Bolch Judicial Institute
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Materials

General Session Materials:
Cumulative Multidistrict Litigation Terminated Through Sept. 30, 2019
Pending MDL Dockets By Actions Pending Feb. 14, 2020
Pending MDL Dockets By District Feb. 19, 2020
Pending MDL Dockets By MDL Type Feb. 14, 2020

SESSION 1: The Decision to File – Purpose and timing of MDL; strategic decisions re: filing state actions or seeking MDL; timing and venue of MDL; motions to centralize; tag-along cases; jurisdiction and choice of law

SESSION 2: The JPML Process – Scheduling JPML hearing and lawyer presentations; how panel chooses transferee judge; trends in centralizing cases; role of Rules of Procedure of the United States Judicial Panel on Multidistrict Litigation
Panel Rules Effective Oct. 4, 2016
Summary of Panel Rules Revised Oct. 4, 2010
JPML Calendar Year Statistics – 2018
JPML Calendar Year Statistics – 2019

Lunch Session: Handling Media Attention – How to approach traditional and social media outlets; confidentiality issues; gag orders; disputes over document sealings; settlement orders
New breed of investor profits by financing surgeries for desperate women, Alison Frankel and Jennifer Dye, Reuters, Aug. 18, 2015
Exposing the underbelly of mass torts litigation, Alison Frankel, Reuters, May 24, 2016
Can this judge solve the opioid crisis, Jan Hoffman, The New York Times, Mar. 5, 2018
In NFL concussion appeal, 3rd Circuit confronts scope of MDL, class action judges’ power, Alison Frankel, Reuters, Feb. 7, 2019
State AGs pose big obstacle for novel opioids negotiating class proposal, Alison Frankel, Reuters, June 26, 2019
States Clash with Cities over Potential Opioids Settlement Payouts, Jan Hoffman, The New York Times, Aug. 5, 2019
What to Know about the Landmark Opioid Trial Starting Monday, Jan Hoffman, The New York Times, Oct. 20, 2019
37 State AGs accuse CenturyLink of ‘weaponizing’ class settlement to evade AG suit, Alison Frankel, Reuters, Nov. 26 2019
Payout From a National Opioids Settlement Won’t Be as Big as Hoped, Jan Hoffman, The New York Times, Feb. 17, 2020

SESSION 3: The First Six Months of an MDL – Court organization and responsibilities of court officers, e.g., magistrate judge, clerk of court, and court-appointed special masters on discovery or settlement; appointing leadership; collaboration and meet and confers; use of census data; census for leaders; plaintiff profile forms and fact sheets
Docetaxel PTO No. 85 for PTO No. 71A & Priv Log Deficiencies of Non-Bellwether Plaintiffs Nov. 13, 2018
FXG Initial Scheduling Order Nov. 15, 2005
Hill’s Pet Nutrition Preliminary Practice And Procedure Order June 7, 2019
Incretin Mimetics (Byetta) Order Granting Motion for Order Implementing PFS June 17, 2013
Incretin Mimetics (Byetta) Order appointing PSC Oct. 21, 2013
Incretin Mimetics (Byetta) Order Governing Filing of Master Complaint Dec. 2, 2013
Incretin Mimetics (Byetta) Initial Scheduling Order re General Causation Feb. 18, 2014
Incretin Mimetics (Byetta) CMO Establishing Common Benefit Fee & Expense Fund Aug. 26, 2014
INVK CMO No. 6 Common Benefit Fee and Expense Funds Mar. 21, 2017
INVK Amended CMO No. 6 Common Benefit Fee and Expense Funds Jan. 23, 2018
Lipitor Amended CMO No. 6 May 22, 2014
Lipitor CMO No. 6B Amendment to CMO No. 6 May 29, 2014
Pacquiao-Mayweather Order Appointing Lead and Liaison Counsel Dec. 11, 2015
Pacquiao-Mayweather Order Accepting the Filing of Consolidated Complaints and Scheduling Order July 7, 2016
PPI CMO No. 33 Selection of Bellwether Discovery and Trial Cases Nov. 20, 2019
PPI CMO No. 35 Scheduling Order Bellwether July 1, 2019
PPI CMO No. 36 Amended Scheduling Order Jan. 24, 2020
PPI CMO No. 9 PFS (2 Stages) Feb. 5, 2018
Skechers Order Establishing Plaintiffs’ Fact Sheet Motion and PFS May 3, 2012
Skechers Order re Early Mediation and Case Selection May 3, 2012
Skechers PPO No. 2 Service and Direct Filing May 3, 2012
Skechers PPO No. 3 Practice and Procedures – General May 3, 2012
Skechers PPO No. 6 Common Benefit Fund May 3, 2012
Skechers PPO No. 7 Expenses May 3, 2012
Skechers PPO No. 8 Tolling Agreement May 3, 2012
Skechers Protective Order May 3, 2012
Skechers Scheduling Order No. 1 May 3, 2012
Vioxx PTO No. 6 PSC Leadership Order Apr. 8, 2005
Zoloft PTO No. 15 Joint Discovery & Scheduling Plan Nov. 16, 2012
Zoloft PTO No. 20 Amending PTO No. 15 re Joint Discovery & Scheduling Plan Feb. 25, 2013
Zoloft PTO No. 23 Amending PTOs 15 & 20 re Joint Discovery & Scheduling Plan Apr. 1, 2013

SESSION 4: Case Management – Breakout Sessions – Role of court in organizing attorneys: appointment of lead counsel, PSC, and other executive committees; managing MDL, including court order governing ongoing timekeeping and limits on expenses; judicial trends in appointing specific types of lawyers to leadership positions
Duties of Appointed Counsel 64 Loyola Law Review 1 (Spring 2018)

Plaintiff focus: Managing MDL and conferring with individual plaintiffs: appointment of PSC and executive committees and organization of subcommittees; who assigns lawyers to individual subcommittees, e.g., judge, lead counsel, executive committee; conferring with individual clients and communicating with all plaintiffs when appointed to a leadership position, e.g., disclosure of superior duty to the court and confidentiality limitations
What Do MDL Leaders Do Evidence from Leadership Appointment Orders David Noll Feb. 2, 2020

Defense focus: Strategy and management of MDL from General Counsel and outside counsel perspectives; joint defense groups; financial responsibility among multiple parties (trial expenses and settlement); organization of tasks

SESSION 5: Financing the Litigation – Financing obligations and cost estimates; direct and third-party financing; risk tolerance; creation and administration of common benefit fund; allocation of expenses among multiple parties
A bridge too far, An expert panel examines the promise and peril of third-party litigation financing, Judicature, Fall 2019 Vol 103 Num 3
New York City Bar Association – Working Group on Litigation Funding Report Feb. 28, 2020
Opioids Order re 3rd Party Lit Financing May 7, 2018

SESSION 6: Briefing on Legal Issues – Project management — coordinate research and drafting of all pleadings and motions, e.g., plaintiff and defendant fact sheets, motions in limine, evidentiary motions; oral argument preparation; appellate briefing; choice of law

SESSION 7: Case-Management Order – Scope of order and detailed procedural roadmap; Master Pleadings; time and expense reporting
Chinese Drywall PTO No. 1 Setting Initial Conference June 16, 2009
Chinese Drywall Order and Reasons Common Benefit Fees Jan. 10, 2020
Dicamba Herbicides CMO Crop Damage June 29, 2018
J&J Talcum CMO No. 1 Dec. 6, 2016
Juul CMO No. 2 Initial Case Census Nov. 19, 2019
Opioids CMO No. 1 Apr. 11, 2018
Roundup PTO No. 3 Nov. 23, 2016
Roundup PTO No. 9 Feb. 2, 2017
Taxotere PTO No. 65 Procedure for Severance of Multi-Plaintiff Cases Oct. 16, 2017
Taxotere CMO No. 12 Product ID Order Jan. 12, 2018
TRT CMO No. 20 Master Pleadings Mar. 29, 2017
TRT CMO No. 9 Plaintiff Fact Sheets and Records Authorization May 20, 2018
Viagra PTO No. 5 Procedures for Direct Filing, Master Pleadings, and Service of Process Aug. 10, 2016
Xarelto PTO No. 1 Setting Initial Conference Dec. 17, 2014
Xarelto PTO No. 11 Bundling of Complaints and Answers May 4, 2015
Zofran Order No. 11 PFS, Initial Production of Documents by Plaintiffs, Execution of Authorization May 26, 2016
Zofran Order No. 14 Order Concerning Master Pleadings May 18, 2016
Zoloft PTO No. 15 Joint Discovery and Scheduling Plan Nov. 16, 2012

SESSION 8: Document Review and Privilege Logs – Institution and monitoring of litigation hold; vendor selection and review; ESI protocol negotiations; selection of custodian list; discovery negotiations; document review; discovery log; responding to document, interrogatories, and admissions requests of plaintiffs; review of privilege logs; transparency issues; confidentiality
3M PTO No. 12 TAR Protocol July 1, 2019
Docetaxel PTO No. 71A Plaintiffs Responsibilities Relevant to ESI Jan. 26, 2018
Intel PTO No. 4 Protocol for Document Collection and Production Oct. 18, 2018
Opioids Discovery Ruling No. 2 June 30, 2018
Opioids Discovery Ruling No. 3 July 17, 2018
Opioids Pharmacy Defendants’ Objections to Discovery Rulings No. 2 and No. 3 July 24, 2018
Opioids Manufacturer Defendants’ Joint Objections to the Special Master’s Discovery Rulings Nos. 2 and 3 July 24, 2018
Opioids Order re Disc. Ruling Nos. 2 & 3 Aug. 8, 2018
Skechers Discovery Order No. 1 General May 3, 2012
Skechers Discovery Order No. 2 ESI May 3, 2012
Skechers PPO No. 5 Preservation of Records May 3, 2012
TRT CMO No. 15 Protocol for ESI Nov. 6, 2014

SESSION 9: Fact Discovery – Identifying fact witnesses to depose; preparing outlines for depositions; deposing witnesses
Skechers PPO No. 4 Depositions May 3, 2012
Zoloft R&R No. 2 re ex parte Contacts with Witnesses and Deposition Protocols June 13, 2013

SESSION 10: Expert Discovery – Researching and retaining experts; overseeing preparation of expert disclosures; deposing expert witnesses
3M PTO No. 18 Initial Census Requirement, Oct. 22, 2019
Docetaxel PTO No. 70B Contact with Physicians Nov. 13, 2018
Opioids Order Establishing Deposition Protocol June 20, 2018
Opioids CMO Discovery and Trial Preparation Sept. 5, 2018
Opioids Order Expert Witness Disclosure Jan. 6, 2020

SESSION 11: Settlement – Timing; role of judge; use of mediators; project management, e.g., negotiations, principal players; remand
The What and Why of Claims Resolution Facilities, Francis McGovern, 57 Stanford Law Review 1361-1389, 2005
Opioids Memorandum Opinion Certifying Negotiation Class, Sept. 11, 2019

SESSION 13: Trial Preparation – Bellwether issues; expert consulting; review of trial candidates recommended by law firms
Judge Childs 2019 Year End MDL Statistics
Docetaxel CMO No. 14C Amendments to Trial Pool Selection Apr. 23, 2019
Zoloft PTO No. 44 Trial Pool Selection Protocol Dec. 4, 2013

SESSION 14: Post-Trial Payouts – Common benefit fund; class-action settlement funds; individual client payments; distribution process: use of claims administrators and other experts; criteria for disbursements; continuing responsibilities, lien reconciliation; attorney fees
Xarelto PTO No. 8 Post trial Payouts Feb. 13, 2015
Chinese Drywall Order and Reasons – Final Approval Jan. 10, 2020

SESSION 15: Unique Aspects of MDLs – E.g., class actions; parallel state court litigation
James G. Apple, Paula L. Hannaford, & G. Thomas Munsterman, Manual for Cooperation Between State and Federal Courts (1997), (pp. 15-34, 48-54, 129-49)
Eldon E. Fallon, Jeremy T. Grabill & Robert Pitard Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 (2008), passim
Federal Judicial Center, National Center for State Courts, & Judicial Panel on Multidistrict Litigation, Coordinating Multijurisdiction Litigation: A Pocket Guide for Judges (2013), (pp. 1-6, 8-13)
Paula L. Hannaford-Agor, Comment: Federal MCL Fourth and Suggestions for State Court Management of Mass Litigation (National Center for State Courts 2006), passim
Judicial Panel on Multidistrict Litigation & Federal Judicial Center, Ten Steps to Better Case Management: A Guide for Multidistrict Litigation Transferee Judges (2d ed. 2014), at 1, 3-10
Catherine R. Borden, Managing Related Proposed Class Actions in Multidistrict Litigation, FJC Pocket Guide, 2018, citing Manual for Complex Litigation, Fourth § 21.11 and 21.27 (2004) (pp. 6-8, 10-11)

SESSION 16: Advanced Certificate Small Group Sessions – for Advanced Certificate Attendees Only – Discuss hypothetical MDL scenarios (max 12 per group) and assignment due in 8 weeks
Vioxx Order and Reasons Aug. 14, 2007
Fairlife Order Appointing Interim Class Counsel Jan. 22, 2020