The Mediation of Securities Class Action Suits

are evaluative and obviously the kind of mediator that greg is talk- and where the case is going to go. so even if a one-day mediation surer and insured may enable an easier day of mediation, it is also 412 cardozo j. of conflict resolution [vol. 9:397 mr. rudman: it's very rarely successful if the motion is misphased was going to go to harvard, but it actually went to larry ellison fessor love and others suggest are associated with evaluative medi- mented that he relies on the mediator as being more than a pur- melt away. its true position ineptly, which could prejudice its settlement start the day. no one is suggesting however that it has to be a day posal that was presented as representative of the mediator's own million case. it's going to take months to get that in and say this is it would be indirect rather than direct. i never have a problem with large towers of insurance and solvent companies, the chal- settling for less than $1 million have often been referred to as "nuisance suits," re- (internal quotations and citations omitted); joseph a. grundfest, why disimply? 108 harv. l. the parties trust and somebody that you can go to in the way we're defendant company will sometimes tell us that it has intentionally listen to the other side with an open mind. mediator's proposal, but the letter is different and i couch the let- both sides. people will listen, clients will listen. procedure of the process, i think the mediator just assumes he has cess that starts when the case comes in the door and ends only at if the judge believes there's fraud committed, the complaint is go- the parties are ready to be reasonable, there's no point in the i think it depends on the case. there are certain cases that you can to mediation soon after a complaint has been filed, before a motion not have to accept a bracket, and the plaintiff may respond with his joint session, but you get a chance to read the mediator and that to $18 is one case that might have happened six months ago. $20 to ity counts. if it would wipe the company off the face of the earth, winner" and plaintiffs think they've got a clear winner ­ there's no judge weinstein: i have observed that the common session is often pectations. this is not to say that the insured and insurer conflicts the hook in." this refers to the point at which a plaintiff begins to we can. it's not about more or less fraud in the market. these they think it's ready. we got a few business executives or general evaluative judgment, as distinguished from mediation in a commu- mr. rudman: one of the first questions a client asks is how much cided some of the questions that surround all of the complicated are useful if for example, the parties are particularly difficult and states than in europe or asia, . . . one of the most dominate criticism of u.s. capital markets is because they think the demand is way too high. these instead of tion before having the parties in the room. new skills for complex cases, 9 no. 3 disp. resol. mag. 14 (2003) (discussing facilitative skills judge weinstein: you want to jump in michael, take a shot from most becomes a mini-mediation among the carriers. mr. markel: depends on who is there. if some client is there, it is pending rulings from the court, expensive impending discovery, or a party must trust that the mediator will not use information about there was also unanimous agreement on the value of early mediation, and one must consider how that tension might be ana- tion. interestingly enough, what the most succesful commercial ms. barry: one thing michael brought up ­ i did have one situa- the selection of the mediator. you have to have a mediator that all of damages issues ­ post-dura ­ in the mediation of class actions, in 6 mealey's emerging in particular when plaintiff and defendant are in agreement as to a there is any room for creative problem solving, integrative bargain- wishes to set conditions or ultimatums for the other party as a con- benjamin n. cardozo school of law ing or integrative bargaining. the reality is that the average settle- as a proportion of damages generally decline as damages increase. basis. i think that has an effect of them making sure that when pointed out that without a fully developed record, especially when and 2000, cases that were generally in the high tech area, high-fly- call directly from the insurance carrier and it was odd, as very often minutes now, talk directly to the insurance guy. he's hearing from is that fair? `96, it's very rare you would have fortune 100 companies in one of with companies. in the end, settlements are a reflection of some flecting the fact that they may represent non-meritorious claims that defendants are question 7 true that a great deal of strategy often goes into development of ful to do an early mediation session. it depends, of course, on the asked the panelists whether a role exists for creative problem solv- cases, it's allocated different, but more likely than not, it's the in- at "official" numbers. for example, the parties might officially be haust and that can be a pretty frustrating experience for everybody. securities class action mediation the impasse or problem takes the start negotiations by helping opposing each party identify settlement numbers that might be presentations you're going to make ­ as being the entire issue with- courthouse steps. while litigants may find comfort in analyzing a securities lawsuits are not one size fits all, but when are all of the experience, most insurance companies, including their counsel and of these issues in trial. any thoughts about the world after dura? companies usually, but an insurance company that just messes up smaller cases are harder to settle than the bigger cases for that rea- process, the mediator learns valuable information from the parties the basis of your demand and similarly with the defendants with an ally. but that was a different kind of settlement, a creative settle- get into the back dating options cases. we could do a whole panel ics, such as the aftermath of dura. maybe we should just make a the parties, under the mediation privilege the mediator may facili- some innovative things in our practice that people could pick up and put it behind them. the insurance company obviously wants lent and important, but less so than an employment discrimination the third concept is that when parties get close to an agree- mr. max berger: trends ­ certainly cases and settlements are much another point that a number of the panelists made is that reform that that are really important to them. sometimes max and audience question 2: defense counsel referred to insurance com- mr. berger: the biggest problem we're confronting in mediation we're partners in keeping insurance companies informed and man- mr. young: that's valid. the way i do it, and most of my col- comment is the mediation principle of party self determination as it, but you got to assume that we're right on the facts. that's the throughout the case, done periodic reviews for insurance company a small company whose stock was trading very high. the com- to move aggressively and miss an opportunity. by the time a new the mediator authorized to provide legal advice?, 62 disp. resol. j. 26 (2007) (suggesting that who we respect and often settlements takes years ­ nowadays most year. so you've had a one-third decline in the number of class ac- $2.5 million, and concluded that [t]his is less than the defendants cost of taking one of these cases informed consent: warning the unwary, 21 ohio st. j. on disp. resol. 45 (2005) (discussing few opportunities for "expanding the pie" parties tend to fall whether there's potential gain. ations where i just think somebody in a specific insurance company mr. markel: i agree with that, in general, though, i do think there's panel was the use of the common session at the start of the media- do. it's generally raised by either the judge or defense counsel, or sessions with the mediator, but mediation statements should be ex- judge weinstein: in the back dating option cases, there's much and tellabs9 and that's what i want. you have to have a rationale for the basis higher settlement values in our cases. if you average in the mega sometimes accommodate prolonged mediation efforts, especially sor boskey discussing the strengths and weakness of evaluative and facilitative mediation); lela information helps guide the mediator's role as a "negotiation carriers out of early negotiations and the preparation for an early while a constructive and productive relationship between in- whatever your opening demand is, the mediator and the other side out of the discussion and collective experience of the group. for early on fails and even your rates which are well deserved but not jams mediators. the insurance company has a heavy say in that ties to securities class actions initiate mediation at increasingly plaintiff group that is satisfying to that group and doesn't cost want the mediator's objective advice. then my client and i can subprime mortgage that evolves from consumer class action or when you make a formal bid and you say i'll pay this much or i times in a mediation, even an early one, you'll hear i think my case been more active in helping screen the case. settlement discussion in an early stage. i know it's not perfect, and tributed by class counsel to shareholders who have suffered loss. volved at the start. the word "reasonable" is the key word. tion come up where the plaintiff was willing to mediate and our ment, they do different things to close a deal than they would, or side to understand that you can evaluate their thinking, resetting creativity to achieve. companies, their insurance carriers, and that with the facts, my damages, and our position in the case. for 404 cardozo j. of conflict resolution [vol. 9:397 settlements. the ability to communicate directly with the client in the presence number of filings the settlement values. joe grunfest does the might also reflect a range that represents potential avoided defense costs; settlements mediation, the mediator will inevitably spend a great deal of time can't accept what you're telling us ­ the documents, evidence and 2008] securities class action suits 405 to keep his mouth shut. so there's no dialogue. the mediator's change during the course of the process), a mediator needs to tread coming from a position of strength when you say this is my number with those principals. it's an art, a high art, but it's the really best often. cially after you've gotten that close. it depends a lot on who the is unlikely that they will find much sympathy for having to endure offer. clearly, when a mediator makes a proposal, it shouldn't be a any documents or witnesses to rebut what you're telling me ­ why benefit to the mediation process. in terms of the opening number settlement. i think a lot of it depends, as someone else said earlier, on the agreements with the plaintiffs to assist in the prosecution of law- to settle the case and reasonably so at the lowest possible number that used to be automatic. although i think it's much tougher to off their position or number a bit and blame it on the mediator but it's also a particular segment of the industry that gets hit with whether you got a good motion to dismiss, where you think the cause some executives are going to jail and the very large judg- annoying plaintiff's lawyer. with that, i agree with everything else. on september 27, 2007, a packed moot court room at the mr. salpeter: i don't think you can have a one-size-fits-all answer somewhat smaller over time. the cases are more heavily litigated. with a careful probing of that strategy to see whether some efforts counsel who are here, who have to confront the question of be about dollars, the reality is that these multi-party disputes fre- of it. i go through the same exercise, not as well as max, looking at tion. judge weinstein lamented that too often the parties waste the now got an opinion upholding the complaint, even though he has at 2008] securities class action suits 403 ing demands? of reasonableness. wash. l. rev. 881, 908 (2004) (describing possible barriers to settlement). your case, and you and your client know enough about the other guage that was at work. i won't go there, but i'll show up if you the insurance carriers in a very large case. yesterday i got a phone observations. i'm always working to get direct contact with the cli- pany is really on the hook. the company is solvent. it gets to a nity mediation center with unrepresented parties who did not 2008] securities class action suits 419 that the plaintiffs are willing to settle the case for less than seventy, tions of the parties. it is the job of the mediator to fight through costly. litigation can easily cost hundreds of thousands or even case. one thing each of the panelists says, which is right, one size distinguished practitioners from all sides of the securities class ac- there is no settlement and the rejecting side does not learn what authoritative. but when you do have difficult situations in the be- recent supreme court decisions in dura8 mand is outrageous. more often than not, you're met with two you might as well not have a mediator. on the other hand, we do plus there are the scare factors of white collar defendants going to actions; it is helpful to have the overview to start to figure out what mr. salpeter: the specific areas of tension are, where do you a company's top management has to sign certifications on a regular evaluative mediation); merc´edeh azeredo da silveira, impartiality v. substantive neutrality: is skills, particularly when dealing with sophisticated parties with in- 2008] securities class action suits 413 simplification of the tension between evaluative and facilitative about one day of mediation, you often learn something even if it how their case is affected by the law). first offer and the message sending is a very important part of that there are two common situations in which a mediator may self having a problem down the road. you try to come up with a one of the highlights of the panel was the discussion of negoti- 8 dura pharmaceuticals, inc. v. broudo, 544 u.s. 336 (2005). dreds of millions, if not billions of dollars in damages, but we have filings is clearly down. there are different types of cases out there the great values of a skilled mediator is figuring out, like judge carriers. so i assume that's fifty percent. i think really, you take judge weinstein: if the bracket is $3 to $4 billion, max doesn't case. how the mediator presents the proposal may have an impact against having to make a risk management decision in the face of judge weinstein: max? share them with the plaintiffs in an effort to manage plaintiffs' ex- sense of the dynamics and how the mediation came about and not when working with clients. i found that one of the best things you know the beginning parameters, but at that point, you evaluate first and last opportunity for each side to talk directly to the insur- we offer $5 million or some very low number in response to that opportunity to make a presentation and talk directly to the carriers mediation, even when that mediation does not lead to a settlement. the insurance company has got to be a partner with your defense places, i think tellabs is the language of the statute. in other thoughts are going to go on down the line. as far as volatility, it's to settlements. the panelists agreed that an early mediation gives whether a party is posturing and thinking about an entirely circumstances in the middle of the tower. i've also seen a few situ- carriers will generally make themselves available, even with responsibilities of the mediator is to sort out the insurance issues judge weinstein: touchy area. maybe michael wants to give his 2008] securities class action suits 401 on a number of the subjects discussed. it considers five topics: the day or two or more create for themselves the ability to talk directly the fact that we've had a public administration in the last eight judge weinstein: in analyzing that we deal with the worry of the case might arrange, where the case might be settleable from your not a $10 million case, it's going to have to be higher than that up of $20-plus million because the company was getting a benefit of important duties of the mediator prior to a scheduled day of medi- the opportunity to talk to the jury about a case, but we often see judge weinstein: i'm interested in hearing from the carriers on mind that what i'm seeing generally is the pleadings, hopefully the lawyer. you work with them well and keep them informed. in my tically, perhaps and most likely in a separate session, here's the way had with judge weinstein as a mediator, he has counted on the my view, until there's an amended complaint. you don't know lowing parmalat, enron and adelphia. the author would like to thank michael maas and moved in conference rooms during the mediation of securities class mr. berger: depends on what it is. pany's solvent, but really doesn't have ability to pay issues. that's their expectations as to what the case is going to be worth. many while, you'll run into an insurance company, not one of the top represent the client. amples of cases where judges have instructed and juries have de- sons why that number makes sense. so if they're looking for a strategy is, what they are trying to accomplish, how to present their judge weinstein: i stand by that statement, especially given the tion. i'm wondering perhaps if defendants' counsel or insurance with the mediator's view of what a settlement should look like and times that they don't want to talk until they have documents and with your client. judge, we've had cases where you put out media- on who the judge is. we're in the fourth circuit now in a case in mr. salpeter: well, i think they're useful, but i think they're useful case is ready for mediation and what do you do to get it started? you want to call the client independently of the attorney? gener- about the money, but sometimes a smaller case where you have a facts before we are ready to make a decision, but it's when lawyers be mediated or resolved some day. that's sort of my take on the man, defense lawyers gregory markel and alan salpeter, and 1 author jed d. melnick is a 1999 graduate of the benjamin n. cardozo school of law and lose anything by initiating the subject of mediation, but we rarely different forms. for example, there is a distinction between evalua- pense of $1.4 million."); jonathan eisenberg, beyond the basics: seventy-five defenses security in private session that they would go to "x" but are not willing to the case i like to approach the demands realistically and i like to ms. mary jo barry: without repeating anything, i think sarbanes- process. one of the things you do in the settlement discussions is know it's going to be a nonstarter and perhaps alienate the de- less than fully solid company and not enough insurance requires a tion and expensive litigation. this litigation might bring greater vis- don't come in with a reasonable presentation explaining why their so often, that case will have to wait until well into the factual dis- being improperly restrictive or had his own self-interest in the case. the personalities of the diation. cardozo's professor lela love has been at the forefront 397 gation as you thought a complaint was coming or your client's done technique that the mediators use when they say i see this case as and it becomes clear early on, that the case was not right for medi- it's different. in private mediation, both parties agreed to go there. numbers. this to break through impasse, with the age old dilemma that if a going to hear how summary judgment, the experts are going to lawyers fail to put much thought into how they are going to ap- no choice. it sounds like a silly game, but there is no choice, but mands, the facts in the case, and timing. message across that this is a range that might work, you may not be greg said, early and often communication with the insurance com- make it. i'm not saying it's this explicit, but essentially the media- mr. berger: that's what you guys do. that's not what's intended. not a "how to" manual on how to mediate one's first securities from the plaintiffs. in that sense, you are partners, and the best lenges and motivations are different. in other words, when dimin- different places on a tower of insurance,6 going to want to do the case. if not, we'll work on the cases that started with the cendant case in 1998. that remained the only in good faith and see whether progress can be made at a first ses- ing up, but there are more issues to dismissal today than there were ing back at it, i realize that the attorney for one party had made it ties may choose to negotiate with careful moves in small incre- develop coverage defenses. implicit in this strategy is the belief as the panelists suggest, the dynamic between the in- mind it. i'm really interested in the science, what defense people grained ideas about the negotiation "dance," to cut through the changed the landscape somewhat. i realize that many of you are the end degree and in order to make the deal, you need a media- settled by ellinson making a contribution in the name of oracle for the discovery stages are different than in other kinds of litigation. they may simply want the carrier to spend every last dollar to set- years. the judges have changed dramatically. look what they did is you get the read of the mediator. you may get it privately or in a first offer. but it differs from case to case. there are some cases parties respond independently and confidentially to the mediator whether they agree to or reject the proposal. if either says no, of the mediator's analysis of the matter. a mediator can present a different; those are smaller to what i would call "onesy," "twosy" ginning, i just wondered whether it's a perception we should have ing pretty high, i think those settlements are going to be getting alan salpeter com- clearly show the number of cases or traditional 10b-5 class actions is worth a $100 million and the other side is saying i think it's a $10 principals, or boards of directors with a proposal that is the product damage analysis and reports and having to fight over what consti- mediator has to be able to articulate the reasons why he or she coach" in each room. we have gone entire days with parties sta- time. having a mediation, any mediation, where the parties don't settlement value of the case looks like and if you can't get there, gests, to "lambada." big cases, the enrons, the worldcoms. those cases have now run mr. rudman: well, that's different. of the plaintiffs driving securities cases are institutional investors, gracious hosts, and we look forward to the opportunity to offer ties world? it's an important decision. michael, what do you ties claim their "positions" are, if they seek mediation, the last ter what they are, of problems that it presents. choose their mediator. their carriers and the plaintiffs with this tactic is an open question on occasion that the relationship gets a little tense during media- estate assocs. ltd. p'ship litig., cv-98-7035 (c.d. cal. aug. 29, 2002)), the rising average settle- there were lots of billion dollar cases. can we have a giant fraud lyzed in the context of large commercial cases with sophisticated have developed trust in the mediator that the posturing starts to prepare based on what we've learned from the defense counsel's have been put on the table, that people have really been asked to us an honest answer. pany. the first time you meet with the insurance company and they will contribute to a settlement. confronting the question of context of the underlying merits. the "evaluative" role that mr. progress entirely through hypothetical traded brackets that eventu- i feel like i've apprised them of what i think the risk is of doing litigation related to the capital markets remains much higher and more expensive in the united cause you're going to cut it in half. few comments on where that's going. does anyone have any ex- strengths and weakness of the case and appropriate bargaining pos- the other side is doing. but i think the first offer from the defense ing companies, it's now spread all the way up the chain to the for- share their thoughts about what needs to happen to settle the case. dating stock option claims aren't going to be the new panacea for ties class action. you're probably going to be six months into the we're kind of tied to this orthodox dance as being the way it's in the case ­ discovery, for those of you who don't know, in a se- got past the motion, haven't even heard a motion yet, don't have but in the mediations at any stage. maybe we should start with the the settlement process. and it really is just so frustrating to de- quent clients are very responsible. i've never had that problem, no discussion of mediation at cardozo would be complete explication. but we really don't know how this will play out a lot work with them, they'll work with you. you try to come up with lay of the land. sion without clients. it is the job of the mediator to seek to identify clients. one of the most over-cerebrated questions is, who goes first? i've mediator is very helpful because really, you have no choice in these money that the company paid for. that's what we see is a huge the mediation of ent settlement numbers than they are posturing. professor love one involved) comes when a company and carrier are not prepared audience question 1: this may be a little bit out of your experi- do think you can learn something and so my view is it often is use- do you battle with the plaintiff at that point or do you just convey mediator to address. for example, one side may not want their bility behind it. you can lose the parties if you don't do it right. or otherwise contends that there are no damages under dura. then you really need to use the office of the mediator to help you. your preliminary investigation and whether you got a good motion lot of different interests. once again, it comes back to having a (1997) (discussing how the roles of evaluative mediation are at odds with the roles of facilitative brackets to try to cut to the chase in a difficult negotiation. parties makes securities litigation mediation so complicated is there are a tion, especially when one considers the enormous costs of going those that are hung up, in my opinion, too much on the process, open? what's your opening offer? how quickly do you move? changed so that the parties know exactly where the other side is eat in fees what could otherwise be used to settle. our only griev- much difference except in seventh circuit where i think they just stand up and say i'm sorry. but, but, there are opportunities from silly process because the demands and the offers get skewed -- discussion from your vantage point? mr. michael goodstein: i think what we're seeing is the end of the so, the stakes are higher and i would say that probably most of the is ripe. so i'd like to hear from the carriers a little bit as to when mr. berger: yes, but you also need to be credible. 2008] securities class action suits 429 one side or the other or the middle and whatever side it's on, the move to seventy if the defense came up to fifty. thodoxy they should be respectful of what motivates the strategic audience questions mediation is determined by who you pick. this learned panel, we thank you for coming and wish you all a 398 cardozo j. of conflict resolution [vol. 9:397 you'll never get a class. sam have to go back to clients with something other than just ute. whether in the end the defendant companies do better with to me, it's a very rational process. cases where you think it's not going to happen. tion is that the factual record and legal posture are not as fully loss causation. so now there's going to be no significant market. mediations, even when such mediations failed to lead immediately party's trust in the mediator will be lost. this is, of course, an over- earlier. if i think the number is too high, either because i think it comment? other than cash. so then after mediation, your financial advisors not just overall market volatility. it's also industry volatility. proposal which is down the middle because that's already very sus- you get there with the help of the mediators. every once in a case before you really know what the case is, then a damage analy- c. role of the mediator and process greg is right. the biggest issues is that these are claims made poli- many different ways as we can. you can't impose it blindly or im- time-to-time for stock deals, warrants, and other creative solutions mr. salpeter: i agree with greg, if you have what i would call an mands and offers: how they ruin my day." it is frequently the once the discovery is ordered, it's millions of dollars. there's a subject to debate on both sides. example, let's say we know we have a case with a minimum of hun- in the mix. simply commanding the mediator to go in the other tion all the time. i know that those of us in the law want all the of the scholarly exploration of this subject.5 case ready for mediation? when are you telling your clients that a action, but it was different and fun. as the reasonable settlement value. so i agree with what greg and of dollars. go in, talk to him, let him know what the case is really did you come to mediation to tell me i don't have a case. do you clearly a case that should be mediated sooner rather than later be- the other side has said. this tool offers the parties a way to per- whom they want to pay a lot of money to settle their case. they their case is ­ find out what max is thinking. the best way to find diator is to balance a healthy respect for the strategy of the parties lawyer's got to trust the mediator to some degree to make that observe that there was an increase in settlements between $2 and $3 million, which 3 judge daniel weinstein (ret.), michael young, & jed d. melnick, commentary, the role the ones i've been involved in, which is several dozen over the last my explanation of that would be the interim effect of the criminal of insurance and insurance carriers in a securities class action medi- ten years ago. and i think classes are going to be a little bit harder to the point. you say what you want to say and move on; neverthe- pleading standards, when i first started working on these cases, this note introduces a transcript of the event and comments probably somewhat useful. there are certain cases where you want 430 cardozo j. of conflict resolution [vol. 9:397 away from the safety in capital that either a low offer or high de- mand gets you when you have to move again. it's tough stuff to do any other party to a mediation can ignore the importance of the to go in that kind of situation. often there are restatements and bothers me a little bit. it sounded to me like you're focusing on the 408 cardozo j. of conflict resolution [vol. 9:397 this introductory note and the accompanying transcript are cause you can assume liability in the case or even reasonable liabil- acceptable to the other. see id. question 3 that going. tor together and letting them know where you're headed and even 428 cardozo j. of conflict resolution [vol. 9:397 fully balance the fact that in many cases they have been hired to mediation. it may not work, but it has some ability to move from feeling that they must retaliate against a high demand with a low 5 case where there's no coverage issues and we're trying to negoti- 424 cardozo j. of conflict resolution [vol. 9:397 the chain. often an early mediation session is a good way to get believe a top-tier company like that would be involved. then it money, but with real returns in the corporate reform, which is judge weinstein started the discussion by asking the panelists more than fifty. by strategically trading additional brackets the follows was intended to highlight and explore several of the main have a conversation about some of the factors that max described ii. panel discussion early stages in litigation. it is not uncommon now to see a case go this introduction to the transcript of the panel discussion that ferent instruments that could be used as part of the settlement erage issue held us up for a year on the scribner's error on the know from mary jo and michael goodstein, whether you feel your soliciting a "bottom line" or "line in the sand" before the take a much more prominent role; but mediation is clearly the way impossible for me to have any communication with his client, to- a good presentation has the right tone, offers a carrot and a stick, mended x, do you think you could sell it to your client and sort of cant towers of insurance ­ someone in that tower decides who mr. markel: it's a major character. if all you have is a message be lower. if ultimately after we've had that discussion, the plain- counsel who have chosen a mediator in part because of his or her they've taken a number of depositions. i never totally accept that. when the parties trust the mediator, they are more likely to break road. it's not always the end of the mediation. i think the biggest ation is critical to achieving a settlement. the dynamic of insur- they're being forthcoming on their financial wherewithal and dif- if counsel wastes the opportunity, and fails to make their best case, id. litigation costs associated with a securities class action suit have long been recognized as fendant's people who sold the insurance to actually cough up the case next year? sure, there could be and it could be a billion dollar mr. markel: yes, but the way you phrased it was not about our judge daniel weinstein: the purpose of this discussion is bring named individuals frequently must collaborate to achieve as part of the mediator's role prior to the session to try to figure and never loses sight of what the lawyer came to the mediation to dozo journal of conflict resolution and professor love were periously with very careful planning and thought. i agree with the made a mistake in the way they approach it. otherwise in most quickly into the traditional trap of making high demands and low different settlement or truly believes in his position (though it may tor's proposal objections, it to lingered and got settled down the it the same way that i'm telling it, we agreed that the company cumulative cost of trying a securities class action through judgment get brought. if not, it's not going to get brought. in terms of the fense, then i will push back and go through why he or she should tribute. it is also sometimes the case that the insured and insurer judge weinstein: let me translate that. max, you believe that in duty is to respond to a demand that you see as very high with a low are ways to suggest it and make it happen. there's been a few case has to make sense for the client and for the law firm asked to evaluative role in a case. commercial mediators must often care- doesn't express weakness. how much do you argue with the plaintiff when they come into a ms. barry: generally speaking, you're dealing with people on both helping the plaintiff's deal with the insurance carrier, helping de- between early settlement in the face of less than perfect informa- plish to opening demand? and is there some science behind it or is money. it's in those situations that the carriers will look over at us goes first. i think you can always raise a subject in a way that decent offer given your settlement authority or where you think they're your partner and they have a lot to say in most cases. they veyor of numbers (something he defines as facilitative mediation) important stuff as to where these guys come up with these and it's also goes to condition, they're not in tower form, that al- counting firms is down significantly. i guess one question is, why? a process designed to achieve an early resolution. rationale when the mediator asks, what's the number? you give a ms. barry: i'll answer it a couple of ways. number one, it's usually most effective at the end of the process because i think, at least in 951 (1997) (noting "the view that mediators act as either facilitators or evaluators represents a costs and is looked to for the settlement payment, and it is an inter- this, of course, is that to the extent these officers and directors en- take out some unusual situations, there are 200 cases a year filed mr. salpeter: i think the best mediators gain the trust, not only of d. breaking the orthodoxy of negotiations is such that you can get to a resolution and one of the things that mediators kind of signal to each side and get a sense of whether and we keep trying to approach negotiations in different ways, and ter for the prospective parties to take to their clients with the rea- ery requests that resulted in the company producing over 1,500 boxes of documents at an ex- question of damages and doesn't depend a whole lot on what dis- ously there are times when the economics for the defendant and enough about your case, you and your client know enough about judge weinstein: do you sometimes initiate it yourself, michael? taining "warrior" credibility with their clients while also pushing tor that in as basically a risk factor, including how large the class is. 416 cardozo j. of conflict resolution [vol. 9:397 mediators, retired judge daniel weinstein. mr. melnick participated in the mediation clinic at form of the parties' reluctance to move and signal interest in differ- policy and sometimes the settlement value contrives to end in a tion in a safe way because an outside neutral force is allowing it. while mediators work to find alternatives to negotiation or- tion in the context of negotiation coaching and evaluation in the ally led to settlement. 6 for example, a middle layer in a tower of insurance may not be prepared to agree to a and if the case isn't right, that's fine, and maybe there was mis- weeks for an important deposition, but put little thought into pre- rience. this is true of the ones i've been in with you and other coming in, instead of talking to the mediator and saying to the me- number and say this is how i arrived at the number. you're not to dismiss? often it will be useful relatively early to call the judge think, was believing both sides and not seeing all the body lan- want to resolve the case or tell me i don't have a case or make it side failed to maximize the opening session. this disappointment and more. and they'll say this is what the mediator recommended. i take a look at all of those potential discounts and whether there pounding. middle of the tower. of insurance that is likely to get eroded by the litigation, and of cation and that trust to be able to do that. contributions from the company and individuals, insurance carriers when there may be multiple "towers" of insurance in play, each in assessing the matter. panelists judge weinstein, michael young, ation strategy. in cases that are largely about "filthy lucre," with the gift was being given in its name. a state court judge in califor- effect it has on the principals on the other side and what it can do. oral arguments scheduled in the coming weeks. danger (for every- have to trust both the skill and the tact of the mediator in order to back if we think it's a mistake and my usual push is that it has to catherine shearn and robyn weinstein for their research assistance. gap in valuation of the case. for example, with the agreement of surance company's money and it really goes to what greg said, tion, you don't have anything, it's a waste of time, spend a few haven't had with him where i ask, "what do you think is the appro- creativity has gone into trying to settle that case even though parties. when there is a wide divergence in views on the value of over is a very important part of the negotiating process, and that is the defense side had caught on, he might start using a higher multi- the problem of course is that the number has to have some credi- little bit less than fifty, you know, if push comes to shove. so it's a dant company should carefully explore creating a partnership with observation that you really get one shot at it, so it's not a freebee. a $100 million. now, ultimately, it was rumored that the money judge weinstein: it also gives both sides an opportunity to come 434 cardozo j. of conflict resolution [vol. 9:397 if they were not just the plaintiff-style damage analysis, but some- mr. goodstein: i think what is interesting is the absence in alan's litigators need to know, 62 bus. law. 1281 (2007) (citing a march 2007 independent, bi-parti- that's going to exist in all of these cases, insured and carries need to that have been filed in recent years and that trend is, in my view, ball offer because otherwise, they'll mislead the plaintiff. i want to of expert reports, litigating motions, and the review and production mediator, the dynamics of the personalities in the room, initial de- them to settle the case if a "reasonable" opportunity presents itself. way to be partners in doing that is to have a good exchange in policy require a functional approach."); john bickerman, evaluative mediator responds, 14 406 cardozo j. of conflict resolution [vol. 9:397 judge weinstein: okay, this has the potential to get contentious. parties to the mediation ready to be reasonable? as carrier's coun- mr. goodstein: it always amazes me in the run of the mill cases, the issues beneath the position of the parties and work to design a mediation); kimberlee k. kovach & lela p. love, "evaluative" mediation is an oxymoron, 14 mr. gregory markel: i agree with a lot with what has been said, the "mediator's proposal." in short, at some point the mediator claim that it is the most likely number that will serve to settle the ble insurers and insurance lawyers, and you figure out a way and tutes damages. you can mediate a case like that as soon as you "dance" and move the parties forward, or, as judge weinstein sug- asking the mediator's advice, letting them know where i'm headed, mediation. to the third circuit. it just transformed. may use brackets hypothetically while still positioned comfortably sides who, if they're both willing to mediate, they know it's a possi- 2008] securities class action suits 421 more a part of the process. nomic research associates), puts out data every year about the them, then that's a big tension reducer. the mediator and that letter is not given to the other side. i think bility to get somewhere or they know that they may have some we wanted to have a little time for some questions. you got such a reevaluate their decision to settle a case). 410 cardozo j. of conflict resolution [vol. 9:397 tion. however, i think we've seen a decline in the number of cases to play in?" i can't stress enough the success and failure of the i. introduction to certify. the real case is ­ you got to be able to survive a motion movement in their position, otherwise they wouldn't be willing to bly more difficult for a mediator to survive a failed mediator's pro- sure how much effect that's going to have, whether or not the same the client to hear the other side of the story. don't get to talk to your client. however, it ought to be short and only at sort of the end of the process. let's put it this way: they're ments. moreover, sarbanes-oxley, i think, has had an effect. now the question of what do we mean by early settlement in the securi- about. that's going to help me get this case resolved. his disposal twenty cases to dismiss the case. the reason is because mr. markel: i thought it was a third. the panelists engaged in an entertaining debate about tlements are to a great extent the product of the excesses of the cases where there's plenty of money around. judge weinstein: michael? settlement ­ resisting the urge to define it as a one day affair.3 panies happen to be trading at $20 get bad news, it goes from $20 panacea for a lot of basis. move to that spot as an official negotiation position. the second is 2008] securities class action suits 409 nity to speak directly to the other side, the decision makers on the bally what each side has to say. but it should just be very well for years up until about 2005. they're now running about 130 a mr. markel: but it may not make sense for the economy. action costs, but also protect individuals and their families from the telling me about what his clients want to do and their evaluation of from the defendant's standpoint, they would be perfectly willing to their course and we are cycling back to a time when we're dealing to get in that position and tell you the case is no good, you're lying merits and what that party's expectations about the "best ments not only offer the parties the opportunity to minimize trans- make a demand of a $100 million and the defense thinks the de- in moot court. the process itself has some wisdom to it. so i sug- ally sort of get the discussions within a more realistic range instead company and directors and officers, funded by insurance and dis- tween the two. when i was talking about them being partners, i agree to a certain range for a possible settlement. while there is no should pay. yet others, both earlier lawyers and later lawyers are 402 cardozo j. of conflict resolution [vol. 9:397 does not fit all. one of the early things you got to do is learn your room and find out if the other side is going to be reasonable ­ ms. barry: i would point out that sometimes it's not just the car- really a shame, the case ultimately settled about eight months later day? together the top people representing some of the top folks in dif- the panelists discussed three mediator tools and strategies have a rationale that's credible. it should be at the high end of b. role of insurance to the conduct. that is troubling to me. it doesn't sound to me that relationship and its portrayal to the plaintiffs. for example, a these cases. i can remember cendant--lawyers with me couldn't settlements.pdf. sometimes lawyers just come in and leave it up to the mediator. dictated by what the plaintiff's demand is. $185 million in the 2002 central district of california real estate associates case (in re real intervening when appropriate can sometimes make the difference out as well as the opportunity to go back to their decision makers, mr. sam rudman: we immediately assume the opening offer is cases that we have handled over the course of the past several help you in the process. rent and former officers from defendant companies are frequently down and ask, "what is the basic information we need to evaluate 2008] securities class action suits 433 can pick up one or two things that are valuable in your practice or forward. the fact is, that while the record may not be complete, of mediation, the role of insurance, process related issues, negotia- mediators will tell you is that they recognize all of the dangers pro- between the parties, and counts on the mediator to help assess the which i think has sobered up a lot of people. the volatile stock market now will bring about another kind of case ­ the numbers should be trying to find a way to get the lowest possible number eters where you think the case is settled where you think it's worth mr. berger: i generally think comment sessions are a waste of ate?, 1 cardozo online j. conf. resol. 1 (1997) (debate between professor love and profes- on this topic, but what's implicit in this discussion that we skipped diation ­ something that would never happen with an opening or gest to you to try to do it. let's talk about mediator's proposals, mr. berger: i'd like to see a situation, you almost never see it, you dition for participation in the mediation. for instance, one party is a meeting place. the mediators must trust the lawyer and the percentage of cases settling for less than $1 million. however, for the same year, we what are your tips for getting it started? when in the securities class action for stocks. so it's the volatility in the overall market. panelist mary jo berry suggested that regardless of what the par- $18 ­ that case isn't big enough for max or me to do it, even if we panelist greg markel made clear that he counts on the mediator's benjamin n. cardozo school of law welcomed two prominent lawyer is. you can't just overtly go around the lawyer. but there i see it, i read the written presentations, i heard the arguments, i has made a decision that they're not going to settle it. which by the way means agree with me ­ is not a productive way to mr. salpeter: i think it's more dictated by insurance company, settlement. but i don't think you'll see a series of them like we realistic levels on both sides relatively quickly and find out if there recovering from this choice. one of the process questions for a first offer. on. if the securities class action suit folks who have come today where the truth is. my attitude is always this: if you want to medi- questions that you wanted to ask. i do have a few remaining top- sustained. but very often, witnesses will approach us to mediate we try to test the potential territory for a mediator's proposal in as jail and some of these mega settlements that max mentioned, come down and opine. it had nothing to do with anything. it's late `90s ­ the high stock prices that we saw plummeting. issues. if the motion to dismiss hasn't been decided, i have to fac- ment package and that defendants are able to prevail in litigation could make companies 414 cardozo j. of conflict resolution [vol. 9:397 after much spending by both sides. it was the mediator, who i mediation purposes only that might advance the ball," and plan a yes, people change. it's like a game plan for a football game, you one other factor ­ you're working with the insurance company. don't really see much more of on the horizon. i agree that the back mr. markel: it's also a disaster from the different lawyers' stand- discount to the fifty-percent mark. but i think the most important up stuck high and stuck low at the beginning. it's difficult to get mr. rudman: we get that from the mediators a lot. you'll hear ple's memories fade and they forget about pre-sarbanes and they "wanna lambada," or who look to brackets and narrowing rather judge weinstein: this was a helpful overview, and we didn't even judge weinstein: we are firm believers in the value of an early and directors (matthew bender & co. 7th ed.) (2002); allan windt, insurance claims evaluative type mediator, in my world, there's sort of two types: while a defendant company may have reasons for leaving its it's the company pushing, it might be the carriers who have a tower such discussions at cardozo every year. biggest difference for me lately is the volatility. cases where com- benefit is cover from your client. here's this neutral third party carrier, someone who is just going to take the bid back and forth, discussion on just those if we wanted to. the purpose of this was to may decide that rather than continuing negotiations, he or she will at 1 and 100, but the defense may suggest that, hypothetically, it evaluate early on and have a meaningful discussion. i also think that in the right case a carrier may move quickly to close an attrac- 2008] securities class action suits 425 mr. young: that's from the mediator's perspective also. tiff's counsel says to me thanks, but this is what i'd like to do and if judge weinstein: let me just ask mike young one question first. jams mediators, judge daniel weinstein (ret.) and michael tate a limited document exchange, targeted depositions, expert re- the hook in" and motivates aggressive movement from the proved, that it gives sort of a blessing as well? that's an efficient way to regulate a market or an economy if what lose confidence in the mediator's neutrality (or worse yet believe negotiation move that eats their entire layer. see jeffrey r. seul, settling significant cases, 79 in this venture. i assumed that in my earlier comment, of course, second, the mediator must decide what to do when a party mr. berger: i think that's where it is. likely to level off or actually increase. we've seen significantly pends on the judge. it doesn't matter what the law is, depending ings is a direct result ­ in my personal view ­ in the decrease in only thing we can do if we're going into this mediation because we conditions are important to the party can identify issues for the plier. judge weinstein often refers, with tongue in cheek, to a mr. markel: yes, that's true, there are these issues that keep com- san commission report from the u.s. chamber of commerce which observed "the level of civil their point of view. typically, it is the carrier who is paying defense time. i won't run around defense counsel and talk to plaintiffs tor's proposal, but i think if it comes too early, it doesn't work and formation, but here's my take on it. i think you have real damages can send your investigators out there working and interviewing wit- ance and the coverage issues that can come into play could fill mr. berger: i think they're very effective, particularly if the media- likely to have to confront the underlying risk analysis of each of the lot of creativity, and i am aware of a case where judge weinstein so much the positions, but where we are in the litigation and what mr. markel: i wanted to comment on one thing you said. it developed as they might be if the mediation took place on the and jed had been involved where there's a company that is not in 420 cardozo j. of conflict resolution [vol. 9:397 but there are some situations with different policies or different being more expensive than settlement. see s. rep. no. 104-98 (1995) (the purpose of the handle parties when pre-mediation positions make the parties ap- one party tells you that its bottom line is "a" and opposing counsel securities litigation. in fact, "[o]ne [congressional hearing] witness described the broad discov- with more bank cases. we had telecom cases. maybe now it is fense lawyers and insurance lawyers as well as the mediator. it's the lawyers, but of the principals and create over the course of a pending motion to dismiss, or you have a vast disagreement as to tional cendant case or enron shareholder case. i see those as very use the all principals you can in the negotiations themselves, espe- claims its is "z," the challenge for the mediator is to balance a tioned at the same "official" positions, while making substantial with numerous layers, sometimes based on different configurations have was a restatement; proportional fault, judgment deduction, who am more of a human dynamic in those. i think that's it, folks. and to there's an interim effect; as management has gotten concerned be- 2008] securities class action suits 435 mr. markel: i think your question is a very good one because obvi- there are years where there are more oil and gas cases. then years understands what the defense counsel's knowledge is. and it also case is strong; rather we tend to see a lot of chest-beating. keep in the litigation. 5 see lela p. love & john w. cooley, the intersection of evaluation by mediators and judge weinstein: other comments on mediator's proposals? case and put out what you think is an unreasonably high demand? the potential to increase this dynamic. when all else fails, some- using a cost basis analysis. if the case is right, the case is going to i think of the insurance industry as a business have reasons to get mr. michael young: i just want to ask counsel at the table, i've is a mediator and part of the "weinstein group," which is led by one of the nation's preeminent 432 cardozo j. of conflict resolution [vol. 9:397 but that's part of the world we live in. manage the other party's expectations. if you have certain param- case and to establish their own measure of damages. the large set- together with plaintiff's counsel, the company would pay the fees ing, business-oriented solutions or things that can be done for the time. it does happen and when it does, you hope your relationship mr. salpeter: i agree with that. it's important ­ you don't get to may give the parties valuable information that helps to bridge the might demand that the other party agree to a minimum offer, or judge weinstein: when i prepare a mediator's proposal, i often ibility to the case, but it also might mean that the defense burns thing ongoing between the parties. ate before we have an opportunity to get documents and discovery times all the mediator can do is slowly drag the parties closer to- is down. certainly the number of lawsuits against the major ac- factors like getting contributions from individuals and corporate thoughts about opening demands? do you just do it by instinct? decision. for example, cornerstone research suggests that the av- someone once said to me the particulars required in the case de- mediation statement should be exchanged. you could have private mr. young: how important is the rationale for the number? order to be effective you need to leave yourself considerable room, to dismiss when you have a real case. son. so there are situations where things other than dollars are mr. young: that's interesting because as mediators, we spend a actions is way down. there is data out there that i am sure some of and now a case gets filed. i think a big challenge that dramatically ing, look to people who are a little bit tired of the orthodoxy ­ who dropping down, the use of warrants or options, and cooperation the insurance world? 2008] securities class action suits 427 they've been mediated by a handful of very experienced securities pay me. i always look for a mediator's recommendation and what vide practice tips that may be useful to others, and to try to suggest company failed to involve its carrier or carriers until the last min- nia's san mateo county, rejected that agreement. so we had to go ence, but i recently had a failed patent mediation in miami. look- what they will be up against. it's obviously also an early opportu- opined on all relevant legal obstacles, doing so may be extremely way. so i don't really see much of an impact there. i think the mediation statements, but everything else is coming through the session useful or just a waste of time? to the question of when. i think the answer is, it's when you know like the issues were there before dura. you had those issues any ticulated above, is no different than the problem solving or impasse strategy around those questions, we can have often a meaningful times when i felt a duty to do it when i really felt the lawyer was max berger, i will to start with you ­ just start with the idea of prevents the baby step approach and a lot of the insurance com- fifth circuits with respect to getting classes certified ­ a process a lot of investigation by talking to key witnesses. so by the time what messages do you send? what's the ultimate strategy? far apart, even though they may be more than willing to participate volumes.4 mediators ­ judge weinstein is certainly at the top of the list. same thing at stanford. so there's certainly data out there to where we represented larry ellison. ellison sold a billion dollars and appeals.2 ate the most reasonable settlement we can, the carrier must be in- experience with securities cases is with the institutional clients on breaking that mediators have to confront in any mediation. in a i negotiating with so and so forth. it sounds complicated, but then, negotiations. but if your defendant bid is low and the plaintiff bid orchestrated for that purpose. mr. goodstein: that's the problem, there's always an assumption difficult to push a carrier to rush to make decisions about whether the challenge that the panelists confronted was how to ap- where a complaint has been sustained, but yet it's at the early get all those parties find a common ground. you know, the shuttle diplomacy, the back and forth and those who ments of private matters are merely an effort to avoid litigation costs and that therefore the sec diation really suggests weakness. i think a lot of companies get litigation has secondary personal consequences as well. cur- the expectations of plaintiffs who might otherwise believe that the diator, listen, you know, if we can get them to lower that demand 418 cardozo j. of conflict resolution [vol. 9:397 422 cardozo j. of conflict resolution [vol. 9:397 all of the billion dollar settlements have taken place. i suppose it answer of any discussion about who was going to pay for this leagues do it, we talk to the parties beforehand and try to get a never know whether they agreed unless there is a deal. the panel- the inflection point of the case, where is my weakness, where are going on in the other room when there's some screaming and mr. goodstein: judge, i agree generally with what everybody said ments. let's see if greg wants to jump in because this is really tion techniques, and the role of the mediator. cardozo, the car- on liability and great arguments on damages and you can get this in the case. so if you're in mediation you got by the motion, you're get a case certified, i do think the current level class actions, if you course it might be the plaintiffs who might want to settle early to would move to thirty if the plaintiff came down to fifty. parties do particularly good financial shape, doesn't have enough insurance, mr. berger: well, carriers were both described as down the middle was concerned that the carrier would use the advance warning to a panel discussion hosted by the aging their expectations is important. but even a failed early medi- worth of damages and cornerstone saying the defendant is owed that we are operating? need to do investigation. i hear a plaintiff's lawyer say a lot of proach, they don't like putting $5 million increments on the table. tle. whereas the carrier may be looking to settle for what it views ment that we think would have the slightest bit as not being reasonableness, but it should be at least within that ultimate range sured and the insurer can easily become the focus of the mediation, where the lawyer's interests are lined up with those of clients, the clients to fly in from europe if it appears that the parties are very the insurance company are different. there are certain times when posture. cient working relationship. there are several competing plaintiffs and a tremendous amount of factors in dura. we have rulings on them and some trial court rather inefficient. with the more garden variety securities cases that are more prone back to the drawing board; ultimately larry paid the fees person- and the client thinks it's worth. and the earlier you get the other his opinion of what he or she thinks about mediating at a particular weinstein said, how do you get through that? there are formal out being subject to any kind of cross-examination. so, that's the mr. berger: i'm sure both sam and i would never agree to a settle- of the attorney, structures the caucus room so you're talking to expectations at an early time in the case. it's an early peak for the differences in expectations prior to the mediation. lawyers frequently tell us how disappointed they are that the other rev. 727, 742 (1995) ("[a] survey of 533 securities class actions pending at some point between after they have started the mediation and see some progress or as he or she discusses alternative brackets with the parties. this client in a persuasive and meaningful way, and most importantly settlement appears. millions of dollars a month due to the expense of the preparation that out or whether we should just be there and play it as it comes. the past several years have seen unthinkably large settlements in triumph of excessively formalist thinking at a time when effective dispute resolution law and mr. markel: it does and what i did say, you and one of your fre- go through a little bit of what these mediations involve and to talk ing numerous securities and antitrust matters and cases related to mega corporate disasters fol- ternatives to the typical negotiation process allows for an exchange of information and analysis. this exchange go forward and never take the representations about position as tive deal, but given enough time might otherwise develop coverage question 1 pslra and the dura case. i personally don't think tellabs makes we keep getting different permutations and combinations, no mat- rationale and the reason behind it, they have that available from judge weinstein: let's leave it at that much and get some com- mr. markel: i think this is one of the reasons why a very good in 2002, the majority of cases continued to settle for less than $10 million. in fact, mr. markel: and then triple? clients, you said max or i won't waste our time on this case. or, we'll sometimes get a damage analysis on a billion dollars is frequently driven by the insurance company, at least in my expe- and emotions. although interestingly, with the advent of the pen- judge weinstein: sam, what's your philosophy behind your open- that the source of cases is often distributive or you're looking for a ance is that the preparation for the early mediations is very low. our case and what kind of damage analysis could be prepared for entering into mediation as long as i feel comfortable enough to do it can be done without the back and forth. i like the bracketing to give them an unfiltered explanation as to the risks of the case. stuff up? maybe forever. if, on the other hand, you informally can get a one step further. in order to eliminate that fundamental tension cies. if the insured knows what the universe of claims looks like, give their opinion, and that the parties on both sides are relying on nothing you can do that's useful at all in trying to settle the case, in fendants are scared away from that reasonable opening offer by 2008] securities class action suits 399 have a lot to say not only about what the opening offer is, but also not the billion dollar cases, that plaintiff's lawyers don't take the tors, or because i know enough about the defense perspective to offer to under $50 million and i think max's demand of $200 mil- etarily. the carrier needs to know early on if the expectations are tor is trusted by both sides or is well known for their fairness to named judge weinstein is my mediator, there isn't a case that i represents a misevaluation of the case based on the relevant fac- case, figure out whether you got a good motion to dismiss. there's talking to the mediator and putting ranges out there the carrier pleading matter, it's a real non-issue on an expert basis. it seems larger. the past five years have seen ever increasing settlements. mr. markel: i think the answer to that question is, if you're talking thing like that with the tower insurance because the money's all in the cases that you bring, then we will have been successful. will take a look at my damages. i will try to look at the damages as solid economic facts?" so sometimes the greatest challenge is the evaluation); lela p. love & josh b. stulberg, partnerships and facilitation mediators develop trends and developments in the area of securities litigation, to pro- the plaintiff's bar. these claims are coming in the form of deriva- communication or a disconnect, or maybe just an effort to take a off the chart on both sides ­ if the defense thinks "i've got a clear what's the ultimate number? all of those areas are potential and plaintiff lawyer sam rudman comments that one of the major that they have seen used effectively to break impasse in media- tor is saying if one side is at twenty and one is at fifty, if i recom- thing a mediator should do is call off the mediation. implicit in this possibility of a constructive day and the possibility of settlement. amount of damage and the potential gain in the lawsuit as opposed insurance carrier lawyers mary jo barry and michael goodstein. sel, to a large extent, i have to rely on what defense counsel is under the subsection "conditional offers," the author describes how bracketing can help jump case and to do it with less than perfect information. in order to do much, any of those types of things in this world? http://www.orrick.com/fileupload/648.pdf (noting that although a jury awared a verdict of over over the last few years, the "weinstein group" has seen the par- used in a settlement process, but they're often not in the biggest of difficult for plaintiffs today between the pleading standards in the and figure you'll get back to the plaintiff later? haps move further than they had planned to move and to "blame it make a proposal of what should happen to settle the case. the forced to participate in high profile litigation battles. early settle- young, esq., to a symposium on the mediation of securities class lawyer and a great opportunity for the client to hear a little bit of glaze over when we ask people to make reasonable demands be- class action. however, numerous practice and process tips came the world in which we live. so clearly the stakes were higher. the on whether the mediator can survive a failed proposal. it is proba- there's not a huge amount of money in that case. some of the had a number of experiences where the case comes to the mediator worth of oracle stock about a month before the announcement of plaintiff makes a demand, the mediator has the right to say what is want to come out. judge weinstein: now, you're lawyers, so we know you're giving approach the whole mediation and our position realistically. so i to facilitate the relationship between insured and insurer might coordination with a defendant on a pre-mediation status call and example, michael young sparked an interesting dialogue on how to type cases against individual defendants. so i think the number of defense counsel. you don't have a case. it's only worth x amount and disputes: representation of insurance companies and insured (1995). bigger problem for the plaintiff down road is the whole efficient make a mediator's proposal. in other words, if the proposal fails, it avoid adverse rulings, bad discovery or forcing defense counsel to and in conducting them. an immense amount of commerce is happened in waste management and other companies, and by `99 not experts in securities litigation, but proving loss causation, as of view, it sort of depends. i don't think you can make a statement. easy solution, sometimes the process of working through why these the people in this room are familiar with. nera (national eco- on the judge" but to do so in a safe way, because the other side will tiffs, so the stakes are higher in litigation. to the extent cases have business people make hard decisions on less than perfect informa- tion, part of the negotiation is setting expectations and trying to speech he likes to give to new mediators entitled "opening de- it just voodoo? question 6 both the attorney and client. the harder question is when there is corporations. i do think that the new round of cases ­ the back days, so often, the towers are made up $10 million at a time as multi-billion dollar settlement for at least a few years. but now, my strengths, where are the dollars going to come from to settle the case when motion to dismiss is pending or before it's made of the ingrained orthodoxy. they're just generally much more mr. salpeter: one other benefit of early mediation even if it fails, admitted fraud where old management's thrown out. the com- damage analysis? sure. all of those things are important to quan- it's usually the insurance carrier's money, plain and simple. some sometimes a symbolic or a real contribution from an offending in- mediation strategies from the mediator's point of view, 1 ass'n trial law. am. 577 (2005). mr. goodstein: but at the end of the day, barring coverage issues, is likely that one side or the other (or both) will be disappointed 9 tellabs, inc. v. makor issues & rights, ltd., 127 s. ct. 2499 (2007). what you're dealing with given the structure in the time of a securi- party to move in a productive way. doesn't know about, it'll totally backfire. so talking to the media- ance carriers, risk managers, and principals on the other side, and that they can settle the case. there is an economic difference be- kind of been a mixed bag between plaintiffs and the defendants. suit or traditional intra-business relationship where there's some- tify the reasonableness of what a settlement should be. but until a boom. there were a lot of abuses. in the securities class action 400 cardozo j. of conflict resolution [vol. 9:397 like the bracket approach. that's been my experience, max. forced to settle simply to avoid defense costs. in 2002 there was a decline in the 2008] securities class action suits 415 the face of a weak presentation. good evening. thank you. alt. to high cost litig. 31, 31 (1996) (illustrating some of the pitfalls of evaluative media- there's a reason why somebody wanted to go there. parties are ultimately at the end of the day, you want to look at where you ments, such as how settlement numbers contrive to appear at negotiation techniques, and the role of the mediator. a. timing have the insurance company spend a little more to settle the case mr. salpeter: one case that judge weinstein mediated is a case that the carrier will pay. but, if we are talking about a typical 10b- party does not like what the mediator has to say, it is likely that the the introductory note and the transcript of the panel discus- strategy. does it make sense to do an early mediation, based on the plaintiff and where you think it's ultimately going to end up. green, don't make your problems our problems. in one case, a cov- helping you get enough on the table. so you try to settle it, so you back dating. i don't see this as the same type of case like the tradi- e. conclusion judge weinstein: or that someone has to save something off their you're going to have more tension. if you've talked with them mr. rudman: that's right, in the end. all our contingent cases when the parties are close to the same number but limited by a lack mediator called up and said "i think you're too far apart," and thing for the client is to go through what max described and have a sis and factual investigation. so you're well into the case before well as meeting the burden of intent to deceive, is higher for plain- years have been mediated. so that's clearly a real difference. field is a case ready? insurance money was readily available. the challenge for the me- and get some comments on them. we seem to be using them more you may know a lot early on because you've done a lot of investi- one of those benefits is the opportunity to manage your client's on to the next one, first it was ciena, surviving on that. then it was inexpensive, but well deserved, you're the best ­ but in any case, i reliance be presumed in securities class actions?, 63 bus. law. 25 (2007) (citing grundfest, sons often keep the defendant or insurance company from making very difficult to deal with somebody in the middle of the tower and ing to get it. if there wasn't a good faith arm's length negotiation, late notice, to participate in a mediation. it is also true that it is discuss the case should not be at the mediation, if that's what's hap- coming in this bracket between twenty and fifty. i'm not saying whether a plaintiff's traditional opening offer is generally double or tion bar, including plaintiffs' lawyers max berger and sam rud- he thinks of the case and where it has weakness and where it might so they're coming to an end, but there's a new generation of cases covery, or sometimes even to summary judgment. you're doing is not focusing on whether the conduct is bad, but what kind of strategy goes into it? what are you trying to accom- liability discounts are, time delay of payment, the class certification when the parties are able to report that the mediator is overseeing a look and go through an analysis in my own mind as to what the ball offer or are you dictated by putting out what you think is a ing filed. quently require "expanding the pie" and a tremendous amount of fense efforts to settle cases. successful mediations often result for the defense side. working through coverage issues, particularly communication. but there are different economic incentives be- the case, it is the challenge of the mediator to design a process that priate response to a particular demand," or, "what do you need to gether and hope that in the process the "hook goes in" and a places, there are problems coming are in the class certification de- mr. goodstein: a lot of plaintiff's lawyers, for some reason, don't stages of discovery in the case, and i'll say listen, i'm happy to do from the mediator ­ i know you don't want to make a presenta- mr. sam rudman: since the passage of the pslra up until about less than it's worth. but i think it's good because in any negotia- lack of preparation ­ often by great lawyers who might prepare for tunate ten. the answer is most of those companies have been sued now, including a lot of consumer class actions, but they still have to medical foundation which is a legitimate foundation that looks company, large damages, and lots of insurance and disputed facts. april 1988 and march 1993 found that [f]ully forty percent of the settlements were for less than have the first set of plays ready, but then you adjust based on what opposing counsel might fear pushing their own clients to settle in ation, and will tread extremely carefully when and if they act in an whether you make it a practice of ­ the client is there, but he's told what you can do is if you have a good mediator, and a mediator to mediation. but these are not billion dollar claims, and which we would bring plaintiffs back into the realm of the ballpark we want taking advice on a good place to start given the demand. in most had, like enron, adelphia, et cetera. about it is that it provides little opportunity to come off your posi- other side. we applaud folks who want to take on an early media- audience question 3: the assumption in most of the discussion is to trial.") (internal quotations and citations omitted); roberta s. karmel, when should investor case, provides an opportunity to develop a partnership with the in- securities litigation (2007). analysis that i looked at in this bracket. it's a good technique and the complaint's filed, you know a lot. the other extreme is you surance carrier, and can produce discovery that might be valuable can be helpful in terms of managing expectations and talking to the ing to stand ­ except in the northern district of california. own hypothetical bracket, suggesting, for example, that he would 426 cardozo j. of conflict resolution [vol. 9:397 frustrating day that could do damage to the process against the panies or insurance counsel as their partners in mediation. i notice what "moves" a party might make to achieve the best deal, while able offers always agree to think it over and then they always end avoid. sometimes you may avoid making a lot of formal bids. gives them cover with the court at the time the settlement is ap- as to where the case ought to settle. but let's say, hypothetically, i constantly searching for the lowest number they can find that "puts 2008] securities class action suits 423 an evaluative approach is useful as a "last step" before litigation, so that parties can understand take effect. when it started to take effect, we were in the middle of mediate. i think it's the securities class action people who go to covery in the case is. so now we focus on damages and exchanging types of defendant offers ­ either we can't respond to that offer or the mediation process, to get cut through that bidding process even market volatility. recently, in the last three or four months, from parties risk analyzing cases in similar ways at given moments approved. suggest they would, when they are further apart. every step that a of course, you get these cases where defendants want to mediate a offers and taking "baby steps" toward some point between the two. for practicing mediators); lela p. love & james b. boskey, debate, should mediators evalu- did i lose, what are the market losses, is it something worth pursu- donald levine for their help in editing this article and to jeffrey mailman, whitney meers, ation. this is particularly true early in litigation when the chances less than perfect information. the statistics highlight this difficult could pay the legal fees; that is, as part of the package that he put judge weinstein: so all we need to do is divide your demand in ment is a straight cash settlement paid by the named defendant the table and sing kumbaya and reconcile. i've never seen sam the people on this panel who represent insurance companies, if you ture. michael goodstein also commented that in every case he has delayed bringing the carrier into the process because the company of the cases that i'm involved in, that is how matters usually start. i cardozo under professor lela love and has since been involved in over 300 mediations includ- pening, or if you talked to them a couple of days before, then forget about the settlement to enron and worldcom. i am not probably going to learn something about the other side's position distinguished panel here and some of you out there may have a few while limited and rapidly diminishing resources may often be court. you can't get any discovery. with third party discovery, you about some of the decisions that these folks make in bringing them tween defendants and insurance companies at certain points in are greater that insured and insurer have not yet developed an effi- information we need to exchange. the presumption is we always these days, particularly in the larger cases where there are signifi- erage issues between the insurance carriers and insured. panelist different reasons economically, which ends up resulting in cases be- settle. i would be concerned if the mediator made that determina- ter dura, no damages. i mean it's just dura is being used as a sion that follows should make it clear that understanding the role analysis of the merits and value of the case. supra note 2, noting that professor grundfest "argues that a substantial percentage of settle- dating matters ­ is nothing like the old round of cases. as michael highlights the eternal tension for counsel trying to balance main- accomplish. you're there to see if there's a reasonable settlement things done earlier, to take a gamble to put the tourniquet on the the second concept was the use of brackets.7 panelists also agreed that an early mediation can provide a valua- participants valuable information about how the other side sees the need for institutionalizing a flexible concept of the mediator's role, 24 fla. st. u. l. rev. 949, high because you are going to be pushed to the middle, you have ment. it was a derivative case. it was not a shareholder class part of early mediation from plaintiff's standpoint, defendants like 7 for a brief discussion of the practice of brackets, sometimes called conditional offers, see parties learn additional information about the other side. in the directly. said, i do think that we've probably seen the end of an era where to dismiss has been filed or answered, and before a single deposi- plaintiff. one other example of the use of evaluation in a mediation is front of a judge who has thrown every case in front of him and he's standpoint. you can do that pretty early on in the process, but you make reasonable demands and defendants to counter with reason- to consider the advantages and disadvantages of early mediation. the ethical boundaries of mediator opinion-giving and advocating informed consent in mediator in the end, and all the panelists agreed on this point, a defen- a wasted opportunity for the lawyers. a lawyer would never waste berg's problems, i think may have contributed to fewer filings. pany. however, a lot of those tensions can be alleviated by, as ishing resources are not driving settlement, the mediator is more doesn't work early in the case. in private mediation with a judge, ten years, is that the mediator sort of gets one bite at a mediator's like to hear some comments on the philosophy that you apply to thing i could really sort of be very comfortable with. i'll then take less it's important. the exercise of an evaluative role in mediation can take many nesses, but you can't get any formal discoveries until the case is relationship between insured and insurer. an exploration of the people controlling the "check book," and the failure of the other you can point to that. i think the biggest benefit of it is it helps you event, we settled the case. judge weinstein, i hope you remember securities class action certainly after 1995 when pslra started to that truly mandate a baby steps. many times it has to do with the that the heavily litigious environment imposes significant costs disproportionate to its benefits.") done. so for those of us who try to find different ways of negotiat- rier in the middle of the tower who doesn't want to pay, but these deal" should be. tion); but see jeffrey w. stempel, symposium, beyond formalism and false dichotomies: the side's case. so i think the answer to that is, at least from my point pretty hard-nosed economic analysis, and the play of personalities valuable information is conveyed by the use of brackets. for cases are approached by the plaintiffs, a lot of time by the clients board of trustees or some kind of board has to answer to people before dura, the damages could have been billions of dollars. af- over [forty] percent of all cases settled for less than $5 million. historically, cases answer. cases can get settled that way. does anybody else want to have a culture that is used to bidding high, bidding low and one of lion is way too high. you get honest feedback from the mediator. bad spot. it could be right at the end when somebody has to ex- suits against other defendants. while the negotiations may simply than spending the day in the bull rushes it's very difficult because gaged in fraudulent behavior that ultimately led to a stock drop, it the bad news and the stock dropped very sharply and that case was may publicly air their internal disputes, or allow the mediator to making sure your insurance carrier has knowledge beforehand and coming from. the comment sessions that are well-orchestrated, making decisions about how to open, not just in early mediations, mr. berger: for whatever reason, it's interesting. i don't think you cause we want to get out before midnight. we invite plaintiffs to through the available resources in the process. think it's a great case. then that stock goes from $20 to $10 today, and pre-motion dismiss. if we get some documents, do we have a is going on. my first question related to mediation is, when is a market. once the plaintiff survives one series of attacks and moves insurance company. i agree the insurance company is the partner get the hook in and have a negotiation as opposed to having an i know it's going to take some gambling on both sides, but a lot of sometimes people will embrace a different approach, but its very review, available at: http://securities.stanford.edu/clearinghouse_research/2002_yir/2002_yir_ mr. salpeter: do the plaintiff's lawyers at the table think that it mediators are who able to create that relationship, that communi- ent, even with lawyers that i have great respect for. you want to sion funds and others becoming more active, there are sometimes of documents. it is not uncommon for both sides to have to choose its insurance carrier. timely partnerships allow for aggressive de- securities class action suits goodstein refers to is in the context of negotiation coaching and tion not on liability, but the company's ability to pay and whether dividual. so the human dynamics of it are becoming more preva- but not everything. i think that a lot of what we are seeing today question 5 half and take ten percent more off and we got your number, right, judge to advise his side on bargaining posture during the media- nobody's interested in doing that. so we need to focus our atten- field, i think, the rate of dismissals has doubled. it's much more that the mediator is no longer on their "side.") a motivating factor in early settlement, panelist michael goodstein didn't go forward. i never used that mediator again. but it was ble opportunity to set the initial expectations of the parties, includ- that said, we have seen every variation of settlement, including hung up on the question of who goes first, not just when, but who mr. rudman: i do. i agree with what max said, which is the worst talk to the other side directly during the course of the case and they is going to cut it by fifty percent. it's really weird, if you demand a defenses that change the levels at which they were willing to con- gotiate and in the right cases, as greg says, puts the hook in. de- locked into those numbers if you do it through a mediator, i think. max? proposal based on an analysis of the merits of the case or simply judge weinstein: sam, do you agree with greg's general early me- the posturing and find a constructive way to confront the inevitable curities case, discovery is stayed until defense is sustained by the closing statement at a trial. the common session may well be the defense about mid-points and giving the wrong signal. these rea- with before, you know where he's going. i think carrier and de- 2008] securities class action suits 417 must act to make meritless claims more difficult to pursue"); but see michael tu, upping the alan are saying about the sharing of information. i would take it ing about. an evaluative mediator who you trust to tell you realis- through the "orthodoxy" of negotiation and posturing and candidly p. love, the top ten reasons why mediators should not evaluate, 24 fla. st. u. l. rev. 937 opposed to what you used to see ­ $25 or even $50 million policies. getting people to break the orthodoxy of negotiations, as ar- mr. berger: well, it puts the heat on the mediator. just like if a never believed that raising the idea of settlement resolution or me- want this much, you're locked into that number for a long time, or "windows" in time. these windows might be the result of im- talked to each of you before we met. yes it's less than perfect in- pear hopelessly far apart. in the lead up to the mediation, when ing. if they haven't lost a lot of money, people might say it's has more to do with the fact that it is more difficult to plead a that, then i'm there to do that. but our role is to definitely push question 2 reasonable "ballpark" settlement amount, but are held up by cov- pect. it's got to take a stand. it can't be neutral. it's got to be on their name is going on the line more often the numbers are going what the case is and his perception of where the plaintiffs are mon- involved. we have seen settlements delayed when a defendant mr. salpeter: well, i assumed. their position and get them to negotiate. looking at a broader view, so looking at the landscape out there in tive actions with limited value. the insurance carrier who is involved in that first decision because judge weinstein: i'd like to meet those people. how about our mr. goodstein: so we carriers are right, you're just making this mr. rudman: i think also part of the dismissals are explained by talking about approaching mediators. if hypothetically somebody to talk to me directly ­ ninety-nine percent of the time a waste. and have a session to find out what the other side's perception of may not know very much at all when the complaint hits and you number of times i have seen a really good presentation and the ists all agreed that the mediator usually gets one opportunity to they take fifty or you take twenty, but i see it based on the damage have a damage analysis done. that's fairly early and easy. then, into anti-aging issues. i'm sure it's an interest of larry's. in any offer, something that sets the arena in which they're willing to ne- ation. the question would be whether anybody at the table views hundred, that means you'll take fifty, but you'll probably take a 436 cardozo j. of conflict resolution [vol. 9:397 securities cases, what do you see happening trend-wise in the world tally dominated the discussions. i'm curious as to in your field, tions. the first was the concept of getting to a number that "puts mr. rudman: from the plaintiff's side, that's the most useful part, there is a wide divergence in the analysis of the risks in larger cases try. ways of doing that without being a message carrier that will allow they would buy into the mediator's proposal before they actually huge amount of time on those issues. goes to the mediator. if you have a mediator that you've worked status of the relationship between the defendant company, its di- gives a sense of whether it's going to be the number. opening from plaintiff's counsel here. sam or max, what are your you trust, is give the mediator a realistic view of what you think the make a demand, there's obviously a very big difference of opinion judge weinstein: let's get some quick comments ­ is the common comfortable in doing the dance. we give a lot of speeches and eyes and civil side of enron cendant. the big settlements, perhaps mil- themes that were discussed during the panel, including the timing counsel might give examples of what the tensions might be, what's involving options backdating that is going to fuel a lot more litiga- the case should come in? ferent parts of this industry to have an informal discussion on the changes these cases is the volatility and what's at stake. if it's a big mr. young: that's a different issue, i guess. in terms of just the ally i don't do that, but i do think that it's your prerogative. my mediator is when to confront this question and how deeply to get as someone who's done a lot of settlements, i can tell you that the the "evaluative" role that mr. salpeter refers to goes to the under- do that. if you do, then the mediation process can get to more case after the completion of discovery and after the judge has think? arrived at that number so that could, in turn, be conveyed to the get on common ground in advance of the mediation about what the and their counsel, kept them up to date, had a dialogue going with picture for the parties. your own client expectations, what message you want to send in to ports, and independent legal and expert analysis. trial judges will judge weinstein: to just comment on what max said, we are all, only been a handful of summary judgment proceedings. that's ing those of their own clients. level now given the law that applies. i agree with alan ­ i think rectors and officers, and their insurer is frequently one of the most the case. hopefully we don't care about insurance issues or any- mr. salpeter: as plaintiff's lawyer, we know you give us an honest to be right. there is less playing with the gray area, shall we say, in mr. goodstein: i will initiate it through defense counsel. i will ask if you start very far apart. you get to a settlement, even in some a founder and first editor-in-chief of the cardozo journal of conflict resolution. mr. melnick the best solution. if you do not work with them, you'll find your- question 4 mr. berger: after dura, every defendant coming into a mediation of blowing the entire mediation because everybody is sort of going cases, that's likely to go down. although the stock market's trad- but want more than fifty. conversely, the plaintiffs now know that most difficult kind of case to mediate early on; we have a solvent mr. young: well, i'll start by asking what the rationale is and try to or are not ever going to be sued. but the recent slowdown in fil- tions filed per year. i think that's probably around an equilibrium number in the middle of the opening number. i just wonder if for some reason culturally, and negotiations are very cultural, can apply to both the plaintiff and defense side). defendants are esting dilemma in these cases. there are enormous costs. all of support that range, then we're prepared to do that. that could re- jed d. melnick1 that conflict, do you want to take the client out of the room? do mr. alan salpeter: clearly, the number of traditional 10b-5 class difficult to break out of that orthodoxy. was talking about information because vis-a-vis the plaintiffs, you judge weinstein: yes. not as much as we don't often sit around exchange their briefs is generally a waste of time. briefs and the movement of parties in a negotiation. there are many reasons par- mediation. pany lawyers and insurance companies like the baby step ap- the defendants would pay at least thirty, but do not want to pay just decides they're not going to settle. cisions. so there are some tough decisions in both the second and not able to get a real feel sometimes as to what the real interest is. well as the reality that parties will posture, and that often it is only the going to be cut in half and we want to see it coming into at some therefore motivated to continue to negotiate (although the concept paring for the mediation in a meaningful way. if the lawyers sit choose to make a proposal. the first is when both parties suggest and their clients put on business hats that we get these cases done. attach a letter to the opposing sides. it's the same number in the window opens the dynamics in play might present a very different proach early settlement while balancing the costs of litigation favorite subject, opening offers and opening demands? i would as the panel transcript makes clear, neither the mediator nor of authority. the proposal in this situation gives the parties a way actions. judge weinstein and mr. young were joined by a panel of we often use can rely upon ­ it's like the fox guarding the chicken coop. we you've seen a dramatic increase pointing to an upsurge in filings. alt. to high cost litig. 70 (1996) (rejecting love's approach and pointing out the benefits of point. typically you find a way to work with most of the responsi- willing to kick in something and that is just a disaster. skilled mediator who understands that give-and-take, and tries to because yes, you go in ­ both sides go in with a range in mind and 2008] securities class action suits 431 between a productive and unproductive day of mediation. sources of tension between defense counsel and the insurance com- damages case, max or i will put resources into it. our clients are party takes brings the parties a little bit closer, and therefore has 2008] securities class action suits 411 the plaintiff's side, they're showing up and more involved with example, in the hypothetical above, the defendants have learned lead to a better ultimate outcome for all involved. mr. rudman: it helps you with objections to the extent you're go- whether a securities case lends itself to early settlement as well as wrong about everything. you have to sit there and say listen, just put into their thinking about their opening offer and how much is fense counsel should work together. there's nothing worse than and i have written on the subject of viewing mediations as a pro- diation even if it's not successful, definitely worth spending the triple its true position in the case. max berger joked that now that erage settlement of a securities class action costs far less than the the mediator feels that it's important for the parties to hear ver- mr. berger: well, i don't know how it evolved into this, but proach the common session. lawyers need to consider what their what they would in a vacuum consider to be a reasonable opening and ask, "what's going on here, judge, and where do we get some ante: securities class actions are suddenly going to trial, orrick practice paper, available at case is likely to go. you talk to your insurance company because mary jo barry, do you have anything that you want to add to this challenge of the mediator to help parties feel comfortable with al- sense that a settlement at a satisfactory number is at hand and is (primary and excess, or percentage contribution), is not easy. effectiveness of the mediator, and i think a lot of times, the best to $50 million, we'll put $20 million on the table and if you could complicated economic analysis early in these cases because the filter of defense counsel. the common session is the opportunity that ­ to get the peek ­ you have to take the chance. sometimes mr. markel: i agree with both things. in a typical case, it's mostly timing of mediation, the role of insurance, process related issues, opportunity to talk directly to the other side at the start of the me- private securities litigation reform act of 1995 was to curb the abusive and excessive costs of proposal or recommendation. i think everyone has to feel like ation is not necessarily a failure. without broaching the subject of evaluative versus facilitative me- 2008] securities class action suits 437 point in mediating at all. the question is whether to mediate early are fabricated, rather that they are used strategically to decrease cases can't really be settled with the carriers deciding that the case 2 see cornerstone research, securities class action settlements 2002: a year in facilitate a settlement," or, "what is the appropriate number that mr. salpeter: i thought you cut it in half twice. one of the other important process points addressed by the 4 see, e.g., william e. knepper & dan a. bailey, liability of corporate officers strain of being subjected to litigation. the plaintiff response to to their corners and just being extreme. you don't see that very carefully. the first thing a mediator should do is assiduously avoid process that deals with those issues rather than the postured posi- you've narrowed the gap and all of the best points for each side 2008] securities class action suits 407 to go to trial, it would be more difficult for plaintiffs to prove their oxley has had a huge effect, but i'm not sure if it's long term. peo- out what max is thinking is to have somebody like judge weinstein mr. berger: i come up with a number and then i'll double it be- tion has been taken. the challenge for parties in an early media-