Christopher Placitella of Cohen, Placitella & Roth and Eliot Jubilirer of Schiff Hardin LLP took on the subject of aggregate settlements during HB Litigation Conferences’ June 3, 2009, Judicial Forum on Asbestos.
Plaintiff attorney Placitella said asbestos litigants are practicing in two litigation worlds right now: one comprising claims involving malignancy, the other comprising non-malignancy claims. He discussed the ethics of the aggregate settlement, emerging theories of liability, the definition of “full disclosure” under federal rules, how aggregate settlements give parties more latitude to negotiate settlements, getting pre-approved settlement figures from clients, the impact of workers compensation and Medicare liens, and more. The overwhelming majority of new case filings are malignancy cases, he said. Resolving the backlog of cases and making sure the malignancy cases get individualized treatment is a key challenge facing lawyers and judges in the litigation.
Discussing the concepts of allocation and conditionality, defense attorney Jubilirer said of aggregate settlements that plaintiffs seek them as a way to “get scale,” fund litigation and keep weaker claims from holding back stronger ones. Defendants can find them as a way to “buy peace” when confronted with large numbers of claims. Jubilirer said one thing all defendants want from aggregate settlements is that they “stick.” He said there are many ways to divide funds, such as by disease types, or by establishing voting rules. He said that without aggregate settlements, the litigation historically could not have advanced. They give both sides a way to get together. You have to do it, he said, otherwise the litigation does not get settled.
Here they are.