How to Pick Mass Tort Litigations

Steve Nober: It’s dizzying to see all the litigations and updates. There’s a lot at once, so when the firms come in here and try to pick which one or two or three, there’s no easy answer. I think we’re here to try to figure it all out. How do you and your firm pick the litigations you decide to move on?

Mike Papantonio: We have an entire committee that does that. We have scientists who help us with that; we have doctors who help. We do the same thing as Wall Street does. We do an analysis.

The way we do that is information. Information is power. You don’t pick it up at a local seminar. What we try to do here is build around that. You have to analyze like we do. I have a checklist. I think what I’m going to do is bring that checklist to the next program. It’s a very sophisticated checklist.

What’s the setting? Where is it? Who are the defendants? What kind of insurance policy do they have, a defense policy vs. a compensation policy? Who are the defense lawyers? All that stuff is part of the evaluation, just like Steve’s been doing with you. That’s real thinking. You can’t do it in a knee-jerk way. It’s not sustainable.

When Is It Too Late to Get Into a Litigation?

Steve Nober: Touching on that, you made a comment earlier about being first in and getting Roundup for $50. Firms come to me all the time and many think it’s too late to get into Hernia Mesh; too late to get into Roundup now; too late to get into IVC. I always say it’s too late to get to file any more when there’s a settlement or it’s too late when the acquisition costs get higher than you think makes sense to go get more cases. So, on the comment earlier of being early, mid-stage, late, all these lawyers in the room and other firms are trying to figure out timing. The question is about the strategy. Obviously, there’s a higher risk to get in early vs. mid-stage or late. There are different costs. How do you approach not being worried about if it’s too late or what the costs are? What are your thoughts?

Mike Papantonio: Timing this thing is like Wall Street, the stock market. How do you time anything? Am I going to sell Apple today and maybe take a profit, get back in? This is no different. That’s how we evaluate everything we look at, like it’s a broad stock market and our job is to evaluate. You’re never too late to anything, depending on how committed you are. Let’s say you’re three months into something and the prices are going up. It looks like the committee is put together. Some of you just don’t tolerate that. Don’t try to time it.

How to Pick Co-Counsel

Steve Nober: A lot of firms look to co-counsel, and Levin being on top of that list of great firms to work with. What advice can you give? My guess is three-quarters of the firms that attend MTMP are looking to get into cases and find the right partner to co-counsel with. Advice or thoughts on what they should look for in finding the right partner?

Mike Papantonio: The people you partner with have got to have a stake in your future. They’ve got to say, “I want to do business with you.” The people in this room didn’t just happen. We’ve made a lot of money for most of these people. That’s the way you ought to have a relationship with whomever you’re doing business with. If it’s all about “Give me your case” like you’re some sort of entity, you can’t do business with these people. That’s immediate gratification and this is a long game.

You have to build a relationship with these people that you feel good about. You want to sit down and talk with them. It’s not about me, me, me. Check them out to see if they’ve had any fee disputes. If they have, don’t do any business with them, zero tolerance. You need to know that if things don’t go well on a project, they’re going to take care of you before they take care of themselves. If they won’t, you should not be doing business with them, period.

Before we do business with anyone, we do our due diligence. It’s a two-way street. If we’ve got a sense that they’ve got everything riding on this, and they don’t have a long-term history for success, we do not put our cases with them.

Quality of Cases

Steve Nober: Marketing is a necessary means to acquire cases in this industry. I think there’s no way around it. But it’s impacting the litigations. An even further complicator to add to this question is the quality of cases being filed. I’m curious about your thoughts on the impact of marketing as it relates to these cases, as well as advice to this group on the quality of filings and the impact on litigations.

Mike Papantonio: Think of your inventory when settlement takes place. You’re going to have a high-end and low-end settlement. If you have a hundred cases, the defendant wants to know, “What is my average payout for those hundred cases?” If you’ve got 70 cases and they’re all pristine, that can be good or bad because all of a sudden, your averages jump way up because you’ve got 70 top-end cases.

You never load up with low-end cases. They don’t do anything for your clients. That’s just a dumbing down of what you’re paying your clients. Your best bet is upper-end and mid-level. If you just want a lot of cases, you’re killing yourself, you’re killing the mass tort process. This idea of I’m going to get a bunch of cases and warehouse them, baby, those days are gone.

Advertising: Local or National?

Audience Question: Let’s say someone came all the way from Hawaii and wanted to get into earplugs and has not done mass torts before. In your advertising, would it be local advertising?

Steve Nober: The marketing answer to your question is, if you had a co-counsel partner for Valsartan or Mesh, it’s a national MDL. We could run an ad through the entire country and Hawaii. We’d put the disclosure that’s compliant for you in Hawaii. It’s a lot more efficient to run the whole country. We could run in Hawaii. I run asbestos campaigns just in Hawaii. It’s more of a question about your objectives and deciding what marketing makes sense.

Group Advertising

Audience Question: Speaking about advertising, can a group of firms advertise?

Mike Papantonio: That’s wonderful! Anyone trying to move into this business, why try to do this by yourself? Yesterday, I met with a group of trial lawyers who told me none of them had $2 million to put out. I told them, “No, you do.” Everyone pools their money together. The first project, you take a little less. Everybody splits up. What you’re doing is creating new relationships you didn’t have. This whole business is about relationships. There’s strength in numbers. They feel empowered. They have three people, five people, whatever. They’re collectively putting in their money. The great thing about Steve is that I send new lawyers to him all the time because he works with them.

Steve Nober: From the marketing side, yes, we can help put partnerships together. Often, it’s a business decision where you and other firms might have already discussed. Your co-counsel lead may already have a consortium they’ve put together. I bet 30 to 40 percent of our business is some sort of partnerships that are coming together to do their marketing. There are some benefits to that on the marketing side, as well.

Where to Go Next?

Audience Question: Where does someone go who’s been doing this for 5 or 6 years? They dip their toes in a few projects. They have worked with some marketing partners, some litigation partners. They’ve kind of found their way and they want to do a little more. What is the next step?

Mike Papantonio: You demand it. For example, the people I work with, at first, they want to give me their cases. They want to make money while they sleep and they want to observe what it’s all about. Then, they say, “Well, I’m not really comfortable doing that. I’m a trial lawyer. I want to participate in the solution. When somebody says, “Pap, I’m ready to do this. I want to be in the newspaper in my hometown, to get the verdict,” we invest totally in you.

It Doesn’t Matter Where You Live. You’ll Be Trying the Case Elsewhere.

Audience Question: Our team is a boutique firm known for our medical malpractice work. We also have one partner who does single event product work. We’re trying to expand our reputation by linking our expansion of our product work in the medical device field. We’re in Fairfield County, Connecticut, next to New York but not the New York market. We’re a bedroom community for hedge fund and the financial district. If you were us, where would you be heading? Sounds to me like Hernia Mesh, IVC Filter?

Mike Papantonio: I’d be going all over Hernia Mesh. I’d do some IVC Filter but if you’re asking me what you walk out of here with, it’s Hernia Mesh. You know what’s so wonderful about this business? It doesn’t matter where you live. You’re going to be trying the case elsewhere. It doesn’t have to be local. Go anywhere you want, unless you want Steve to put you in a pocket. Then, put your cases in the MDL, and say, “I want to do more.”

Audience Question: We’re from El Paso and we have the biggest military base. A lot of our clients already have hearing problems as a result of the earplugs. We’ve seen this trend going on for a while, the depression, the PTSD, all of it. What would you recommend we do?

Steve Nober: If you decide to get 3M cases, it’s a national thing. I would add, if your firm has real brand value in the community, local marketing can maybe get you cases at a cost that makes sense because you can leverage your brand. It never makes sense to be local unless you’re in that situation. It’s a national thing, for sure.