Mass Litigation
Why Attend?
In this new course of study, a distinguished faculty of judges, academics, practitioners, and others examines both the procedural and the substantive sides of the rapidly evolving field of mass litigation.
The course considers class actions, not just under the Class Action Fairness Act (CAFA), but also as they affect ERISA and subprime claims. It discusses discovery (especially as it relates to electronic records), sanctions, case management, evidentiary issues, and the use of expert testimony. Attention is also paid to negotiation of settlements, mediation of claims, post-resolution management of claims and the distribution of proceeds, and punitive damages.
On the substantive side, the course updates registrants on litigation over a number of issues, discusses the increasing use of the Alien Tort Claims Act and Qui Tam proceedings, offers novel theories for recovery, and considers liability for climate change.
International issues receive attention as well. The faculty discusses foreign claims and defendants, foreign product recalls, and cross-border discovery (with emphasis on how foreign privacy laws affect U.S. discovery rules).
Planning Chairs
(also on faculty)
Sol Schreiber, Milberg LLP, New York
J. Russell Jackson, Skadden, Arps, Slate, Meagher & Flom LLP, New York
Francis E. McGovern, Professor, Duke University School of Law, Durham, North Carolina
Faculty
Judges
Retired U.S. District Judge Sam C. Pointer, Jr., had accepted an invitation to be on the faculty of this program. It is with great sadness that we advise you of Judge Pointer’s death on March 15.
Lee H. Rosenthal, U.S. District Judge, Houston
Barbara Jacobs Rothstein, Director, Federal Judicial Center, Washington, D.C.; U.S. District Judge, Seattle
Shira A. Scheindlin, U.S. District Judge, New York
Practitioners, Academics, and Others
David M. Bernick, Kirkland & Ellis LLP, New York and Chicago
Andrew T. Berry, McCarter & English, LLP, Newark, New Jersey
Sheila L. Birnbaum, Skadden, Arps, Slate, Meagher & Flom LLP, New York
Elizabeth J. Cabraser, Lieff Cabraser Heimann & Bernstein, LLP, San Francisco
David. R. Cohen, David R. Cohen Co. LPA, Cleveland
James F. Conlan, Sidley Austin LLP, Chicago
M. James Daley, Redgrave Daley Ragan & Wagner LLP, Kansas City
Margaret G. Farrell, Special Master; Adjunct Professor of Law, American University, Washington College of Law, Washington, D.C.
Lori G. Feldman, Milberg LLP, New York
Michael B. Gerrard, Arnold & Porter LLP, New York
Mark Herrmann, Jones Day, Chicago
John M. Kobayashi, The Kobayashi Law Firm, P.C., Denver
Joseph T. McLaughlin, JAMS Resolution Center, New York
Richard A. Nagareda, Professor of Law and Director of Litigation and Dispute Resolution Program, Vanderbilt University Law School, Nashville, Tennessee
Barry R. Ostrager, Simpson Thacher & Bartlett LLP, New York
Joseph F. Rice, Motley Rice LLC, Mt. Pleasant, South Carolina
Randi Ilyse Roth, Complex Settlements, P.C., St. Paul, Minnesota
James L. Stengel, Orrick, Herrington & Sutcliffe LLP, New York
Laurie Strauch Weiss, Orrick, Herrington & Sutcliffe LLP, New York
Peter H. Woodin, Neutral Mediator and Arbitrator, JAMS, New York
ALI-ABA Staff Attorney: William S. Stevens, Assistant Director, Office of Courses of Study (wstevens@ali-aba.org)
Most presentations include a 10-15 minute panel discussion.
Program Schedule
THURSDAY, MAY 29, 2008
7:30 a.m. Registration and Buffet Breakfast
Webcast Segment A
8:30 a.m. Introductory Remarks and Course Overview
Morning Panel I: Mr. Schreiber, Chair; Judges Rosenthal and Rothstein; Professor McGovern; and Messrs. Jackson and Stengel
8:45 a.m. Settlement Classes and New Developments in Restylization, Summary Judgment, Timing, and Expert Witnesses - Judge Rosenthal
9:45 a.m. The Mass Tort Working Group, Ten Years Later - Mr. Stengel
10:30 a.m. Networking Break
Morning Panel II: Mr. Schreiber, Chair; Judge Scheindlin; Messrs. Jackson, Kobayashi, and McLaughlin; and Ms. Strauch Weiss
10:45 a.m. Foreign Product Recalls - Ms. Strauch Weiss
11:30 a.m. Litigation Updates: Pharmaceutical and Medical Devices, Lens Solutions, MTBE, Tobacco, Automotive, Lead Paint, Headsets, and Wireless Telephones - Mr. Jackson
12:30 p.m. Lunch Break
Webcast Segment B
Afternoon Panel I: Mr. Jackson, Chair; Judges Rosenthal and Rothstein; Messrs. Berry, Gerrard, and Woodin
2:00 p.m. Climate Change Liability - Mr. Gerrard
2:45 p.m. Management of Mass Actions in Federal and State Courts - Mr. Woodin
3:15 p.m. Networking Break
Afternoon Panel II: Judge Scheindlin, Chair; Professor Farrell; Messrs. Daley, Kobayashi, and McLaughlin; and Ms. Feldman
3:30 p.m. Increasing Use of Alien Tort Claims Act - Mr. McLaughlin
4:15 p.m. Class Actions Involving ERISA and Subprime Claims - Ms. Feldman
5:15 p.m. Effective Use of Rule 706 Experts - Mr. Kobayashi
6:00 p.m. Adjournment for the Day; Networking Reception for Registrants and Faculty
FRIDAY, MAY 30, 2008
8:00 a.m. Buffet Breakfast
Webcast Segment C
Morning Panel I: Professor McGovern, Chair; Judges Rosenthal and Scheindlin; Messrs. Bernick, Herrmann, and Stengel; and Ms. Strauch Weiss
8:30 a.m. The Role of the Judicial Panel (and State Counterparts) in Managing Mass Litigation - Mr. Herrmann
9:00 a.m. Adjudicating Claims in Mass Actions Addressing Bellwether Tort Cases and Statistical Adjudication - Mr. Stengel
9:45 a.m. Sanctions and Persuasion; Production of Electronic Records - Judge Scheindlin
10:45 a.m. Networking Break
Morning Panel II: Judge Rothstein, Chair; Judge Scheindlin; and Messrs. Daley and Jackson
11:00 a.m. Cross-Border Conflicts Relating to Mass Discovery, Including Foreign Data, Privacy, and Protection Regulations - Mr. Daley
11:45 a.m. Increasing Use of Novel Theories: Medical Monitoring, Public Nuisance, Unjust Enrichment, Unmanifested Defects, and Consumer Protection Statutes - Mr. Jackson
12:30 p.m. Lunch Break
Webcast Segment D
Afternoon Panel I: Professor McGovern, Chair; Judge Rosenthal; Mss. Birnbaum and Cabraser; and Messrs. Conlan, Herrmann, and Ostrager
2:00 p.m. Bankruptcy Issues in Mass Claims - Mr. Conlan
2:45 p.m. Insurance (Primary and Excess) Disputes in Mass Claims - Mr. Ostrager
3:00 p.m. Networking Break
Afternoon Panel II: Professor McGovern, Chair; Judge Rothstein; Professor Farrell; Messrs. Berry, Herrmann, and Rice; and Mss. Birnbaum and Cabraser
3:15 p.m. Art of Negotiating Mass Litigation - Ms. Birnbaum and Mr. Rice
4:15 p.m. Update on the ALI Project on Aggregate Litigation - Mr. Berry
4:45 p.m. Coping with the Class Action Fairness Act - Mss. Birnbaum and Cabraser
5:30 p.m. Adjournment for the Day
SATURDAY, MAY 31, 2008
8:00 a.m. Buffet Breakfast
Webcast Segment E
Panel I: Mr. Jackson, Chair; Judge Rosenthal; Professors Farrell and Nagareda; and Mr. Berry
8:40 a.m. Evidentiary Problems in Mass Litigation - Professor Nagareda
9:00 a.m. Increasing Use of Qui Tam Claims - Mr. Berry
9:45 a.m. The Attorney-Client Relationship in the Mass Litigation Field - Professor Nagareda
10:45 a.m. Networking Break
Panel II: Mr. Jackson, Chair; Judge Rothstein; Professor McGovern; Messrs. Bernick, Cohen, Herrmann, and Kobayashi
11:00 a.m. Punitive Damages After Williams - Mr. Herrmann
11:45 a.m. Post-Settlement Problem Areas - Creating Effective Distribution and Claims Facilities - Mr. Cohen
12:30 p.m. Foreign Claimants and Foreign Defendants - Mr. Bernick
1:00 p.m. Mediating Mass Tort Claims - Professor McGovern
1:45 p.m. Adjournment
Total 60-minute hours of instruction: 19.25, including one full hour on ethics and professional responsibility issues
Suggested Prerequisite: Substantial experience in legal practice in subject matter
Educational Objective: Acquisition of knowledge and skills to develop proficiency as a practitioner; maintenance of professional competence as a practitioner; provision of information on recent legal developments
Level of Instruction: Advanced
