An article on Layn Phillips:
Article originally published here: https://www.law360.com/pulse/articles/1806230
By Jack Karp
Law360 (February 26, 2024, 4:31 PM EST) — The former federal judge who will oversee negotiations in an investor class action against Johnson & Johnson in New Jersey over its cancer-linked talcum powder is a highly experienced and outstanding mediator to whom both plaintiffs and defendants turn in high-profile and complicated cases, attorneys say.
Former U.S. District Judge Layn R. Phillips was tapped Friday to mediate the investors’ class suit accusing J&J of artificially inflating its stock price by failing to disclose the cancer risks associated with its talcum powder products. A New Jersey federal judge certified the investor class in December.
Phillips is the “go-to mediator” for investors and companies in most high-profile security class actions, Cohen Milstein Sellers & Toll PLLC partner Laura H. Posner, who has been involved in several cases mediated by Phillips, told Law360 on Friday.
“It’s not often that plaintiffs and defendants agree on anything, but with Judge Phillips, I think he is largely considered and widely respected as — if not the — one of the top mediators in the space, because he’s very effective,” Posner said.
“What makes him effective and why both plaintiffs and defendants seek him out on a regular basis is that he’s a very honest broker, and both sides feel as though they get a fair shake with him,” she added.
In addition to his experience negotiating settlements in securities class actions, Phillips is known for taking on big antitrust and mass tort cases.
“I don’t think you’re going to find any better mediator in this country. That’s why he gets a lot of the biggest cases, the highest-profile cases, because he gets results,” said Michael G. Ermer, partner emeritus at Irell & Manella LLP, where Phillips spent more than two decades before starting his own alternative dispute resolution firm, Phillips ADR Enterprises.
Phillips has handled mediation in myriad high-stakes cases that have collectively led to billions of dollars in settlements, according to the firm.
Those deals include a $760 million settlement between the NFL and thousands of former players who were part of multidistrict litigation against the league over its handling of concussions. The agreement, inked in 2013, included compensation for players’ cognitive injuries, the funding of medical exams for retirees and a research program into the effects of concussions.
“Layn was indispensable to resolving the NFL concussion litigation. He was trusted by both sides and knows exactly where to push and where to let up,” said Seeger Weiss LLP founding partner Christopher A. Seeger, who represented former football players in that case.
Seeger added that Phillips is “one of the very best, top-of-his-game, top-level mediators. He’s always on the very short list of mediators called upon to resolve often protracted and very complex cases.”
“He is that rare person who seems to relish getting in the middle of difficult cases with high stakes and finding palatable solutions to both sides,” echoed Kellogg Hansen Todd Figel & Frederick PLLC partner David C. Frederick, who also represented retired players in the concussion litigation.
More recently, Phillips helped ink a deal between Google and a certified class of potentially tens of millions of consumers who alleged the tech giant surreptitiously tracks Chrome users running the browser’s incognito mode.
He oversaw settlement discussions that led in May to an agreement between Wells Fargo and a class of investors that saw the bank doling out $1 billion for allegedly misrepresenting its progress in overhauling its internal controls and compliance.
The all-cash Wells Fargo deal ranks among the largest securities settlements of all time.
“He’s very effective at figuring out the substantive strengths and weaknesses of a case and pushing who he has to push in order to get the parties where they need to go,” said Posner, who represented the class of investors in that case.
Phillips also guided negotiations that led to Apple’s $500 million deal to resolve multidistrict litigation accusing the company of releasing software updates that slowed down the performance of iPhones.
“Judge Phillips is unique in his ability to distill the most complicated cases into two or three key issues to focus on at mediation. Like any good trial attorney, he was able to simplify the issues and focus the parties on the strengths and weaknesses of their case, before transitioning to the numbers,” said Cotchett Pitre & McCarthy LLP partner Mark C. Molumphy, who represented consumers in the case against Apple.
Phillips also helped steer what at the time was hailed as the largest-ever data breach settlement, leading health insurer Anthem Inc. and consumers to a $115 million deal that ended litigation over Anthem’s massive 2015 data breach.
Phillips took on mediation in several cases in the wake of the 2008 mortgage collapse as well.
In 2012, he helped guide a $295 million settlement in multidistrict litigation over Bear Stearns Cos. Inc.’s alleged misrepresentations about its exposure to the subprime housing market before its collapse. And in 2014, he inked a $960 million deal to settle a consolidated securities class action against American International Group Inc. alleging the insurer misrepresented the value of credit default swaps.
Phillips also helped mediate Petrobras’ U.S. securities litigation, cases involving sexual abuse at Michigan State University, investor litigation involving Activision Blizzard, and consolidated wage and hour cases involving Walmart, according to his firm bio.
And he served as the NBA systems arbitrator, his bio added.
Before founding Phillips ADR Enterprises, Phillips was a U.S. district judge for four years in the Western District of Oklahoma, according to his federal judiciary bio. Nominated to that post by President Ronald Reagan in 1987, he was one of the youngest federal judges in the country at age 35.
That judicial experience means his recommendations have a lot more weight with the courts, according to Cohen Milstein’s Posner.
“You don’t necessarily get that level of respect or trust from someone who’s not a former federal judge. And so I think that’s also very effective in terms of getting settlements approved, which is obviously a really important part of the process,” Posner said.
Phillips stepped down from the bench in 1991, and joined Irell’s Newport Beach, California, office, where he spent more than two decades.
While at Irell, he handled mainly high-stakes commercial litigation disputes, such as contract, environmental, insurance and intellectual property cases, according to Ermer, his former colleague at the firm.
His background as a federal judge and former U.S. attorney also allowed Phillips to excel as a white collar criminal lawyer, Ermer said.
In fact, Phillips spent much of his career as a federal prosecutor before joining the bench and then going into private practice.
He served three years as U.S. attorney for the Northern District of Oklahoma in addition to working as an assistant U.S. attorney in the Central District of California and a special assistant U.S. attorney in the Southern District of Florida, according to his federal judiciary bio.
He was also a trial attorney in the Federal Trade Commission’s Bureau of Competition.
“He was a really, really great trial lawyer,” Ermer said. “And he could handle pretty much any kind of case.”
In addition to being a litigator, Phillips took on alternative dispute resolution while at Irell, according to Ermer, who assisted him in several mediations and called him “just outstanding” as a mediator.
“He had just the right temperament for being a good mediator. He had the ability to thoroughly understand the parties’ positions, relate to them, know where they’re coming from,” Ermer said. “But he also had the ability to try to bring parties together by perhaps adjusting their realistic expectations of what their cases were worth.”
“He got results, he settled cases,” Ermer added.
And Phillips was a terrific colleague, according to Ermer, who considers Phillips a good friend.
“As a colleague, he was generous, he was funny, supportive, a superb partner,” Ermer said.
Phillips taught as an adjunct professor at the University of Tulsa, where he earned both his law degree and his bachelor’s degree. He was also a successful tennis player at the school and was inducted into its Athletic Hall of Fame.
“He’s one of the most impressive people I’ve ever met in my life,” Ermer said.
Phillips declined to comment for this story.
–Additional reporting by Katryna Perera, Jon Hill, Jessica Corso, Cara Bayles, Kat Greene and Dorothy Atkins. Editing by Kelly Duncan.
