The Sedona Conference of 2001:

Recently I had the honor to act as Co-Chair of an historic gathering of distinguished judges and lawyers assembled for the express purpose of reviewing and considering procedures to improve the handling of complex litigation in the State and Federal Courts.

The gathering was extraordinary because it included leading representatives of the appointed bodies who are revising the Federal Judicial Manual on Complex Litigation and devising rules to coordinate mass tort cases in State and Federal Courts. The occasion was the Third Annual Sedona Conference on Complex Litigation which was held in Santa†Fe, New Mexico on April 19-20, 2001. The 15 faculty members included four sitting federal judges and three former federal judges, as well as the chairman of the ABA Litigation Section and the American College of Trial Lawyers Complex Litigation Committee. Registration was strictly limited so that there was almost one faculty member for every two participants. This was designed to promote dialogue and discussion rather than faculty lecturing. The participants themselves included a sitting federal judge, representatives from the Federal Judicial Center and experienced and well-known trial practitioners.

My principal responsibilities prior to the conference, were to work with my Co-chair, Federal Judge Thomas Martin of Wichita, Kansas, in planning the agenda and assembling the faculty.

Part II - Mass Torts & State/Federal Coordination

The second major broad area under discussion at the Sedona Conference was the problems related to mass tort litigation particularly where actions arising from same accident or situation are brought in State and Federal Courts scattered throughout the county. This raises obvious problems of duplication form shopping, etc. This is also effected by the tension between the class action bar and personal injury lawyers bringing individual cases for particular clients who seek the greatest recovery for the individual client and do not want to be interfered with or displayed by a class action. Judge Racoff kicked off the discussion of mass tort with a report to the group in his capacity as Chair of the Subcommittee on Mass Torts of the United States Judicial Conference Bankruptcy Committee. He pointed out that a forthcoming (June, 2000) Penn Law Review Symposium on mass tort litigation includes an expression of widespread pessimism that a judicial solution to mass tort problems can be devised. One solution, which he wished to discuss, was bankruptcy organization under Chapter†11 of the Bankruptcy Code. Judge Racoff pointed out that actual insolvency is not needed simple a reasonable threat where a company faces potential insolvency justifies filing of the Chapter†11 Petition.

Judge Racoff pointed out the following advantages to handling of the mass tort situation in the bankruptcy Chapter 11 context:

1. It provides for nationwide jurisdiction and an automatic stay of related litigation in all State and Federal Courts.

2. It centralizes all the cases in one court...