You may be shocked to learn that plaintiffs’ counsel in class actions and mass tort cases have been known to copy one another’s complaints. Here at imPaneled, we understand that there are valid reasons for that, and would never endorse denying said copycats their fair share of the time in subsequently consolidated proceedings.
But we draw a line when copycats pursue hostile takeovers of lead counsel positions, and have long bemoaned the Panel’s and the courts’ failure to consider that premise in writing. Our hopes were raised when counsel raised the issue in each of two oral arguments at last month’s Sin City Spectacular. Both those counsel ultimately emerged victorious from their Panel adventures, but in neither opinion did Their Honors explicitly address the issue. We contend that the penumbrae of those opinions endorse our view, and will argue accordingly when we are next before the Panel.
Exhibit 1 as to the above is MDL 2492, In re NCAA Student-Athlete Concussion Injury Litigation, in which the initial copycats might have prevailed had not subsequent copycats piled on.* Hagens Berman and others invested over 8,000 hours of their time over two years in prosecuting the initial action in the N.D. Ill., only to see new plaintiffs’ counsel file elsewhere after recent developments in that action (and a similar action against the NFL) raised their hopes for big paydays.
Their Honors granted Hagens’ 1407 motion (which the NCAA supported), but added that the copycats’ opposition would have been “persuasive” had there been fewer such felines. We suspect the initial copycats struck the late filers from their Christmas card lists for that one. As for the winners, kudos to Steve Berman for raising the copycat issue when the mainstream media came calling last week.
MDL 2499, In re Goodman Manufacturing Co., L.P., HVAC Products Liability Litigation, flew below the national radar. But no Panel proceeding escapes imPaneled’s radar, especially proceedings in which counsel makes an impassioned plea as to the copycat issue at oral argument. MDL 2499 initially included three cases in two districts and two sets of plaintiffs’ counsel. So it remained until the week before Vegas, when new plaintiffs’ counsel filed three copycat cases in scattered districts and jumped on the 1407 bandwagon.
That transformed a pedestrian Panel motion into a modern morality play, at least for two shining minutes. Counsel for plaintiffs opposing the motion devoted his few minutes in large part to the premise that, if Their Honors granted it, they would effectively reward the copycats for their sins of duplication. As we said, see supra, we would like to believe Their Honors endorsed that argument (i.e., motion denied). And we encourage the vast imPaneled community to continue to press Their Honors (and His and Her Honors everywhere) to endorse it explicitly.
* – Note imPaneled’s clever use of “piled on” in reference to litigation involving football players. Top that, SCOTUSblog!