Day 1 Wednesday, April 25, 2012
7:30 Conference Registration and Continental Breakfast
8:30 Co-Chairs’ Welcoming Remarks
Melissa Hunt
General Counsel
Occidental, Inc. (Dallas, TX)
Eric S. Sarner
Associate General Counsel
Praxair, Inc. (Danbury, CT)
8:45 Eye on Climate Change Litigation: Assessing Risk and Preparing for the Future Post-AEP v. Connecicut
Kevin P. Holewinski
Partner
Jones Day LLP (Washington, DC)
Kevin O’Neal
Senior Counsel – Litigation
Chevron Global Upstream and Gas (Houston, TX)
- Analyzing the holding in Connecticut v. American Electric & Power
- What effect does the case have on pending cases in lower courts?
- What other changes have occurred over the past year?
- What cases have been fi led in view of the decision?
- Where is the new form of climate change litigation going?
- What new theories are being proff ered by plaintiffs?
- Update on the status of Native Village of Kivalina, AK v. Exxon Mobil and Comer v. Murphy
- Doing business in the carbon conscious world: Navigating the current landscape of climate change regulation
- Where are we now?
- Advising clients in the wake of regulatory uncertainty
- Avoiding potential unbounded corporate liability for the release of CO2 and other greenhouse gases
- Protecting the company from unwanted exposure and admissions in SEC filings about greenhouse gas emissions
- What disclosure does the SEC guidance document require?
- Avoiding the risk of damaging statements made by sustainability officers in disclosures
- Understanding the effect of statements made in SEC filings on litigation in the future
9:45 Lessons Learned from the Aftermath of the Deepwater Horizon Incident: Responding to MDL Standards and Processes, Heightened Regula ons, and Increased Media Scrutiny
Kenneth J. Mallin
Partner
Bryan Cave LLP (St. Louis, MO)
Dawn Sestito
Partner
O’Melveny & Myers LLP (Los Angeles, CA)
- An overview of the current status of litigation stemming from the Gulf oil spill
- Judge Barbier’s LA District Court rulings
- Mitigating the impact of harsh off shore drilling regulations and monitoring post-Gulf oil spill
- Responding to new standards and processes for MDL litigation set by Judge Barbier
- Mandamus action challenging standards
- "Rocket docket" scheduling for MDL cases
- Taking steps following the lift of the moratorium on off shore drilling
- Preparing for proposed legislation
- Understanding criminal and civil proceedings by the government
- The official investigation into the cause
- Investigations and presidential commissions looking into different aspects of the spill
- Challenging uncertain government regulations
- Dealing with protective order and violations thereof (or attempts)
- Handling critiques of defendants in professional journals engaged in taking evidence used in a case (expert report) and putting it in a professional journal
10:45 Morning Coffee Break
11:00 Strategic Communications and Crisis Management: Protecting the Company’s Business Model and Reputation
Gregory G. Little
Partner
White & Case LLP (New York, NY)
Jeremy D. Mishkin
Partner & Chair of Litigation Department
Montgomery, McCracken, Walker & Rhoads, LLP (Philadelphia, PA)
As companies are learning lessons following the Deepwater Horizon incident, it has never been more important to have a plan in place to communicate with the media and the public about the chemicals they produce. Best practices for corporations need to be established to prepare to defend if something happens, whether it be proactive (getting ahead of the media) or reactive (responding to a crisis situation). In this social media era where everyone can access media and reach countless numbers of people literally at the click of a button, companies need to be ahead of the curve and be media-ready to handle any situation that may occur.Analysis of internal inventory practices: devising a plan for strategic communications
- Creating best practices to be proactively prepared to defend a company's image
- Minimizing crisis situations using strategic communications
- Case Study: A look at bans on bromine in flame retardants environmental concerns in everyday products
- Effectively communicating with the public: getting “media trained”
- Navigating the slippery slope of corporate product stewardship to avoid damaging admissions in future litigation
- Complying with EPA guidelines without arming plaintiffs
12:00 Networking Lunch for Speakers and Delegates
1:15 Maintaining Ethical Standards when Settling Multiparty Cases
Tynan Buthod
Partner
Baker Botts LLP (Houston, TX)
This session will present the positions of both plaintiff s and defendants when dealing with multiparty toxic tort settlement agreements. Settling multiparty cases is different from settling a class action, as individual consent is required of each claimant. There are various tools and techniques used to ensure the consent of all claimants to the settlement offer; however, ethical treatment must be maintained. Topics to be discussed include:
- Determining the ethics of mass settlements
- Avoiding non-compliance penalties by addressing
- Medicare/Medicaid reimbursement in settlements
- Balancing aggregate settlements with individual payouts
- Invoking judicial involvement in problematic aggregate settlements
- Review of tricks and traps in foreign jurisdictions
- Demanding closure and achieving individual consent to settlement
- Ensuring that plaintiffs’ counsel’s “package deals” truly equate to individual consent
- Including terms that make it unlikely for any claimant to decline
2:15 Arguing Against Exposure Pathways and Defeatng the Causal Nexus to Injury
Michael J. Kanute
Partner
Faegre Baker Daniels LLP (Chicago, IL)
Janika Polk
Partner
Kuchler Polk Schell Wiener & Richeson, LLC (New Orleans, LA)
- Adapting to the material changes being used by the plaintiff s’ bar following the release of the 3rd edition of the federal reference manual on scientific evidence
- Limiting the expense of trying to disprove exposure and the lack of causal link to the alleged harm
- Determining the extent to which very low levels of exposure to any given substance can be considered a “substantial factor” in the causation of adverse health effects
- Differentiating “substantial factor” from “one dose”
- Ensuring experts’ opinions about causation will survive a Daubert challenge
- Handling exposure reconstructions dating back 20-30 years while minimizing costs and ensuring accuracy
- Determining the geographic scope of an alleged injury in chemical exposure cases
- Handling fear of injury cases
- What happens when there is a latency period between exposure and injury?
- No injury class actions
3:15 Afternoon Refreshment Break
3:30 Navigating the Changing Landscape of MDLs and Class Certification Post-Walmart v. Dukes
Carolyn Frantz
Partner
Bartlit Beck Herman Palenchar & Scott LLP (Chicago, IL)
Leonard S. Kurfirst
Partner
Edwards Wildman Palmer LLP (Chicago, IL)
Sean Wajert
Partner
Dechert LLP (Philadelphia, PA)
- Understanding how classes are formed following Dukes
- Assessing the impact on no-injury consumer fraud class actions
- Optimizing settlement strategies by using Dukes to your advantage
- What is the JCMDL doing regarding case consolidation?
- What should you worry about?
- What types of cases are not being consolidated?
4:30 View from the Bench: The Judicial Perspective on Trying a Products Liability Case from Pretrial Issues, Pleadings and Motion Practice to the Trial Phase and Settlement
The Honorable Janis Graham Jack
United States District Judge, United States District Court
Southern District of Texas
The Honorable Frank Maas
United States District Judge, United States District Court
Southern District of New York
The Honorable James L. Robart
United States District Judge, United States District Court
Western District of Washington
The Honorable Allan R. Tereshko
Presiding Judge, Philadelphia Court of Common Pleas
Moderator:
Lori G. Cohen
Shareholder
Greenberg Traurig LLP (Atlanta, GA)
5:45 Conference Adjourns to Day Two
Day 2 Thursday, April 26, 2012
7:30 Continental Breakfast
8:20 Co-Chairs’ Opening Remarks and Recap of Day One
8:30 Resolving Discovery, Federal Court Removal, and other Pre-Trial Challenges in Toxic Tort and Environmental Matters: Views from In-House Attorneys
Joseph R. Alberts
Senior Counsel – Litigation
The Dow Chemical Company (Midland, MI)
Dow Agro Sciences, LLC (Indianapolis, IN)
Daniel J. Brown
Corporate Counsel
Georgia Gulf Corporation (Atlanta, GA)
Kevin O’Neal
Senior Counsel – Litigation
Chevron Global Upstream and Gas (Houston, TX)
Sophia Lee (invited)
Chief Counsel – Litigation
Sunoco, Inc. (Philadelphia, PA)
Moderator:
Joseph G. Eaton
Partner
Barnes & Thornburg LLP (Indianapolis, IN)
- Avoiding prohibitive costs when managing databases and discovery requests on a large scale
- Finding the right arguments to challenge unreasonable discovery requests that are designed to harass
- Collecting and maintaining documents in e-discovery
- Records retrieval and retention
- Proper search methods
- Evaluation
- Preparing a privilege log in a case involving e-discovery
- Preventing the abuse of corporate designation 30(b)(6) depositions
- Preparing corporate designee deponents to survive cross-examination
- How to answer questions about document retention and hold patterns
- Separating the corporate designee from the individual
9:45 Morning Coffee Break
10:00 In-House Perspectives: Controlling Costs When Preparing and Trying Cases
Eric S. Sarner
Associate General Counsel
Praxair, Inc. (Danbury, CT)
Wesley N. Harris (invited)
Senior Counsel
Shell Oil Company (Houston, TX)
Scott A. King
Vice President and General Counsel
Occidental Chemical Corporation (Dallas, TX)
Lisa Ketai
Senior Counsel – EHS&S Litigation
Chevron Phillips Chemical Company LP
(The Woodlands, TX)
Diana Reed
Senior Counsel – Litigation
PPG Industries, Inc. (Pittsburgh, PA)
Moderator:
Stephen J. McConnell
Partner
Dechert LLP (Philadelphia, PA)
- Building a trial team, including hiring outside counsel, while keeping costs down
- Managing a multi-law firm team that has been “knitted” together to maximize expertise
- Minimizing your financial output when facing complex chemical products liability litigation
- Responding to plaintiff s’ forum shopping:
- Tailoring trial management strategies to fit mass tort, class tort, or one-off cases
- Avoiding settlements as a cost-cutting tool while reducing the cost of trying a case
- Communicating to management the need to defend products rather than settle cases despite the fact that settlement may be a faster and less expensive alternative to trial
- Strategizing expert selection and effectively working with your trial team
- Cost effective tools for expert selection
- Understanding that the “best” is not necessarily the most expensive
- Proffering effective and “correct” discovery challenges to avoid risk and strengthen defense position
- Controlling the discovery process to minimize costs
- Minimizing the impact of social media on discovery
- Monitoring employees posts
- Responding to posts made in favor of plaintiffs and to the detriment of defendants
- Combating the unfi ltered nature of social media content in the discovery process
- Strategies to prevent social media posts from doing damage before they can be filtered in the courtroom
- Best practices for maintaining privilege on internal documents
- Discoverability of a corporation’s internal risk assessment documents
- When is it favorable to have these documents viewed by a judge and jury?
11:15 Preparing for Litigation Arising out of Unconventional Gas Drilling Operations in Shale Plays
Jeffrey J. Norton
Member
Eckert Seamans Cherin & Mellott, LLC (Harrisburg, PA)
Jennifer Quinn-Barabanov
Partner
Steptoe & Johnson LLP (Washington, DC)
Douglas B. Sanders
Partner
Baker & McKenzie LLP (Chicago, IL)
- Assessing the impact of the FRAC Act and state legislation seeking to preserve water quality by enjoining shale drilling operations
- State legislatures and Congress' involvement in developing environmental safeguards
- Identifying the potential for lawsuits arising out of “fracking” legislation
- Assessing the unique regulatory and common law legal framework for the Marcellus Shale
- Evaluating the impact of shale play developments on private land well permitting
- Difficulty in obtaining a permit to put a private well on private lands
- Heightened scrutiny of environmental quality issues as related to well installation and operation
- Defeating the link between fracking and groundwater contamination
- FRAC Act update
- Litigation on the horizon?
12:15 Networking Lunch for Speakers and Delegates
1:30 Case Study: Learning from Louisiana Legacy Oilfield Contamina on Cases to Mitigate Long-Term Risk in Fracking Operations
Michael Phillips
Partner
Kean Miller (New Orleans, LA)
This session will provide best practices tips to attorneys in the northeast and other non-traditional mineral mining states from the perspective of attorneys in TX and LA who have dealt with the problems that occur 20 years aft er the wellhead is closed. One of the main sources of litigation in LA is oilfi eld contamination litigation. Instructors will provide valuable insight to companies getting into the natural gas boom and will provide the opportunity to peer into the crystal ball of what will happen aft er the gas has been extracted, royalty checks stop, and landowners are seeking more returns.
2:30 Regulatory Update: Protec ng the Company and Mi ga ng Risk in the Battle between EPA, Congress, and the States to Regulate Chemicals
William Hubbard
Partner
Thompson Hine LLP (Cleveland, OH)
Steven M. Siros
Partner
Jenner & Block LLP (Chicago, IL)
- Bracing for the uncertainty caused by the slanted scientific review process and unreasonable chemical classifications coming out of EPA’s IRIS
- What are the cleanup, litigation, and transactional costs?
- Impacts on causation theories
- Preparing for the effects of TSCA reform
- What will it look like?
- What is the impact on the industry?
- Assessing the nationwide impact of California's Proposition 65 labeling requirements
- Interplay between the California Proposition 65 and litigation on a national scale
- California as a bellwether for the rest of the nation
- AG’s power to deputize private attorneys to enforce Proposition 65
- Guilty until proven innocent: operating under a precautionary standard of regulation similar to the EU’s R.E.A.Ch.
- Planning for discrete state regulation of chemicals stemming from California’s Green Chemistry Initiative
- Dealing with the shift in OSHA’s regulatory role from passive to active enforcement initiatives
- Overcoming permitting challenges stemming from the discord between EPA and state agencies over permitting rules
- TX DEQ challenge to EPA authority
- What is CA doing?
3:30 Afternoon Refreshment Break
3:45 Staying Ahead of the Curve: Understanding the Science and Regulation of Nanotechnology and the Implications in Chemical and Consumer Products Liability
Theodore Voorhees, Jr.
Partner
Covington & Burling LLP (Washington, DC)
Ronald C. Wernette, Jr.
Partner
Bowman and Brooke, LLP (Detroit, MI)
- Nanoparticles and human health: explaining the current state of the science relevant to consumer products (TiO2, nanotubes, nanosilver, etc.)
- Evolving concepts and methods of risk assessment: characterizing physiochemical properties as a critical tool in bridging information between animal toxicology literature and potential human exposure settings
- Understanding the current regulatory framework
- What is the current status of nanotechnology regulation in the United States?
- Emerging regulatory trends
- Alternative policy models for addressing potential hazards
- Anticipating and preparing for occupational, consumer, and environmental claims
4:45 Conference Concludes
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