern District of Louisiana)
Topic 6 — Paul LaFata (Dechert); Kaspar Stoffelmayr (Bartlitt Beck LLP)
Topic 7 — Andy Bayman (King & Spalding LLP); Virginia Buchanan (Levin Papantonio); Hon. Thomas Vanaskie (Stevens & Lee LLP)

1:30 pm – 2:15 pm: Plaintiff Breakout Session (Ken Feinberg — RB 180); Defendant Breakout Session (Deborah Greenspan — Parillo Courtroom) [Judges and special masters free to attend either session]

2:15 pm – 3:00 pm: Plaintiff Breakout Session (Deborah Greenspan — RB 180); Defendant Breakout Session (Ken Feinberg — Parillo Courtroom)

3:00 pm – 3:15 pm: Break

3:15 pm – 4:30 pm: Concluding plenary session (Moderator Ken Feinberg)

4:30 pm – Adjournment

Participants

BIOS

Feinberg, Ken — Mediator
Greenspan, Deborah — Mediator
Clopton, Zachary — Moderator, Northwestern University School of Law
Haymond, Monica — Moderator, Northwestern University School of Law
Hon. Caldwell, Karen — Eastern District of Kentucky
Hon. Conti, Joy Flowers — Western District of Pennsylvania
Hon. Fallon, Eldon — Eastern District of Louisiana
Hon. Lee, John — Seventh Circuit Court of Appeals
Hon. Vanaskie, Thomas — Third Circuit Court of Appeals (ret.)
Hon. Vratil, Kathryn — District of Kansas
Alpert, Jen — Rubris, Inc.
Bell, Ed — Rubris, Inc.
Bayman, Andy — King & Spalding LLP
Birchfield, Andy — Beasley Allen Law Firm
Buchanan, Virginia — Levin Papantonio
Campbell, Christopher — DLA Piper
Coleman, Hayden — Dechert LLP
Debrosse, Diandra “Fu” — DiCello Levitt
Fitzpatrick, Fidelma — Motley Rice LLC
Hulse, Ben — Norton Rose Fulbright LLP
Iverson, Kelly — Lynch Carpenter LLP
Katz, Seth — Burg Simpson PC
Kent, Emily — pwc
LaFata, Paul — Dechert
Levitt, Adam — DiCello Levitt
Morris, Chris — Butler Snow LLP
North, Richard — Nelson Mullins Riley & Scarborough LLP
Parker, Crystal — Paul, Weiss, Rifkind, Wharton & Garrison LLP
Raab, Tim — Alvarez & Marsal
Ratliff, Harley — Shook Hardy & Bacon LLP
Ruane, Sarah — Wagstaff & Cartmell LLP
Seeger, Chris — SeegerWeiss LLP
Stoffelmayr, Kaspar — Bartlit Beck LLP
Togut, Al — Togut, Segal & Segal LLP
Welch, Donna — Kirkland & Ellis LLP
Yanchunis, John — Morgan and Morgan LLP

Materials

Plenary Sessions “A” and “B” Topics (Download)

Statistical Data

Statistical Chart — Total Numbers of Individual Actions Filed in MDLs Annually Since 1998; Rabiej Litigation Law Center (Download)
Mentor Corp. MDL No. 2004, MDL Docket No. 2004 4:08-MD-2004 (CDL) (September 7, 2016) (obiter dictum — court’s intuition based on experience with two MDLs and fifteen years on the bench that a “material number of non-meritorious cases are being filed because of consolidation” and therefore “perhaps caution is also warranted”) Details

Defense’s Views

Lawyers for Civil Justice comments submitted to Advisory Committee on Civil Rules, identifying MDLs with large volume of unsubstantiated claims, pp.1-6 (February 16, 2024) (Download)
Data on Unsubstantiated Filings from Excerpts from Product Liability Advisory Council’s Comment on Proposed Rule 16.1 Submitted to Advisory Committee on Civil Rules (February 16, 2024) Details
Bayer comments submitted to Advisory Committee on Civil Rules, raising concerns with volume and handling of unssubstantiated claims (October 15, 2023) (Download)

Plaintiffs’ Views

American Association for Justice comments submitted to Advisory Committee on Civil Rules, challenging claims of large volumes of unsubstantiated claims, p. 4 (February 15, 2024) (Download)
Mark Lanier’s comments submitted to Advisory Committee on Civil Rules addressing volume of unsubstantiated claims, pp. 3-4 (January 23, 2024) (Download)

Potential Solutions

American Association for Justice comments submitted to Advisory Committee on Civil Rules, suggesting inactive docket to isolate possibly unsubstantiated claims, pp. 3-4 (February 15, 2024) (Download)
Hon. Casey Rodgers comments submitted to Advisory Committee on Civil Rules, cautioning that freely granting tolling agreements for claims filed in an inactive docket makes vetting claims difficult, p. 2 (February 13, 2024) (Download)
Lawyers for Civil Justice proposal to require an “early check into the most basic elements of the claims” submitted to Advisory Committee on Civil Rules (September 18, 2023) (Download)
In Re: Bard Implanted Port Catheter Prod. Liab. Litig., MDL No. 3081, Case Management Order No. 8, pp. 4-5 (Nov. 11, 2023) (streamlined review process using central-exchange information platform, including plaintiff’s and defendant’s profile forms), compare with Comment on Proposed Fed. R. Civ. 16.1, Bayer Corp., pp. 3-4 (Oct. 15, 2023) (describing six-month review process experienced in Mirena MDL).
Franatovich v. Allied Trust Ins. Co., Civ. Action No. 22-2552, Eastern District of Louisiana (Mar. 16, 2023) (court imposes Rule 11 sanction summarily on law firm for filing frivolous actions, among other misconduct)
Roundup MDL NO. 2741, Order Re: June 6 Hearing (June 4, 2024) (raising concerns that law firm took on more cases than it could competently handle) (Download)
Paraquat MDL N0. 3004, Case Management Order No. 18 (May 15, 2023) (order requiring parties to meet to “ensure that all viable claims against Defendants are fairly and efficiently adjudicated, and to guard against potential misuse of the multidistrict litigation vehicle”) Details
Rule 11, Highlighted Excerpts
Excerpt from Work-in-Progress Best Practices Implementing Fed. R. Civ. P. 16.1, regarding frivolous and meritless filings in mass-tort MDLs, Rabiej Litigation Law Center (July 30, 2024) Details; Full text of Work-in-Progress Best Practices, Rabiej Litigation Law Center (July 30, 2024) Details

Registration

Special Invitation-Only Bench-Bar Workshop Addressing Likely Surges of Tag-Along Filings in Mass-Tort MDLs

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Special Invitation-only Bench-Bar Roundtable Summit Addressing Likely Surges in Tag-Along filings in Mass-Tort MDLs

CHATHAM HOUSE RULE

Registration

CLE

Roundtable Summit Details

Statistical Chart — Total Numbers of Individual Actions Filed in MDLs Annually Since 1998; Rabiej Litigation Law Center (Download)

Data on Unsubstantiated Filings from Excerpts from Product Liability Advisory Council’s Comment on Proposed Rule 16.1 Submitted to Advisory Committee on Civil Rules (February 16, 2024) Details

Bayer comments submitted to Advisory Committee on Civil Rules, raising concerns with volume and handling of unssubstantiated claims (October 15, 2023) (Download)

Special Invitation-Only Bench-Bar Workshop Addressing Likely Surges of Tag-Along Filings in Mass-Tort MDLs