A CLE Presentation Comparing and Contrasting the Handling of Mass Torts Through Multidistrict Litigation and Chapter 11 Bankruptcy Proceedings

Duration: 3.25 hours with 15-minute intermission

PANELISTS

Judge Eldon E. Fallon (E.D. La.)

Judge Carl Barbier (E.D. La.)

Judge Sarah Vance (E.D. La.)

Judge Robert Drain (Bankr. S.D.N.Y.) (Ret.) (now at Skadden, Arps, Slate, Meagher & Flom LLP)

Judge Laurie Selber Silverstein (Bankr. D. Del.)

Judge Marvin Isgur (Bankr. S.D. Tex.)

Moderated by Judge Meredith S. Grabill (Bankr. E.D. La.)

Topic One: How did we get here?

** MDL: Whether it’s plaintiffs’ lawyers or defendants seeking an MDL, it’s ultimately the MDL panel that decides to create an MDL and assign it to a district (presumably based on factors including an individual judge’s experience & interest, a clerk’s office’s expertise, and/or any geographical concerns (where evidence or parties in interest are located, i.e., Deepwater Horizon MDL in EDLA)).

** Bankruptcy: Generous venue statute gives a company’s management and secured lenders options and they choose based on a variety of factors including but not limited to substantive circuit law; an individual judge’s experience, prior rulings on bankruptcy issues, and availability; a clerk’s office’s expertise; and/or any geographical concerns (where creditors are located).

** When an MDL defendant files a chapter 11 bankruptcy case: How do the MDL Judge and Bankruptcy Judge interact?

Topic Two: The First Days

** MDL: Initial Case Management Orders to establish protocols and structure, judge appoints steering committee(s)

** Bankruptcy: First-day relief to maintain status quo operations; United States Trustee appoints creditor committees

Topic Three: The Disputes

** MDL: All disputes related to clearly identified alleged tort (specific product or event); discovery is targeted (defendant only has to produce documents and witnesses once); bellwether trials binding on those litigants, not all claimants, but reveal data regarding strengths and weaknesses of claims to generate global settlement; if no settlement, then remand to state courts.

** Bankruptcy: All disputes relate to claims by and against company, not necessarily limited to the mass tort. Discovery will be targeted to curb cost and burden but because dealing with innumerable disputes, discovery from the company can be extensive. Ultimately, still targeted to reach a global settlement (i.e., plan confirmation), but that settlement incorporates more classes of claimants than just the tort claimants; end game is final order confirming a consensual or non-consensual plan reorganizing a company’s relationships with all creditors or dismissal of case.

** The role of insurance companies in the MDL process vs. bankruptcy process

** Use of mediation in the MDL process v. bankruptcy process

** Both in confirmation hearings under § 524 of the Bankruptcy Code and considering restrictions on a bankruptcy judge to decide wrongful death and personal injury claims, the District Court may be able to facilitate claims resolutions. What tools exist to enhance coordination between courts? Bellwether trials?

** Discovery-related issues as they are affected by privileges (plaintiffs’ attorneys can represent members of the Official Committee of Unsecured Creditors (the “Committee”) in a bankruptcy case individually)

** The role of the Plaintiffs’ Steering Committee in the MDL process vs. the role of the Committee in the bankruptcy case

** TIMING AND COSTS FOR EACH PROCESS: How long does this take and how much does it cost?

Topic Four: The Settlement & Standards for Judge’s Approval of Settlements

** MDL: Class settlement v. non-class opt-in settlements

** Bankruptcy: Consensual v. Nonconsensual plan confirmation process and issue of third party releases, Rule 23 (partnership with Art III and Art I), opt-in v. opt-out models, rapid pre-pack bankruptcies for non-debtor affiliates; cramdown

** How do lawyers get paid in the MDL process vs. the bankruptcy process? How are individual plaintiffs’ attorneys’ contingency fees treated (or should be treated)?

Topic Five: Appeals

** MDL: Limited appellate rights during case v. push for wider interlocutory appeals in MDLs

** Bankruptcy: Plan confirmation is final appealable order, but doctrine of equitable mootness can put limits on effectiveness of appeal

This CLE has been approved in Louisiana. Participants who attend from states other than Louisiana will be provided a certificate of participation and the CLE submission packet from Louisiana to file for credit in their own state.

The cost to attend is $75.00 for Federal Bar Association Members and Government / Public Interest Attorneys.  The fee for NonMembers is $125.00.  There is special pricing for Federal Judges, Federal Law Clerks, and FBA member law students.

To accommodate our out-of-town guests, a room block is available at the Intercontinental New Orleans, 444 St. Charles Ave., New Orleans. The hotel is within walking distance of the Courthouse. The preferred rate is $169.00 per night + tax. The link to reserve a room is

Passkey Link: https://book.passkey.com/e/51115730