1. Settling Strategies for MDLs
Cathy Yanni, Hon. Richard Kramer, Mark
Robinson, Stu Gordon, Mike Healy
July 29, 2015
2. Effective Strategies for MDL Settlements
• Settlement by Necessity
• Getting the Process Started
• Getting the Negotiations Started
• Obstacles to Mass Tort Settlements
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3. Settlement by Necessity
• MDLs vary in size from 20 plaintiffs to 70,000 or more,
as in Transvaginal Mesh.
• Size and complexity make individual trials or arbitrations
impractical.
o Federal Courts try approximately 2000 cases a year
• Enormity necessitates resolution.
• Legal costs are staggering.
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4. Getting the Process Started
• Settlement Team vs. Trial Team
• Identify Plaintiff Steering Committee and Defendant
Settlement Counsel
• Involve MDL Judge, State Court Judge, Special Master,
or Magistrate Judge
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5. Getting the Process Started, cont.
• Plaintiff Fact Sheets: Keep it Simple
• Educating the Court – “Science Day”
• Bellwether Cases
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6. Selection of a Bellwether Pool
• Representative cases intended to predict outcomes of
larger pool
• Selection process
• Role in identifying medicine, science, and regulatory
compliance issues
• Effect on valuation factors
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7. The Framework for Negotiations
• Identifying key negotiators on both sides of the aisle
• Open information exchange:
o Product identification
o Realistic Representation of Types of Injuries
• Establishing the settlement grid
• Mechanism for Administering Settlement
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8. The Framework for Negotiations, cont.
• Early involvement of lien resolution company
• Educating the Special Master on valuation factors
• Analyzing controlling law: statute of limitations, punitive
damages, caps
• Insurance coverage: Identify potential coverage
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9. Establishing Settlement Values
• Reconciling expectations among the parties
• Common valuation factors: Per case average
• Influence of the FDA’s posture toward manufacturer’s
conduct
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10. Establishing Settlement Values, cont.
• Inventory settlements outside the mass settlement
process
• Individual vs. Global settlement
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11. Obstacles to Mass Tort Settlements
• Opt-outs
o The “blow-out” clause - participation rate
o Clawbacks
o Ethical considerations
• Continuing Involvement of the Court
o Retaining Jursidiction
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Editor's Notes
Cathy to introduce Panel and topics and Settlement by Necessity
Settlement by Necessity…: Cathy
Settlement Team vs. Trial Team: Stu, Mark, Mike
Identifying… Stu, Mark, Mike
Involve MDL…Judge
Plaintiff Fact Sheets: Mark
Educating Court: Stu, Mike
Bellwether: Judge
Representative Cases…: Judge
Selections Process…: Judge, others to join in
Role in identifying…: Stu, Mike
Effect valuation…: All
Identifying Key…: Mark, Mike, Stu
Open Info Exchange….: Mike
Establishing grid…: Mark, Mike, Stu
Mechanism for admin….: Cathy
Early Lien involvement…: Mark
Educating Special Master….: Cathy, Judge
Analyzing law…: Mike, Stu
Insurance Coverage…: Mike Stu
Reconciling Expectations…: Cathy, Judge
Common Valuation…: All
Influence FDA…: Mike, Stu
Inventory Settlements…: Mark, Stu, Mike
Individual v Global…: Judge
Opt-outs…: Mark, Mike, Stu
Court Involvement…: Judge
