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UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KIMBERLEE WILLIAMS,

individually, as personal

representative of the Estate

of Charles L. Williams,

deceased on behalf of said

estate, and as representative

of others similarly situated,

et al.,

Plaintiffs,

vs.

BASF CATALYSTS LLC, et al.,

Defendants.

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 Civil Action No. 

 2:11-cv-01754-JLL-JAD

 Newark, New Jersey

 Wednesday, June 7, 2017

 3:32 p.m.

TRANSCRIPT OF STATUS CONFERENCE

BEFORE THE HONORABLE JOSEPH A. DICKSON

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Plaintiffs: Cohen, Placitella & Roth, P.C.

By: CHRISTOPHER M. PLACITELLA, ESQ.

127 Maple Avenue

Red Bank, NJ 08801

Cohen, Placitella & Roth, P.C.

By: MICHAEL COREN, ESQ.

Two Commerce Square

2001 Market Street, Suite 2900

Philadelphia, PA 19103

Transcription Company: KLJ Transcription Service, LLC

P.O. Box 8627

Saddle Brook, NJ 07663

(201)703-1670 - Fax (201)703-5623

Proceedings recorded by electronic sound recording, transcript

produced by transcription service.

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APPEARANCES (Cont.):

For Defendant 

BASF Catalysts, LLC: Robinson Miller, LLC

By: JUSTIN T. QUINN, ESQ.

One Newark Center, 19th Floor

 Newark, NJ 07102

Kirkland & Ellis, LLP

By: EUGENE F. ASSAF, ESQ.

DANIEL AARON BRESS, ESQ.

PETER A. FARRELL, ESQ.

ELIZABETH DALMUT, ESQ.

655 15th Street, N.W.

Washington, D.C. 20005

For Defendant Cahill,

Gordon & Reindel: Connell Foley, LLP

By: ROBERT F. RYAN, ESQ.

85 Livingston Avenue

Roseland, NJ 07068

Williams & Connolly, LLP

By: JON K. VILLA, ESQ.

DAVID S. BLATT, ESQ.

725 Twelfth Street, N.W.

Washington, D.C. 20005

For Defendant 

Arthur A. Dornbusch, II: Marino, Tortorella & Boyle, P.C.

By: KEVIN H. MARINO, ESQ.

JOHN A. BOYLE, ESQ.

437 Southern Boulevard

Chatham, NJ 07928

For Defendant 

Thomas D. Halket: Herold Law, P.A.

By: ERIC TUNIS, ESQ.

25 Independence Boulevard

Warren, NJ 07059

For Subpoenaed Non-Party

Rothenberg Law Firm, LLP: Stief, Gross & Sagoskin, P.C.

By: ROBERT D. SOKOLOVE, ESQ.

2080 Cabot Blvd West, Suite 201

Langhorne, PA 19047

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APPEARANCES (Cont.):

For Third-Party Witness

Johnson & Johnson: McCarter & English, LLP

By: DAVID R. KOTT, ESQ.

Four Gateway Center 

100 Mulberry Street

Newark, NJ 07102

APPEARANCES (Telephonically):

For the Plaintiffs: Fox Rothschild, LLP

By: JEFFREY M. POLLOCK, ESQ.

997 Lenox Drive, Building 3

Princeton Pike Corporate Center

Lawrenceville NJ 08648-2311

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4

I N D E X

RE APPOINTMENT OF SPECIAL MASTER: PAGE

Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . 7 

RE CLASS CERTIFICATION MOTION: PAGE

Argument by Mr. Assaf.. . . . . . . . . . . . . . . . . 11, 19 

Argument by Mr. Pollock.. . . . . . . . . . . . . . . . . . 14 

Argument by Mr. Placitella. . . . . . . . . . . . . . . . . 15 

Colloquy re Letter Briefing.. . . . . . . . . . . . . . . . 19 

Argument by Mr. Assaf.. . . . . . . . . . . . . . . 20, 23, 26 

Argument by Mr. Placitella. . . . . . . . . . . . . . . 21, 25 

Argument by Mr. Pollock.. . . . . . . . . . . . . . . . . . 24 

Argument by Mr. Marino. . . . . . . . . . . . . . . . . . . 28 

Colloquy. . . . . . . . . . . . . . . . . . . . . . . . . . 30 

Argument by Mr. Sokolove. . . . . . . . . . . . . . . . . . 31 

Colloquy re Presence of The Press.. . . . . . . . . . . . . 34 

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Colloquy 5

(Conference commenced at 3:32 p.m.)

THE CLERK: Judge, we’re on the record.

THE COURT: Do we have somebody on the phone?

THE CLERK: Yes.

THE COURT: Who is that? Mr. -- who is on the phone? 

It’s one of you guys.

MR. PLACITELLA: Mr. Pollock.

MR. COREN: Jeff Pollock.

THE COURT: Mr. Pollock? Okay. Hello?

MR. POLLOCK: Good afternoon, Your Honor. Jeff

Pollock. How are you?

THE COURT: I’m good. How are you?

All right. This is the matter of Williams versus 

BASF Catalysts, LLC, et al., Docket Number 11-1754. 

May I have appearances, please? 

MR. PLACITELLA: Good morning, Your Honor. Or good

afternoon. Chris Placitella on behalf of the plaintiffs. 

THE COURT: Good afternoon. 

MR. COREN: Good afternoon, Your Honor. Mike Coren

for plaintiffs.

THE COURT: Good afternoon. 

MR. SOKOLOVE: Rob Sokolove for Allen Rothenberg Law

Firm.

THE COURT: Okay. Good afternoon. 

MR. ASSAF: Gene Assaf for defendant BASF.

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Colloquy 6

THE COURT: You know what? Let me just -- I’m sorry

for interrupting you, Mr. Assaf, but just so the record is

clear, and Mr. Pollock is joining us by telephone; correct, 

Mr. Pollock? 

MR. POLLOCK: Yes, Your Honor. Thank you.

THE COURT: All right. Thank you. 

MR. FARRELL: Good afternoon, Your Honor. Peter

Farrell for BASF. 

THE COURT: Okay. 

MR. BRESS: Good afternoon. Daniel Bress for BASF.

MR. QUINN: And good afternoon. This is Justin Quinn,

also for BASF. 

THE COURT: Okay. 

MR. VILLA: Good afternoon, Your Honor. Jon Villa 

for the Cahill defendants.

THE COURT: Okay. 

MR. MARINO: Good afternoon, Your Honor. Kevin Marino

for defendant Arthur Dornbusch.

MR. BOYLE: Good afternoon, Your Honor. John Boyle 

for defendant Arthur Dornbusch.

THE COURT: Okay. 

MR. TUNIS: Good afternoon, Your Honor. Eric Tunis

for Thomas Halket.

THE COURT: Good afternoon. 

MR. BLATT: Good afternoon, Your Honor. David Blatt

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Colloquy 7

for the Cahill defendants.

MR. RYAN: Good afternoon, Judge. Robert Ryan,

Connell Foley, Cahill defendants.

THE COURT: Okay. And nobody else wants to make an

appearance? We’ve got other people in the courtroom. I take

it that --

MS. DALMUT: Elizabeth Dalmut for BASF. 

THE COURT: Okay. 

MR. KOTT: Good afternoon, Your Honor. I am David

Kott, K-O-T-T, McCarter and English, for the third-party

witness Johnson & Johnson.

THE COURT: Okay. Anybody else?

All right. We are here today for a status conference

called by the Court. And if you’re prescient and/or 

observant, you may have noticed that Judge Brown has walked

into the courtroom. Judge Linares has determined that this

case calls for a special master and he’s made a determination

to appoint Judge Garrett Brown as the special master in this

case, so that’s what I want to talk to you about today. And I

had an order prepared and signed by Judge Linares, which we’re

going to distribute.

I am looking -- before I -- here. This my copy. I

knew I had a copy. 

I haven’t put it on the docket yet, because there are

two quick issues that I wanted to discuss. 

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Colloquy 8

(Discussion with clerk, off the record.)

THE COURT: Rule 53, Federal Rule of Civil Procedure

53, which allows for the appointment of masters in cases, at

subsection (b), requires the Court to consider any objections. 

So, I have no idea whether anyone here today or anyone on the

phone will have an objection and, at the risk of pressing the

issue, does anyone either have an objection or does anyone 

want to reserve the right after their review of the order to

pose an objection? 

MR. PLACITELLA: I would just reserve the right just

to review the order.

THE COURT: Okay. 

MR. ASSAF: No objection, Your Honor.

THE COURT: Okay. So, Mr. Placitella, it’s well

within your right to do that. What -- so then, what I’d like

to do is ask you -- because if you look at the last page, I’ve

left some blank spaces. Is five days a sufficient amount of

time?

MR. PLACITELLA: Absolutely. 

THE COURT: So, can I say June 13th?

MR. PLACITELLA: Yes. Of course.

THE COURT: If Mr. Placitella makes an objection or 

if anyone else makes an objection, then there’s -- I want -- 

we want to have any responses filed -- June 13th is a Tuesday. 

Can we have responses filed by Friday, the 16th?

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Colloquy 9

MR. ASSAF: Yes, Your Honor. 

THE COURT: Now, Judge Brown is here and he’s willing

to start work right now. So I want to make a suggestion and

then I’ll hear from everybody on this, including Judge Brown.

He cannot really start work until the -- it’s actually

approved by JAMS; correct? 

JUDGE BROWN: Well, no. The point is, I am not going

to start work until I actually have the retainer that JAMS

receives, which (indiscernible) split it up (indiscernible) et

cetera. I can preliminary talk at least (indiscernible)

subject to, you know, no objection and subject to a retainer

having been paid, et cetera, et cetera. Let’s figure out how

we’re going to proceed (indiscernible).

THE COURT: It’s a matter of language. I said start

working. Judge Brown in a better way said he can start to

preliminarily have discussions. I think that’s a good idea. 

And frankly, Mr. Placitella, maybe it will be helpful for you

making a decision whether or not you want to file an objection.

MR. PLACITELLA: I have no problem with that, Your

Honor.

MR. RYAN: Judge, Bob Ryan from Connell Foley. Just

in the spirit of full disclosure, I believe I may be wrong 

that Mr. Murphy once worked at Connell Foley, so I just wanted

everybody to be aware of that. 

THE COURT: Okay. 

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Colloquy 10

MR. MURPHY: Yes, sir, and I --

THE COURT: No, no. I haven’t identified Mr. Murphy. 

Mr. Murphy is, I think, an employee or is consulting or

contracted with JAMS. And he’s an attorney who -- well, some

of us know. He’s been here in the courthouse before and I

think he actually clerked in this courthouse for a few years. 

Or in another courthouse in this district. But he works with

Judge Brown on cases like this and I think it would be 

proposed that he work with Judge Brown. 

So, having said that, that was -- that con -- that

potential conflict was reviewed by Mr. Murphy and thank you 

for pointing it out. 

Anything else? Are there any questions in general

before I actually -- or anything that we need to talk about? 

Because, frankly, almost everything that we have been talking

about, I’ve got this list that was prepared by I think Mr.

Quinn of the pending motions and I didn’t get anybody 

objecting to that, yes, these are the actual motions. And 

this is coincident to our list of disputed matters and/or

motions. 

So, I thought -- it says these will be handed over to

Judge Brown, assuming that the order is not vacated by Judge

Linares. I didn’t want to have to waste anybody’s time 

telling you what I think about where this is going to go. 

Okay? 

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Colloquy / Assaf - Argument 11

So, but the time could be better spent having those

preliminary discussions with Judge Brown and I think my jury

room -- my conference room may be more comfortable than the

jury room, actually. 

JUDGE BROWN: Do we have space for everybody in the

conference room? (Indiscernible)

THE COURT: Well, you -- you know what? You can stay

right here. I mean, you can stay here.

Now, here’s the thing. There are people here, I

noticed, in the gallery. Is it -- are they all clients and/or

connected with this case?

UNIDENTIFIED MALE: I’m not. I’m a reporter.

THE COURT: Okay. Well, then I’ll leave it to the

parties as to whether they want you to sit in on a private

conversation. Right now, we’re on the record.

Yes, Mr. Assaf? 

MR. ASSAF: For the record, Gene Assaf on behalf of

BASF. 

Yes, Your Honor, I understand that there is a chart 

of the various discovery motions and, upon my quick review of

Judge Linares’s order, I see that they will be referred now to

Judge Brown. I think the -- including the sanctions motion,

which I also see noted at the end that he has the authority

over the proposed sanctions motion.

In terms of outstanding issues though, Your Honor, I

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Assaf - Argument 12

do think there’s a non-discovery issue that’s still

theoretically in front of you that you said was not ripe yet,

but you wanted to hear again. We raised it in October. The

issue of early class motion. We raised it again in January of

2017 and last week Mr. Placitella now filed a piece in which 

he shifts again, in terms of his class theory. Now he says it

is -- his words, not mine -- present intention to file a class

motion that is an issues-based class under Rule 23(c)(4). 

Which, Your Honor, if that’s going to happen, again, 

I think it then makes your inclination to have an early class

motion all the more important, and now that we’re having

discovery issues with Judge Brown, because 23(c)(4) cannot be

used to circumvent (b)(3) and, in particular, predominance. 

And, Your Honor, the Gates versus Rohm and Haas case from the

Third Circuit, 655 F.3d 255, makes it very clear. 

So, if there is going to be -- we felt as though the

class cert issue has moved along. You’ll remember the very

first hearing, Your Honor. You asked Mr. Placitella: Are 

people who never filed cases in your class? He said: I don’t

know I have to think about that. And we’re now years into

discovery and we still don’t have pen to paper on that issue.

We have a putative class of people from Mississippi,

thousands of putative cases, there’s no class rep from

Mississippi. There are no lawyers from Mississippi regarding

the alleged representations. There are thousands of people in

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Assaf - Argument 13

his putative class, I think, who have asbestosis. There is no

class rep with asbestosis.

So, if he’s going to have a class, again, Your Honor,

I think now, compared to October of 2016, is the time for him

to start putting pen to paper as to who is in the class and

what’s the basis of his class, because, if it is a (c)(4)

class, then we’re going to be back here in very short order 

and we will show to you conclusively that that’s not a basis

for class certification, which will obviously impact the

discovery issues in this case.

So, I would renew our request, Your Honor, that you

ask Mr. Placitella to file a class cert motion identifying his

basis for class cert and the people who are purportedly in 

that class, whether they’re from Mississippi, when they were

injured, how they were injured, what their injuries are. So, 

I would raise that issue. I think that’s probably outside

Judge Brown’s order, but I would raise with you, since we’re

here.

THE COURT: Okay. 

MR. POLLOCK: And, Judge, this is Jeff Pollock. Can 

I jump in for a second?

THE COURT: Mr. Placitella just got up. Mr.

Placitella, can Mr. Pollock --

MR. POLLOCK: Go ahead, Chris.

MR. PLACITELLA: I will defer to Mr. Pollock, since 

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Pollock - Argument 14

he is closer to you.

MR. POLLOCK: Chris, go ahead.

THE COURT: No, he wants you to go first, because

you’re closer to me.

MR. POLLOCK: Okay. I just have two questions,

procedurally. And obviously, you know, Garrett -- Judge Brown,

being the former chief judge, obviously has the skills and

ability to do exactly what you want him to do. 

Procedurally, with the -- since we have one core

question up front, as I see it, which is what is and is not

discoverable. Obviously, Gene Assaf and company on one side

and Chris and I on the other, disagree on that fundamental

issue, what is and is not discoverable and I think that arises

out of what is and is not at issue. As I see it, and you may

disagree with me, that’s really a call that has to be made I

think by the Court and then, at that point, Judge Brown can

direct us and make sure we all behave. 

So, I’m just wondering how the -- how do you see this

working, procedurally? Because the first -- I think the first

issue is: are -- is BASF entitled to discovery of the

underlying cases? Obviously, BASF believes strongly they are,

we believe strongly they are not. So, I am just trying to get

a sense of how you see this working out procedurally.

THE COURT: Procedurally -- and I think the order

implements this -- Judge Linares and I still -- and I talked

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Placitella - Argument 15

about this to Judge Linares and I both anticipated that Judge

Brown would address that issue. I think Judge Brown is

prepared to talk about which issues should be addressed first

and the order of those issues once we break here.

But to answer your question, that -- I am well aware

of that issue and procedurally and process wise, that was 

going to part of Judge Brown’s duties as the special master.

MR. POLLOCK: Thank you, Your Honor. 

MR. PLACITELLA: Thank you, Your Honor. 

As I said previously, class certification is

premature. Not a single deposition of any defendant has been

taken. There is outstanding discovery related to Johnson &

Johnson that would bear upon that. We believe that there are

documents being wrongfully withheld under claim of privilege

that would directly bear on the issue of class certification. 

We have no problem, once we get through some of that,

addressing the issue. 

I know Mr. Assaf wants to teach me how to practice 

law in whatever order he thinks I should do things. But,

respectfully, we are the -- it’s our case and we have a right

to get the discovery, and that’s why Judge Linares and Your

Honor have asked Judge Brown to step in, and I think at some

point a few months down the road, Judge Brown can give you

advice and Judge Linares advice and counsel as to whether he

thinks, based on what he knows, that -- you know, whether it’s

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Placitella - Argument 16

ripe at that point at time.

I would raise the following: To the extent that 

Judge Brown would be involved in this case -- I’ve raise this

before and I’ll raise it again -- because the issues so 

overlap with discovery going on in the state court, that there

will be coordination between whatever Judge Brown does and

whatever is going on in the state court. There are identical

issues, identical depositions noticed, identical requests for

admissions. 

At the very least, I believe that Judge Brown should

have a conversation with the Superior Court Middlesex County. 

There is a long history here in the state of New Jersey of the

Middlesex County Superior Court that handles asbestos cases

having coordinated proceedings and conversations with the 

Court here in this very courthouse, going all the way back to

Judge Ackerman and then Judge Cowen when Judge Keefe was

involved and then Judge Hamlin and it’s worked very well 

before and, frankly, I think it will save everybody a lot of

time and a lot of money. 

Thank you.

THE COURT: All right. So, there are two issues you

raised. One is the response to the timing of the class

certification motion.

MR. PLACITELLA: Correct. 

THE COURT: And essentially your position is it’s not

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Placitella - Argument 17

time, because discovery has not given you enough.

MR. PLACITELLA: Correct. It’s not ripe.

THE COURT: It’s not ripe. Okay. And the second

issue is the coordination issue with the state court with the

parallel issues.

MR. PLACITELLA: Well, the state court in the Sampson

case and other -- and -- and the Ross case, for example, the

allegations are very similar. Fraudulent concealment,

spoliation. There has been -- it’s no secret there has been 

an opinion issued by Justice Stein that’s being considered by

the superior court. That took --

THE COURT: That’s still under consideration?

MR. PLACITELLA: It’s under consideration. We are

hopeful we will get some determination soon, because the

superior court has added a second asbestos judge, which has

allowed Judge Viscomi to get rid of some of the backlog she 

had on motions, because of just the crushing burden of pending

motions. But over the last number of weeks, you know, dozens

and dozens of backlogged motions have been handled, because

there is now more judicial resources. So, we’re hopeful we’re

going to get a decision one way or the other. That will

impact, obviously, I think, on what is happening here and I

think Judge Brown should know.

I will repeat that Judge Viscomi has said that 

Justice Stein’s opinion could be shared with this Court. This

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Placitella - Argument 18

Court has taken a position, understandably, that you weren’t

ready to look at that at this time, because that opinion,

although addressed, had been in possession of Cahill and BASF,

has not been shared with the counsel for Arthur Dornbusch or

Mr. Halket, and it was your position -- and I understand it 

and I’m not rearguing it -- that until such time as that

opinion would be available to Mr. Marino, it would -- it 

should not be viewed here.

But we can’t do this in a vacuum. Years have been

spent on the very issues that are going to be confronted here

and it, to me, makes all the sense in the world, at a minimum,

for Judge Brown and/or yourself to have a conversation with 

the superior court and find out where things stand and how and

if those efforts can be coordinated so as not to, you know,

expend judicial resources unnecessary -- unnecessarily.

THE COURT: You know, I think it would be -- and I

will hear from you in a minute, Mr. Assaf. But I think it

would be helpful if you could more finely tune that in a 

letter to the Court as to what issues should we discuss. I

mean, there are -- you know, --

MR. PLACITELLA: I’ll be happy to do that.

THE COURT: And then -- and Mr. Assaf could, of

course, respond. Unless you think we should discuss this case

with the superior court, as well. 

Mr. Assaf, do you agree or do you --

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Assaf - Argument / Colloquy 19

MR. ASSAF: Your Honor, I think there -- for example,

if there is going to be a deposition on what I had proposed

before on where the documents have been found, I think that’s

worth a discussion with Judge Brown in terms of saying, okay,

is there a duplication of effort here and can we get some

efficiencies out of it? 

But what I don’t think should happen is what’s

happening now, was when we were here last time, Mr. Placitella

had discovery come to a screeching halt and the very next day

initiated waves of discovery in the state court. And so I

don’t think it should be used tactically and I think we should

have a discussion with Judge Brown about how we should get 

some efficiency out of the process. And especially on this

document issue.

THE COURT: Well, but I want to stick with one thing.

MR. ASSAF: Sure.

THE COURT: I think Mr. Placitella -- and I’m not

going to speak for you, Mr. Placitella. Correct me if I am 

not getting what you are talking about. But there are a lot 

of things going on in the state court.

MR. PLACITELLA: Correct. 

THE COURT: And there are a lot of things going on

here or about to go on here, --

MR. PLACITELLA: Correct. 

THE COURT: -- depending on how you look at it.

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Colloquy / Assaf - Argument 20

MR. PLACITELLA: Correct. 

THE COURT: You are talking about the federal court

and Judge Brown, assuming he’s appointed -- excuse me --

coordinating with the state court judges to make sure that we

don’t render inconsistent rulings or make duplicate work. I

mean, it’s --

MR. PLACITELLA: Correct. 

THE COURT: I’d like for you to fine tune that in a

letter.

MR. PLACITELLA: Your Honor, I’m happy to flesh it

 out in a letter, Your Honor. 

THE COURT: Okay. 

MR. PLACITELLA: It sounds like Mr. Assaf is not

totally --

THE COURT: Well, that’s why I’d like to get --

MR. PLACITELLA: -- against what I am saying, so -- 

THE COURT: I’d like to -- so, it’s always easier for

me to see it --

MR. PLACITELLA: Okay. 

THE COURT: -- in writing, so it can be addressed.

MR. PLACITELLA: I’m happy to do that.

THE COURT: Okay. And then Mr. Assaf you can -- you

can respond.

MR. ASSAF: Yeah. And to be clear, Your Honor, what 

-- yes. I’d like to see it in writing, but let’s talk about

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Placitella - Argument 21

something that’s I think pretty easy. If there is going to be

a witness deposed, whether they should be cross-noticed in the

cases, so they don’t have to sit for depositions seriatim, --

THE COURT: Right.

MR. ASSAF: -- that’s something we should discuss and

I would hope we, if we aren’t able to agree on it, that Judge

Brown would make us see the good sense in doing that.

THE COURT: Well, I think -- I am going to guess Mr.

Placitella would agree that we take one dep --

MR. PLACITELLA: We’re on the same page.

THE COURT: -- one deposition.

MR. PLACITELLA: We’re on the same page. So, what

happened is --

THE COURT: It may be a 40-day deposition, but it 

will be one deposition. 

MR. PLACITELLA: Right. So, for example -- for

example, just to give -- to put some meat on those bones, we

asked for -- they said -- they walked in here and said we

didn’t destroy any documents, we want to bring a motion to

prove it. We said, okay, Judge, we would like a deposition on

that issue. And because when we took the deposition in the

state court, their corporate representative admitted that

documents were missing. 

Mr. Assaf stood up before Your Honor and said, well,

Judge, that was an old deposition that really -- you know, 

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Assaf - Argument 22

it’s stale. So, I went back to the state court and issued the

same notice and said, well, they told Judge Dickson it was

stale, so now I need to go back and find out on the record

exactly what they say they found since I took the deposition. 

They then objected to that happening in the state

court. The special master in the state court, whom I am 

hoping Judge Brown will get to know, recommended that he

deposition go forward. That was then appealed by BASF. BASF 

-- and then the preliminary decision from Judge Viscomi was,

no, the deposition should go forward. BASF asked for oral

argument. They came into court and they said, well, maybe we

will put up somebody for a deposition, but we have the meet 

and confer on the scope of that deposition, which meet and

confer is scheduled for tomorrow. 

That issue is a complete overlap and there may be

issues, frankly, that we would put before Judge Brown, 

assuming the order is permissible, on privileged documents 

that may bear on some of these issues, but we don’t have to go

over that now. I am just saying that we’re at a point where

there is a lot of work to do, but there is no reason to redo

two years of work done by Justice Stein.

THE COURT: Okay. I understand. 

All right. So, I’m going to get a letter and, Mr.

Assaf, you’ll respond.

MR. ASSAF: Correct, Your Honor. 

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Assaf - Argument 23

And I want to come back in terms of we will do a

letter, we’ll respond. I am sure the individual defendants

will have some process issues, since they weren’t part of the

process and aren’t part of the cases, and they could weigh in

on that. 

But I would like to come back to this class cert

motion, which, again, I --

THE COURT: How are we going to get there, Mr. Assaf? 

MR. ASSAF: I’ll tell you how, Your Honor. I think,

we -- all I want is a motion -- which can be amended, okay? 

For good cause, if he finds other discoverable issues. But 

I’d like to know what I’m shooting at to begin with. Okay? 

What is the class? Who is in the class? Are they Ohio 

people? Are they Mississippi people? Are they asbestosis

victims? What does it look like today, based on what he 

knows? 

On April 4, 2015, Mr. Placitella stood up in front of

Your Honor and said I would like a trial date in three days,

I’ve been living this case, I know this case. And now he’s

telling you today he really doesn’t understand what his class

even looks like yet. I don’t think that’s the case and that’s

why he keeps shifting in terms -- all I want him to do is put

together an eight to ten piece -- page what rule he’s going to

move under, how he thinks it’s going to look, and if he finds

facts later on that changes his mind, then he comes in and

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Assaf / Pollock - Argument 24

says, Your Honor, I didn’t know these facts at the time. 

But at least let me know whether people from

Mississippi are in it. And I’ll tell you why it matters. So,

if people from Mississippi are in this case, I want to issue

subpoenas to the companies that settled with the Mississippi

plaintiffs and see what the Mississippi plaintiffs said. Or

subpoena the law firms. Or at least find out what their

injuries were. If they are not in the case, it changes the

case dramatically.

So, that’s why I’m saying, Your Honor, he reserves 

all of his rights to amend it, but let him tell us what rules

he’s going to move under and what the basis of the rules are.

MR. POLLOCK: Your Honor, may I respond briefly to

that?

THE COURT: Sure.

MR. POLLOCK: What Mr. Assaf just said is precisely

the problem I identified four minutes ago. His core premise 

is the underlying cases are directly relevant to the cause of

action here. Our core position is the Third Circuit said 

we’re not retrying those cases. So, what he is trying to do,

as he just said 30 seconds ago, is to reopen -- he wants to

subpoena those companies, those plaintiffs, those people. 

The question as we perceive it -- and, obviously,

Judge Brown will be the one who will be the arbiter of this

initially and then it may go on to others -- is the question 

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Pollock / Placitella - Argument 25

of whether it is BASF’s actions. Did they lie steal, cheat,

hide information? The underlying plaintiffs’ cases, as the

second-to-the-last paragraph of the Third Circuit’s decision

clearly articulates, and we all read the language, said that’s

not relevant, but that’s exactly what he’s trying to make

relevant. 

So, that’s where I think we need -- that’s why I was 

-- I’m concerned about that starting point. We don’t 

(indiscernible), we’re not going to agree upon it today, but 

we have to have an answer to that question, because that

dictates everything else.

THE COURT: Okay. I understand your point. 

Mr. Placitella? 

MR. POLLOCK: Thank you, Judge. 

MR. PLACITELLA: Yes, Your Honor. 

MR. POLLOCK: Thank you.

THE COURT: Mm-hmm. 

MR. PLACITELLA: The class is framed in the 

complaint. The Third Circuit said we can proceed. We don’t

have any discovery by way of depositions. There are documents

that we believe go directly to the issue that are being

withheld. It’s premature.

I understand that Mr. Assaf would like to instruct me

about how to represent my clients, but with all due respect,

despite the lessons trying to be taught, we have a game plan

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Assaf - Argument 26

that we would like to execute. Thank you.

THE COURT: I don’t view Mr. Assaf’s arguments as

that, Mr. -- with all due respect, Mr. Placitella. I view his

arguments as trying to understand really the breadth of what

this case is going to be all about. But I also understand 

what Mr. Pollock said and I understand what you’re saying.

What I want to do is see where this shakes out with

Judge Brown. He’s going to have a discussion with all of you

in about two minutes. And I’m going to see how that shakes 

out and where that comes from. Judge Brown will then talk to

me and/or Judge Linares and -- and because I’m trying to think

process on this. I mean, you’re essentially asking me to 

order a date by which the class motion -- the class mot --

yeah, the motion for class certification has to be filed. 

MR. ASSAF: Slightly different, Your Honor. I think

it would be the first -- 

THE COURT: You’d take less than a motion? You’d 

take just a description?

MR. ASSAF: Yeah, I’d take a description --

THE COURT: So, you want me to order a date by which

they describe what the class is?

MR. ASSAF: Correct, Your Honor. And with good cause

they could amend or file a motion later on for that. And as

you know, Your Honor, the trend in district courts is actually

for local rules requiring it within 30 days of filing the

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Assaf - Argument 27

complaint. So, I don’t think there’s any prejudice here. He

could tell us what he thinks. 

And again, Your Honor, I urge you to look at the very

last brief Mr. Placitella filed on the sanctions issue where 

he now says that the class --

THE COURT: Which one would that be? The very last?

MR. ASSAF: It -- it’s the class --

THE COURT: I mean, it seems there’s one every day. 

The one that came today or the one that came yesterday?

MR. ASSAF: I think it’s the one that came -- it’s 

the one that came Monday. But it’s the classic -- it’s where

he says I now am -- I’m now envisioning my present intention 

is now to do a class-based issue. Which means what he wants 

to do is say I am just going to say misstatements, but not

reliance and not damages. And that’s not allowed under Third

Circuit precedent. And so, if he wants to do that, we should

know sooner rather than later.

THE COURT: Well, why don’t -- maybe it will be

helpful not to keep piling on letters and letters, but maybe --

have you responded to that letter?

MR. ASSAF: Yes.

THE COURT: Okay. Then I’ll look at that letter and

your response.

MR. ASSAF: Okay. 

THE COURT: Okay. 

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Marino - Argument 28

MR. ASSAF: Great.

THE COURT: Mr. Marino, did you have something?

MR. MARINO: Just very briefly, Your Honor. I think

the Court is aware we, on behalf of Mr. Dornbusch, had no

involvement in the state court actions. So, it isn’t just a

matter of seeing the opinion. Obviously, this whole notion of

coordination is problematic. I think what probably makes most

sense is, when Mr. Placitella files his papers and Mr. Assaf 

is going to respond, we will respond as well and I assume that

Mr. Tunis, on behalf of Mr. Halket, will as well, if that’s 

all right with the Court.

THE COURT: And maybe -- 

MR. TUNIS: That’s correct, Your Honor. 

THE COURT: I don’t want to go too far out on a limb

here, but it seems to me that if there’s going to be

coordination, there has to be coordination with all of the

parties.

MR. ASSAF: Which is a --

MR. MARINO: You would think, Your Honor, and --

MR. ASSAF: Which is a -- which is a problem, Your

Honor. 

THE COURT: Well, it’s a --

MR. MARINO: It’s a major -- it’s a major problem for

us.

THE COURT: It’s a problem now, but maybe the problem

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Marino - Argument 29

-- if -- if we -- if this Court decides that there should be

coordination, then the state court also has to decide there

should be coordination.

MR. MARINO: Well, our concern, Your Honor, --

THE COURT: Or there’s no coordination. And if the

state court decides that there’s going to be coordination, 

they have to understand that there are parties here that need

to be coordinated with.

MR. MARINO: Well, you know what I envision, Your

Honor, is Mr. Placitella being unable to get certain discovery

in this Court, where we are all present, and then repairing to

the state court, where some of us are not present.

THE COURT: Well, yeah, but he’s the one who brings 

up the coordination problem. He -- so, I think he’s trying to

solve that problem --

MR. MARINO: No, I’m --

THE COURT: -- before it becomes a problem.

MR. MARINO: Oh, I -- well, --

THE COURT: I understand the problem, too.

MR. MARINO: -- to the extent it hasn’t become a

problem already, but -- 

THE COURT: I agree.

MR. MARINO: -- but I would like the opportunity, 

with the Court’s permission --

THE COURT: You -- well, absolutely. 

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Colloquy 30

MR. MARINO: -- to respond.

THE COURT: The bottom line is, you wanted to respond

to it. Absolutely.

MR. MARINO: All right. Thank you, sir.

THE COURT: Of course. All right? 

MR. ASSAF: I have one more non-discovery issue.

MR. PLACITELLA: I thought you only had one.

THE COURT: Yeah. What, are you Columbo? I’m sorry. 

Go ahead, Mr. Assaf. I apologize for --

MR. ASSAF: That’s okay.

THE COURT: That was a tongue-in-cheek joke.

MR. ASSAF: No, no, that’s -- eh, medium --

THE COURT: But I want the transcript to reflect --

MR. ASSAF: It was a medium joke.

THE COURT: -- that I was teasing. Five years from

now, when this case is still going on and somebody says that I

said something nasty to you.

MR. ASSAF: Maybe by that time we’ll have a class 

cert motion.

THE COURT: Okay. 

MR. ASSAF: So -- and, Your Honor, on this issue I am

wondering if you and Mr. Placitella and I may have a sidebar,

because I want to know whether I should raise it here in open

court. It’s a sensitive issue and I just -- I would prefer to

raise it just with Your Honor and Mr. Placitella first and as

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Colloquy / Sokolove - Argument 31

opposed to raising it on the record, if that’s okay with Mr.

Placitella. 

THE COURT: Okay. 

UNIDENTIFIED MALE: Can we assume that doesn’t --

MR. ASSAF: Correct. 

UNIDENTIFIED MALE: -- have anything to do with --

MR. ASSAF: Correct. 

THE COURT: Does anybody object to Mr. Assaf and Mr.

Placitella having an off-the-record sidebar with me?

MR. SOKOLOVE: It’s kind of hard to know if you don’t

know what the subject matter is.

THE COURT: Yes. Mr. Assaf, that’s --

MR. ASSAF: It doesn’t have anything to do with other

counsel. It only has to do with Mr. Placitella and BASF. 

THE COURT: Okay. Let’s go off the record. 

(Off record from 4:05:57 to 4:06:02 p.m.)

THE COURT: Hold on.

THE CLERK: Just one second. 

MR. SOKOLOVE: I’d like to just -- I’m sorry. 

THE CLERK: Now we’re on.

MR. SOKOLOVE: While we’re on the record, can I -- 

can I just raise one issue? Right? I represent the kind of

the 1,800-client elephant not in the room -- or may be in the

room, I’m not sure. We represent, you know, the Rothenberg

files.

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Sokolove - Argument 32

THE COURT: Right.

MR. SOKOLOVE: We’re kind of -- we’re in the cross --

you know, we’re in the crossfire between all this. We may be

in this case, we may not be. Of course, we can’t find our

files yet. And I know Your Honor made a ruling that, frankly,

we were a little confused by. 

I just want to kind of raise for the record that 

right now it’s the Rothenberg third-party kind of position 

that we’re okay to be doing nothing right now. Because as 

long as the underlying discovery dispute as to what is

discoverable at this point is still alive, we shouldn’t have 

to be going and trying to find the errors, probable errors, of

1,800 people who were middle-aged men 25 years ago and not try

to find their errors, to see if we can pull the files, to see

if we represent them. And that’s kind of the position we’re 

in right now.

So, I just want to make it clear that while this

discussion is taking place, there are these third-party --

perhaps parties -- involved in this that are sitting waiting 

to determine what we should do. And I just want that on the

record. I -- I -- because we’re kind of parties, but we’re 

not yet, but we can’t proceed with the discovery as long as

these discovery disputes are taking place and I just want that

on the record and I -- you know, I want both judges to

understand we’re kind of caught in that middle right now.

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Sokolove - Argument 33

THE COURT: Okay. 

MR. SOKOLOVE: Thank you, Your Honor. 

THE COURT: What -- I thought that what we were doing

is putting you on hold.

MR. PLACITELLA: That was my understanding.

MR. SOKOLOVE: Well, that -- that was the

understanding, although we did move to quash the subpoena and

it -- and --

THE COURT: Did I deny it without prejudice or did I

terminate it?

MR. SOKOLOVE: Well, you denied the motion without

prejudice.

THE COURT: Without prejudice, because it was --

because I am trying to -- that was docket control. I’m trying

to get it off the docket. That was all.

MR. SOKOLOVE: Okay. 

THE COURT: I --

MR. SOKOLOVE: That’s the way we read it and, quite

frankly, we assumed that since we didn’t get a phone call the

very next day --

THE COURT: I thought I made that clear.

MR. ASSAF: I think you did, Your Honor.

MR. SOKOLOVE: Okay. Well, then --

THE COURT: Okay. 

MR. SOKOLOVE: -- then we’re all good for now.

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Colloquy 34

THE COURT: All right. 

MR. SOKOLOVE: For now. Thank you, Your Honor. 

THE COURT: Okay. Anything else?

All right. We’re going to break now and we’ll have --

and I want everybody to sit down with Judge Brown. 

With all due respect to the press, somebody should

decide whether or no they want the press in the room while

you’re having an off-the-record conversation. Okay? I don’t --

MR. ASSAF: I think --

THE COURT: I don’t think I’m asked to take a position

on that.

MR. ASSAF: Your Honor, my practice has been, as the

press, for example, this would be akin to Judge Brown

supervising a deposition and the press doesn’t have normal

access to that. And these are discovery issues, some of which

will be covered by protective orders already entered in the

case. So, with all due respect, huge fan of the First

Amendment and I’m sure the reporter back there, but I don’t

think it would be appropriate, in terms of full and frank

discussion of confidential information and discovery issues.

THE COURT: Okay. Let’s go off the record.

(Off record from 4:09:18 to 4:09:18 p.m.)

THE COURT: -- to Mr. Placitella? 

MR. PLACITELLA: I defer to Your Honor. 

THE COURT: Okay. Thanks. Off the record.

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35

(Conference adjourned at 4:09 p.m.)

* * * * * * * * * *

C E R T I F I C A T I O N

I, TERRY L. DeMARCO, court-approved transcriber,

certify that the foregoing is a correct transcript from the

electronic sound recording of the proceedings in the aboveentitled matter recorded on June 7, 2017 from 3:32:30 p.m. to

4:09:26 p.m.

 06/12/17 S / Terry L. DeMarco 

 Date Terry L. DeMarco, AD/T 566

KLJ Transcription Service 

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