Make the Most of Your Mediation: Effective Negotiations

Hon. Lynn Duryee (Ret.)

Hon. Lynn Duryee (Ret.)

By Hon. Lynn Duryee (Ret.)

Wouldn’t it be great if at your next mediation your client left satisfied, you felt valued and the case settled at its best number?  Here are five tools lawyers can use to set up such an outcome: 

1.  Bring everything you need to settle completely.  Before the mediation, think about what you will need to settle the case in its entirety.  Perhaps it is a document, such as a settlement agreement, release of lien, escrow instructions, quitclaim deed or dismissal with prejudice.  Maybe it’s your client’s checkbook or certified funds.  Perhaps it is something intangible, such as tax advice or a reduction of a medical lien.  Whatever your case might need to settle it once and for all, have it with you at the mediation.  If closing documents require notarization, arrange to have a notary at the ready.  The best time to hammer down loose nails is when parties are face-to-face and focused on resolution.  Knowing in advance what you need to settle reduces the possibility of overlooking some detail and gives you a template for working with your opponent.  Plus, it really enhances the giddy factor when, for example, the contractor walks out with a check in his hand and the homeowner has a notarized release of mechanic’s lien in hers.

2.  Give the case your full attention.  Sure, you can spend the day playing on your cell phone and billing other files, but if you give your client your full attention, you will increase your client’s satisfaction as well as the likelihood of settlement.  Why?  Because engagement is magic.  If you think about the most exhilarating moments in your life—whether you were trying a case to a jury, delivering a baby or watching Game 7 the World Series—you were giving 100 percent of your effort to that important moment.  Do the same for your client during his mediation.  Attend to his needs.  Be patient in explaining the ups and downs of the day.  Let him grouse for the hundredth (and hopefully last) time.  You will learn more because you’re listening deeply, improve your thinking because of your single focus and enjoy yourself because you’re on fire.  Doesn’t sound better than another round of boring solitaire?

3.  Say it with pictures.  As lawyers, we believe in words.  We love them!  Can’t get enough of them!  So we often forget that seeing is believing.  How can you best illustrate your case?  Day-in-the-life videos are awesome, but not every case merits an outlay so time-consuming and expensive.  It could be something as simple as enlarged color photographs (not the usual black-and-white photocopies better suited to a Rorschach than a visual aid).  What about a brief PowerPoint with pictures of the defects?  Or a video showing the cows’ trespass on to your client’s property?  Or a mockup of the defective product?  Visual aids are a great tool for the joint session because they’re efficient, interesting and persuasive.  So save your breath and say it with pictures.

To read on to section 4. Create Ground Rules, please read the full article from by clicking here.

Allocation Methodology

Cathy Yanni

Cathy Yanni

by Cathy Yanni

This article will focus on the due process aspect of allocation methodologies in mass tort class actions and multidistrict litigations.  This typically involves the substantive right to allocation and procedurally how the process is structured.

Let’s assume you have settled a mass tort and it is now time to allocate the settlement proceeds among the claimants.  There is a variety of settlement models.  For example, the settlement can involve all or almost all of the claims, e.g., Vioxx, ASR Hips or individual inventory settlements involving particular counsel or groups of counsel.

In an inventory settlement, the defendant settles based on an evaluation of each case by a law firm or group of law firms.  The defendant may require that a certain percentage of the claimants accepts the allocation.  The defendants negotiate a settlement grid or matrix with an agreed-upon settlement value.  The values may be based on age or type of injury and may use a point or scoring system.  Each point can be worth an agreed-upon value.  The higher the points, the higher the allocated amount.  On occasion, the defendant may negotiate a lump-sum amount, leaving the allocation process to the plaintiffs.  Most settlements include a blow-out provision requiring an agreed-upon percentage of claimants to accept the settlement terms.

Whether you represent two or 2,000 plaintiffs in a class action or MDL, or you are one of two or 200 firms representing multiple claimants, allocation produces potential conflicts of interest among the competing claimants (ABA Model Rules of Professional Conduct, Rule 1.7).  Counsel must obtain informed consent from each claimant and has an affirmative duty to communicate the settlement to the claimants (ABA Model, Rules 1.0, 1.4 and 1.8(g)).

The designer of the applicable allocation model must keep in mind that pursuant to Fed. R. Civ. P. 23(e), the settlement and the resulting allocation must be fair, adequate and reasonable.

Allocation necessarily pits mass justice against individual justice.  When you are formulating the model, you need to determine how many injury categories are appropriate and what types of injuries will be compensated.  Common injury categories include heart attack, stroke and death.  Often, deductions for comorbidities are part of the allocation methodology, such as age, body mass index and smoking.

To continue reading Cathy Yanni’s discussion on Allocation Methodology, please read the full article from by clicking here.

$1B Settlement Reached in Stryker Hip Implant Mass Tort

Hon. Diane M. Welsh (Ret.)

Hon. Diane M. Welsh (Ret.)

Thousands of plaintiffs in New Jersey and around the country who had surgery to remove failed hip implants settled their claims November 3 in a deal that is expected to pay out more than $1 billion. It was reached after four months of negotiations with Stryker mediated by retired U.S. Magistrate Judge Diane Welsh, a JAMS mediator based in Philadelphia.

The global settlement with Howmedica Osteonics Corporation, a Mahwah, N.J., corporation that does business as Stryker Orthopaedics, resolves the claims of about 3,000 individuals who were implanted with Stryker Rejuvenate and ABG II Modular hip stems. Stryker agreed to a base payment of $300,000 to compensate plaintiffs who had to have a Rejuvenate or an ABG II hip implant device surgically removed before November 3, according to counsel. The payment will be doubled for plaintiffs who had devices removed from both hips, the attorneys said, and there will be additional payments for complications arising from the removal surgeries.

Between December 2013 and June 2014, Judge Welsh successfully mediated more than 20 bellwether cases that were filed in state court in New Jersey. She then successfully mediated the global settlement agreement for the federal Multi-District Litigation and the New Jersey litigation covering approximately 4,000 cases and is also open to claimants who have not yet filed suit.  Judge Welsh will now serve as the Claims Administrator to ensure that the settlement is carried out in accordance of the settlement agreement and she will decide appeals from claimants who are denied.

For additional coverage, please click here for coverage in the New Jersey Law Journal or here for Bloomberg coverage.

Protecting Confidentiality of Patent Infringement Settlements: Is Mediation Necessary?

James M. Amend, Esq.

James M. Amend, Esq.

By James M. Amend, Esq.

Parties regularly opt to keep terms, conditions and licensing agreements confidential when settling patent infringement disputes.  Often, patentees do not want the license terms to serve as precedent in other assertions of the patent(s).  Defendants may also not want other potential patent plaintiffs to believe they are a “soft touch.”  Whatever the reason, parties assume that the confidentiality provision will be effective against disclosure of the license terms by the other side or to third parties.  The assumption may be warranted in the former, but recent cases have cast serious doubt on the latter.

The Federal Circuit, for example, has held that such confidentiality provisions may not shield the license terms or their negotiations from either disclosure or admissibility on the issue of damages in other suits brought under the same patent(s).  However, it has intimated that this may not be the case if the negotiations were conducted in, and the settlement the result of, a mediation.  It appears that conducting patent infringement settlement negotiations in mediation maximizes the prospects for protecting at least the confidentiality of those negotiations, if not the license itself.

To put that thesis in context, under 35 U.S.C. Sec. 284, a patentee is entitled to at least a reasonable royalty if its patent is found to have been infringed.  A reasonable royalty is usually determined by an analysis of factors set forth in the Georgia-Pacific case that inform the hypothetical royalty rate the parties would have agreed to in negotiations conducted when the infringement began.  The first Georgia-Pacific factor—and the one most important here—is the royalties received by the patentee from existing licenses of the patent(s) in suit.  Prior to 2010, there was a question concerning whether existing licenses that were the result of litigation settlement were proper references, because they were not purely commercial but could be skewed by litigation considerations such as expense savings, risks of invalidity, etc.  That question was put to rest in v. Lansa, Inc. (Fed.Cir. 2010), which held that of many licenses entered into by the patentee, “the most reliable license in this record arose out of litigation.”  Confidentiality of this license or its negotiation history was not at issue, but it became of heightened importance to patentees that did not want their litigation settlements to cap their damages in future litigation.  And, as will be seen below, it incentivized efforts by later defendants accused of infringing the same patents to discover not only the terms, but also the negotiation history of earlier licenses resulting from litigation settlements.

To read on about Mr. Amend’s discussion on Protecting Confidentiality of Patent Infringement Settlements, please read the full article from by clicking here.