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Managing Complex Litigation 2014: Class Actions; Mass Torts & MDL


Speaker(s): Brian S. Kabateck, Cathy Yanni, Francis E. McGovern, Gail E. Lees, Gretchen Freeman Cappio, Habib Nasrullah, Hon. Carl J. West (Ret.), Hon. Richard A. Kramer, Hon. Sandra Mazer Moss (Ret.), Michael Kelly, Michelle A. Childers
Recorded on: Oct. 21, 2014
PLI Program #: 57591

Twenty years ago, Gretchen Freeman Cappio was drawn to study law because she wanted to serve people in need of a strong voice in our nation’s legal system. Today, Gretchen is committed to serving her clients with the integrity and passion that led her to study law in the first place.

Gretchen is privileged to work on behalf of a diverse group of deserving clients. She only takes cases she truly believes in. Whether the case involves a family who paid a premium for a so-called environmentally-friendly car that actually spews toxins, a municipality that needs a corporation to clean up its own pollution, or hard-working fishers in need of representation against big oil, Gretchen is proud to serve her clients with integrity. Gretchen strives to be—and is humbled to have been called—a lawyer’s lawyer. She takes it as a powerful compliment when those in her own profession, as well as physicians, professors, parents and environmentalists, among others, repeatedly call on her when they are in need of excellent, caring representation in the face of long odds.

Gretchen takes on litigation that makes a difference, and she has achieved meaningful results.

The cutting-edge and complex matters she has litigated include Village of Rockton, Ill. v. Sonoco Prods. Co., No. 14-cv-50228 (N.D. Ill.), where she represents a town against a paper products company that left behind an environmental disaster and eyesore for the community. Additionally, Gretchen represented parents who discovered their children’s products were contaminated and unsafe in In re Mattel, Inc., No. 2:07-ML-01897 (C.D. Cal.) (multidistrict litigation regarding hazardous lead-contaminated and magnetic toys). In another prominent consumer class action, her work as co-lead counsel against a major national bank led to the settlement of In re JPMorgan Chase Mortg. Modification Litig., No. 1:11-md-2290 (D. Mass.), which resulted in improved home mortgage modification processes for certain homeowners nationwide.

Gretchen is a litigation leader with respect to privacy issues. She represented plaintiffs in Krottner v. Starbucks, where the Ninth Circuit found plaintiffs had standing to sue, holding that plaintiffs alleged a “credible threat of real and immediate harm stemming from the theft of a laptop containing their unencrypted personal data.” 628 F.3d 1139, 1143 (9th Cir. 2010). In another cutting-edge privacy case, Gretchen represented plaintiffs in Erickson v. Bartell Drug Co., 141 F. Supp. 2d 1266 (W.D. Wash. 2001), a class action brought on behalf of employees. Erickson established that an employer violated Title VII of the Civil Rights Act when its comprehensive insurance coverage plan singled out women and failed to cover certain prescriptions vital to women’s health care.

Whether representing employees, municipalities, or families facing difficult circumstances, Gretchen fights for justice and has a record of success. Gretchen works tirelessly to level the playing field for her clients, giving them a powerful voice in our legal system. Among Gretchen’s all-time favorite pieces of mail is a photograph of a satisfied client and her son holding a homemade, hand-written sign that simply says “Thank you Mrs. Cappio.”

2015 PRESENTATIONS

Panelist, HarrisMartin MDL Conference Volkswagen and Pharmaceutical Update: RICO and Additional Defendants, December 2, 2015

Panelist, Bridgeport Volkswagen Class Action & MDL Seminar – Diesel Emissions Scandal, November 23, 2015

Panelist, HarrisMartin Volkswagen Diesel Emissions Litigation Conference: RICO and Additional Defendants, October 27, 2015

Panelist, Law Seminars International, The Eleventh Annual Comprehensive Conference on Class Actions: “Data Breaches: Cases at the Intersection of Class Actions and Internet Technology,” June 4, 2015

Panelist, ABA Section of Dispute Resolution Meeting 17th Annual Spring Conference – Solutions in Seattle: A View From the Trenches: What’s Working and What’s Not Working with Mediators, April 16, 2015

PRACTICE EMPHASIS

  • Class Actions
  • Consumer and Employee Protection
  • Data Breach
  • Employment Law
  • Environmental Contamination
  • Employee Benefits and Retirement Security
  • Fiduciary Breach
  • Financial Products and Services
  • State and Local Government
  • Whistleblower

EDUCATION

Dartmouth College - B.A., magna cum laude, 1995

University of Washington School of Law - J.D., 1999


Cathy Yanni has extensive experience with class actions and multi-district litigation (MDL). In addition to extensive experience mediating class action matters, Ms. Yanni also acts as Special Master in large class actions and MDL. In her role as a Special Master, she has structured the case management process and supervised discovery. As Settlement Special Master in large class actions and MDLs, Ms. Yanni has designed, managed, and adjudicated settlement proceedings and allocation processes.

Representative Matters Include:
Pharmaceutical/Biotech/Medical Device Mass Torts

  • Special Master: administration and implementation of the settlement in the In re: DePuy Orthopaedics, Inc., ASR™ Hip Implant Products Liability Litigation. Appointed by The Hon. David A. Katz
  • Special Settlement and Discovery Special Master: appointed by The Hon. Dan Polster, Northern District of Ohio, in Gadolinium Contrast Dyes Product Liability Litigation, settled MDL and state court cases involving allegations of catastrophic personal injury and wrongful death
  • Mediator: appointed mediator by The Hon. Richard Kramer, SF Superior Court, in Gadolinium Medical cases MDL proceedings involving mediation and allocation; pharmaceutical manufacturers involved included Bayer, General Electric and Mallinckrodt
  • Mediator: appointed mediator in PPA MDL by the Hon. Anthony Mohr, Superior Court of California, Los Angeles County, for all remaining PPA cases (Phenylpropanolamine)
  • Mediator: appointed Federal Mediator in Baycol MDL by The Hon. Michael J. Davis, District of Minnesota
  • Mediator: Avandia, and allocated claims
  • Allocator: allocated claims arising out of the Yaz and Yasmin litigation
  • Mediator: over 1,000 Fen-Phen diet drug related cases
  • Settlement Special Master: Bextra MDL to allocate and distribute multi-million dollar settlement proceeds
  • Settlement Special Master: Ortho Evra MDL to design and implement allocation of multi-million settlement
  • Settlement Special Master: Zyprexa I, II MDL by the Hon. Jack Weinstein, Eastern District of New York, to design and implement claims administration process and allocation of over $800 million dollar settlement
  • Mediator: appointed Federal Mediator in Silicone Gel Breast Implant Litigation by The Hon. Denise Hood, US District Court Eastern District Michigan, to mediate cases arising out of the Dow Corning Settlement


Consumer Class Actions

  • Special Master/Mediator: consumer class actions involving multiple high-tech companies, Apple,Toshiba, Palm: claims concerning operating systems, iPod nano, iTunes gift cards, iPhone antenna smart phones, iPad data plans, privacy, apps, desktop and notebook computers, software, computer displays, and digital music players
  • Mediator: class actions involving elder abuse claims and nursing home understaffing issues
    Employment
  • Mediator: Polo Ralph Lauren California wage and hour and overtime pay class action lawsuit
  • Special Master/Mediator: wage and hour class actions involving financial institutions, insurance companies, retailers, automotive dealers, and vehicle rental companies; designed settlement process, allocated and adjudicated claims


Commercial Class Actions

  • Mediator: California Business and Professions Code §17200 cases involving financial institutions and automotive dealers
  • Mediator: class action (mediated in Guam) involving citizens of Guam and distribution of $90 million dollars of earned income tax credits
  • Mediator: cross-border, multi-national class action (mediated in Japan) involving Japanese conglomerate, Siapan, and U.S. companies’ banking dispute regarding transfer of assets

Background and Education:  Panelist, JAMS, San Francisco, 1998-present; Disovery Referee, San Mateo Superior Court, 1994-1997; J.D., Golden Gate University School of Law; Editor, Law Review; B.A., Mount Holyoke College; Dartmouth College; Honors Commendation


As a nationally recognized and respected consumer attorney, Brian Kabateck is a preeminent leader in the fight to ensure access to the justice system.  He’s a powerful advocate in the courtroom and at the California State Capitol for consumers’ rights and protections.

Mr. Kabateck’s vigorous litigation on behalf of his clients has netted more than a billion dollars in recoveries. He has won many multi-million dollar verdicts, judgments and settlements in the areas of personal injury, insurance bad faith, pharmaceutical litigation, wrongful death, class action, mass torts and disaster litigation.

Because of his deep knowledge of the law and dynamic speaking style, Mr. Kabateck is a frequent analyst for national, local and legal media outlets. He makes regular appearances on CNN, MSNBC, CBS, NBC, ABC, FOX and CW stations. In addition to his television exposure, Mr. Kabateck often speaks at seminars, law schools and industry events.

As the former President of the Consumer Attorneys of California (CAOC), Mr. Kabateck drew on his strong leadership abilities to bring change to some of the state’s most contentious problems. Under his direction, he brokered a consensus on issues including protecting patient safety and court funding. He has worked tirelessly with the California Legislature and California Department of Insurance to draft many laws for some of the state’s largest industries.

Mr. Kabateck’s ability to straddle the legal and political world has made him a strategic and outspoken advocate for tort reform. In November, voters will decide whether to overturn the decades old MICRA law which caps non-economic damages at $250,000. Mr. Kabateck is a leader in the fight to lift this outdated and misguided law that deprives the state’s most vulnerable victims from getting the compensation they deserve in medical malpractice cases.

Mr. Kabateck has extensive experience in all judicial forums throughout California.  He has argued cases before the California State Supreme Court, California Court of Appeal, Ninth Circuit Court of Appeals, and the Federal Circuit Court of Appeals.


Hon. Richard Kramer
San Francisco Superior Court

 

The Hon. Richard A. Kramer was appointed to the California Superior Court for the County of San Francisco on December 3, 1996. He has served as both a civil and a felony criminal trial judge and, since 2002, has presided over the Complex Litigation Department. Judge Kramer has also been an Associate Judge and Presiding Judge of the Appellate Division of the Superior Court, and served as a Justice pro tem of the California Court of Appeal.Judge Kramer graduated from the University of Southern California in 1969 (B.A., magna cum laude) and again in 1972 (J.D., Order of the Coif). He then practiced law in San Francisco for 24 years at Steefel, Levitt & Weiss, where he specialized in commercial litigation. Judge Kramer has been active in professional education for many years. He has taught the Rutter Group Civil Procedure Before Trial course since its inception in 1979 and has been a contributing author to the course handbook. He has taught numerous other courses for the Rutter Group, the California Judges’ Association, the California Continuing Education of the Bar, and other educational providers in many areas including civil procedure before trial, civil trial practice, class actions, criminal trial practice, consumer finance litigation, current developments in the law, drug and medical device litigation, evidence, electronic evidence, employment law, insurance bad faith, and unfair business practices. He is a frequent lecturer for both judicial and attorney continuing education programs throughout the country. Judge Kramer is a member of the Federal-State Judicial Council and served on the Appellate Advisory Committee of the California Judicial Council from 1998-2007.


Francis McGovern (B.A., Yale University; J.D., University of Virginia). Professor McGovern, a tenured professor of law at Duke Law School, is a practitioner, scholar, and teacher in the field of alternative dispute resolution and complex litigation. He was among the first in the nation to write about and to use alternative dispute resolution (ADR) techniques to improve the litigation process. As a court-appointed special master or neutral expert, he has developed solutions in most of the significant mass claim litigation in the U.S., including the DDT toxic exposure litigation in Alabama, the Dalkon-Shield controversy, and the silicone gel breast implant litigation. Working with the United Nations Compensation Commission, which was established to ensure that Iraq compensates citizens, businesses and government agencies for losses suffered in the first Persian Gulf War, Professor McGovern is a member of the executive committee of the board of directors of the American Arbitration Association.

Professor McGovern is the co-author of two published books, Successful Litigation Techniques and The Preparation of a Product Liability Case, and is the author of over 75 law review articles. Professor McGovern's most widely known contribution to the scholarship in complex litigation is his development of the seminal concept of "maturity" in mass torts–a concept generally accepted as critical in analysis of mass torts. He has given over 50 speeches in the last two years to academics, judges, and lawyers on issues ranging from international dispute resolution to an update of the law of product liability.


Gail E. Lees, co-chair of the Class Actions Practice Group of Gibson, Dunn & Crutcher, is a partner in the firm’s Los Angeles office. Ms. Lees has been named nationally in The Legal 500 and The Best Lawyers in America and listed as one of California’s Top Women Litigators by the California Daily Journal and one of Los Angeles’ “Superlawyers” by Los Angeles Magazine. She has served as a member of the firm’s Executive Committee, and she also has served as co-chair of the Consumer and Personal Rights Committee of the American Bar Association and a member of the Board of the Association of Business Trial Lawyers and the Institute for Corporate Counsel. Ms. Lees has more than thirty years’ experience in class actions and government investigations involving consumer and advertising fraud, unfair competition, privacy rights, product liability, and securities fraud issues.

Consumer Fraud Unfair Competition Law Act and Securities Litigation

Ms. Lees has been lead counsel on more than 100 class actions and government investigations involving fraud and misrepresentation claims.  Ms. Lees’ significant appellate experience includes representation of defendants in numerous cases before the California Supreme Court and the Ninth Circuit Court of Appeals, including the only successful First Amendment challenge to claims for unfair business practices under California Business & Professions Code Section 17200.

Publications and Speeches

Ms. Lees has spoken and published extensively on consumer fraud and trial practice topics, including most recently: Chapters on UCL and California Consumers Legal Remedies Act in Claims and Defenses (Rutter, 2012); “2011 Year-End Update on Class Actions” (Jan. 2012); “Consumer Class Action Life After Concepcion and Dukes” (Los Angeles County Bar Association, 2012); “The Future of Class Actions” (Association of Business Trial Lawyers, 2012); “Nationwide Privacy Class Action Dismissed in In re iPhone Application Litigation Based on Lack of Article III Standing” (September 2011); “Consumer Protection in the Courts, in the States and at the FTC” (NAD, 2010);   “2010 Fall Update on Class Actions: The Plaintiffs’ Bar on the Move” (Gibson Dunn Alert, 2010); “Warning--This Decision May Be Hazardous to Your Health: The Supreme Court of California Clarifies the Scope of Proposition 64’s Standing Amendments to the Unfair Competition Law” (Gibson Dunn Alert, 2009);  “2009: First-Quarter Update on Class Action Trends” (BNA, 2009); “Year-End Update On Class Actions: Explosive Growth in Class Actions Continues Despite Mounting Obstacles to Certification” (Gibson Dunn Alert, 2009); “Need a Light?  Understanding Voter Limits on Unfair Competition Actions After Tobacco II” (LACB, 2009); “Finishing the Case Before It Starts: Defeating Class Certification” (ACI, 2009); “Hot Topics In Class Actions:  A Perspective From Plaintiffs, Defendants, And The Academy” (BNA, 2009); “Recent Developments in State Unfair Practices Litigation” (PLI, 2009); Curriculum Chair, “The New World Order: Adjusting to New Regulations, the New Administration and the New Economy” (Institute for Corporate Counsel, 2009); “The Renewed Importance of a Rigorous Factual Analysis at the Class Certification Stage In Re Hydrogen Peroxide continues the Growing Trend” (Andrews Publications, 2009).

Education and Prior Experience

Ms. Lees is a 1979 graduate of the University of California, Los Angeles School of Law, where she was Editor-in-Chief of the UCLA Law Review and a member of the Order of the Coif, and a 1971 graduate of Northwestern University, where she received a Bachelor of Science degree in journalism. From 1979 to 1980, she was a law clerk to the Honorable Warren Ferguson on the Ninth Circuit Court of Appeals, and in 1978 she was a student extern to the Honorable Shirley Hufstedler, also on the Ninth Circuit Court of Appeals. Before attending law school, Ms. Lees was Associate Editor of New Worlds Magazine in Newport Beach, California.


Habib Nasrullah is a former Assistant United States Attorney who concentrates his practice as trial and national coordinating counsel on mass tort, and complex product liability and commercial litigation. Habib has substantial experience in this role, in both federal and state courts, representing several global corporations and the United States. He is frequently called upon to manage and litigate mass torts involving dockets of several thousand cases, including some recent emerging mass torts involving allegations based in professional negligence against healthcare providers, and nationwide food contamination epidemics. Since returning to private practice, Habib has also represented various pharmaceutical and healthcare companies in multidistrict product liability litigation involving an array of branded and generic drug products and healthcare services. His role includes development and coordination of litigation strategy, the selection of expert witnesses, creation of Daubert and preemption motions, trial preparation and trial. Habib works with clients and local counsel to conceptualize and implement a coherent and effective litigation plan for litigation that is often pending in multiple jurisdictions. He has been brought in to try cases involving complex expert and evidentiary issues with potentially large losses when trial is imminent. Habib's background as a federal prosecutor often results in his becoming involved in civil cases where there is a "parallel" criminal investigation. He also conducts internal investigations and counsels individual and corporate clients on a variety of federal and state compliance issues in the healthcare, aviation and financial institution sectors.


Hon. Carl J. West (Ret.) joined JAMS following eighteen years on the bench, spending the most recent ten years as a judge with the Los Angeles County Superior Court’s complex litigation panel. The complex litigation program, distinguished by its early judicial involvement and hands-on case management, promotes early identification of issues and focused discovery to permit significant issues to be resolved and to encourage settlement. Judge West held hundreds of settlement conferences for disputes that spanned the legal spectrum, often working closely with parties to bring them together and foster resolution of even the most complex and difficult cases.


Judge Moss, a member of the First Judicial District of Philadelphia, Pennsylvania, is a team leader in the Civil Trial Division, supervising several judges handling complex medical malpractice and products liability cases. She was the founder and first Supervising Judge of the Complex Litigation Center creating ground-breaking programs in asbestos, DES, L-Tryptophan, lead paint, breast implant, bone screw, Norplant, repetitive stress syndrome, medical malpractice, and general products liability litigation. She received a B.S. in journalism and a J.D. from Temple University and practiced law for eight and a half years specializing in medical malpractice, products liability and toxic torts.

Judge Moss was a founding member and chair of the State Judges Mass Tort Litigation Committee (MTLC founded in 1991), which was the first national organization to develop common approaches to problems in mass tort litigation and for eight years was a standing committee of the Conference of Chief Justices. She also testified before the United States Senate Judiciary Committee concerning legislative and judicial solutions to the asbestos problem nationwide and addressed the Conference of Chief Justices and the Federal Court’s Multi-District Litigation Judges on managing complex litigation.

She is chair of the First Judicial District’s Civil Rules Committee and co-chair of Civil Conversations, a monthly Judicial Education Seminar. She was appointed in by President Judge Darnell Jones as cochair of the newly formed Senior Judge’s Committee. Judge Moss is also an executive committee member of the Pennsylvania Conference of State Trial Judges, the Law Alumni Association of Temple University Beasley School of Law and the Brandeis Law Society. She is the 2007-2008 President of the Temple American Inn of Court and a National, at-large Board Member of the American Inns of Court.

Judge Moss received the Philadelphia Bar Association’s 2007 Justice William J. Brennan Jr. Distinguished Jurist Award which recognizes a jurist who adheres to the highest ideals of judicial service. She was also selected as the Beasley School of Law’s Certificate of Honor Recipient at Temple University’s Founders Day Celebration 2008.

Judge Moss has been a faculty member at the National Judicial College since 1992 teaching Civil Procedure and Complex Litigation to Judges from across the country. She has actively participated on the Editorial Advisory Board of the State/Federal Judicial Observer published by the Federal Judicial Center and as an Advisory Committee member of George Washington University’s Law and Science Project.

She has taught at Temple University’s Beasley School of Law, Weidner Law School, Drexel University Honors Program, Philadelphia City Solicitor’s Office, Philadelphia and Pennsylvania Bar Associations, Pennsylvania Bar Institute and the Pennsylvania Conference of State Trial Judges.


Michelle A. Childers is a partner and chair of the Products Liability and Mass Tort Practice Group at Drinker Biddle. She also serves as vice chair of the firm’s Litigation Department. Michelle’s practice primarily involves the defense of major pharmaceutical and medical device companies in mass torts, class actions, Attorneys General actions, and single-plaintiff actions involving allegations of defective products or personal injury. Michelle has significant experience defending complex pharmaceutical actions in state, federal and appellate courts. She has served as national counsel, as local counsel, and on national counsel teams. Michelle has coordinated cases around the country for all aspects of the trial preparation process, including written discovery, depositions, dispositive motions, preparing and defending company witnesses and experts, taking depositions, and coordinating settlement discussions. Michelle has also served as trial counsel for medical products cases. Michelle has also been retained as settlement counsel for high profile cases. Michelle received her J.D. from University of California, Hastings College of Law in 1998, where she was awarded the American Jurisprudence Award, Negotiation and Settlement. While in law school, she was a member and projects editor of the Hasting International and Comparative Law Review. Michelle received her B.A. from University of California at Los Angeles in 1990, where she studied Mathematics, Applied Sciences, and Economics. She attended the International Association of Defense Counsel Trial Academy held at Stanford Law School. Michelle is admitted to practice before the state court of California and is an active member of the Defense Research Institute and the International Association of Defense Counsel. Michelle is also a member of the American Bar Association and the California Bar Association.