This week’s spin of the Panel wheel landed imPaneled on a new proceeding that raises subject matter new to imPaneled.  Despite having been raised among the world’s foremost patent litigators (which they would happily tell you themselves), imPaneled has neglected the many patent cases on the Panel dockets–until now.

Some people would call Brandywine Communications Technologies, movant in the eponymous MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation, a “patent troll.” Brandywine precipitated MDL 2462 by filing 41 cases in 22 districts against DSL providers, alleging the infringement of six patents.  Now, imPaneled would never disparage anyone with an epithet as vile as “troll” (though we might use viler ones).  But it does bear mentioning that Brandywine is decidedly not in the DSL business.

imPaneled’s competitors (in a sense) at Thomson Reuters recently harkened back to 2011, when “conventional wisdom” was that the America Invents Act of 2011 would force patent trolls to the Panel in droves, which has not necessarily happened yet.  The good news is that the long-standing and ongoing battle between patent trolls and their alleged victims over joinder and venue issues raises the possibility that MDL 2462 could be particularly venomous by Panel standards.  imPaneled will be rooting for that.

* – imPaneled composed the title of this post with assistance only from this invaluable site–really–only to discover afterwards that everyone who has written about this subject has used the same title.  Sorry, imPaneled fans–sometimes you get what you pay for.

. . . is surely Abbott Laboratories, which has, by imPaneled’s estimation, entangled itself in more complex litigation and government investigations than any other titan of corporate America over the last 20 years.  What would motivate such a scurrilous assertion, you say?  Well, imPaneled decided to end its most recent hiatus by reporting on the most recent Panel proceeding to hit the dockets, whatever that might have been.  And, lo and behold, it was filed by imPaneled’s old friend Abbott, the primary offender–make that alleged offender–in MDL 2460, In re Niaspan Antitrust Litigation, a pay-for-delay proceeding now pending in the East Coast district court nearest you.  Abbott first appeared on imPaneled’s radar long before “blog” was a word, as the primary offender in In re Infant Formula Antitrust Litig. (N.D. Fla. circa 1993).

Abbott has since kept the wheels of justice turning with multiple violations.  imPaneled’s hurried Lexis search turned up only four, but memories of having seen others are seared–seared!–in imPaneled’s mind.  But the four alone make for quite a record.  The quotes below are unattributed, but imPaneled is so trustworthy as to not require citations:

2012: “Abbott signed the $1.6-billion settlement agreement in May 2012 to resolve all outstanding issues regarding the investigation of past sales and marketing practices relating to Depakote in the US.”

2008: “Abbott Laboratories To Pay $184 Million To Settle Fenofibrate Lawsuits.”

2003: “This settlement resolves all outstanding issues arising from the previously disclosed government investigation of the Ross Products Division for which Abbott took a charge of $622 million in the second quarter and announced on June 26.”

2001: “Abbott Laboratories announced that its reserves are adequate to cover its half of the costs related to the $875 million settlement announced between the U.S. Department of Justice and TAP Pharmaceutical Products Inc., a joint venture of Abbott and Takeda Chemical Industries, Ltd. of Osaka, Japan.”

Rumors that Abbott has a Malfeasance Management Division are unfounded.  imPaneled thanks Abbott in advance for whatever further contributions to attorneys’ retirement funds will be forthcoming as a result of MDL 2460.

Or at least all the news that arose from last Thursday’s hearing that’s fit to post.  The Plavix–excuse us, Plavix®–argument that opened the hearing was something of a marathon by Panel standards.  But the remainder of the hearing was a sprint that ended less than two hours after Plavix® began.  The Panel initially scheduled only ten proceedings for argument, and five of those fell by the wayside for various reasons.

Of the remaining four, only the first two were entertaining.  Their Honors’ relative feistiness in the Plavix® argument carried over to that in MDL 2419, In re New England Compounding Pharmacy, Inc., Products Liability Litigation, as they scored movants’ counsel–at least by Panel standards–for seeking to move the proceeding to the D. Minn. rather than the D. Mass., where the alleged atrocities occurred, the defendant’s bankruptcy is pending, and all others involved want the actions centralized.  Judge Furgeson tried to help movants’ counsel by suggesting “you can see where this is going” as she took the podium for her rebuttal.  She apparently did not see where this is going, and dug herself deeper before the red light mercifully ended the argument.

The argument in MDL 2420, In re Lithium Ion Batteries Antitrust Litigation, was less contentious, but entertaining nonetheless.  When Judge Rendell raised the grand jury convened in the N.D. Cal., movant’s counsel Jim Cecchi* (pressing for the D.N.J.) demurred on the premise that New Jersey bows to no one where dealing with crime is concerned–which drew by a substantial margin the most laughs of the day.  imPaneled encourages the Panel to award points for humor, which would surely enliven its proceedings.  But unless and until it does, MDL 2420 will more likely end up in the N.D. Cal., which otherwise got the best of the argument.

* – Mr. Cecchi presumably pronounced his name correctly (CHECK-ee)–which is notable only because every attorney who followed him pronounced it otherwise.

imPaneled should have known why certain defendants’ counsel include an “®” next to their every reference to their clients’ products in their briefing–to prevent those trademarked names from losing their value by becoming genericized.  Thanks to Manny Pokotilow and Dan Simons for their insights as to that, and shame on imPaneled for not having recalled that earlier.

That said, if imPaneled were faced with the issue, we would at least try to convince our clients that limiting the ®’s would please most judges, whose relatively aged eyes would prefer as little clutter as possible in their reading material.

When we last visited MDL 2418, In re Plavix Marketing, Sales Practices and Products Liability Litigation (No. II), imPaneled was making light of plaintiffs’ counsels’ excessive respect for one another’s written work product, which resulted in their submitting to Their Honors several largely repetitive briefs.  Unfortunately, the straight arrows at Arnold & Porter chose not to reference that in their reply brief.

They did, however, affix an “®” to their every use of the word “Plavix.”  Never having had reason to consider doing that, imPaneled is at a loss as to its purpose.  Is it so important to remind the world that “Plavix” is a registered trademark that a footnote at the beginning of the brief would not suffice?  More importantly, is there an associate or paralegal specifically charged with proofing briefs to make sure every “Plavix” is accounted for?  Someone missed a few in defendants’ opening brief.  Is that person still with A & P?  Have they been excommunicated from the defense bar?  Anyone who can offer imPaneled any insight will get a free plug in a subsequent post.

Anyhow, Their Honors spared little effort in tipping their hands at Thursday’s hearing (more on that soon), as Judges Breyer and Furgeson subjected plaintiffs’ counsel to focused–nay, withering–questioning as to why the pending actions should not be centralized.  They responded in part to Judge Furgeson by claiming that the “major” plaintiffs’ firms are coordinating their discovery efforts, and that common facts “do not predominate.”  Oy vey.  imPaneled humbly suggests that certain judges should anticipate making room in their dockets for an MDL proceeding.

The parties to MDL 2418, In re Plavix Marketing, Sales Practices and Products Liability Litigation (No. II), have something of a knack for repeating earlier events.  The defendant pharmacologists may well benefit from that.  The scads of plaintiffs aligned against them?  Well, let’s just say they certainly admire one another’s written work product, and leave it at that.

Our story begins with MDL 2300, In re Plavix Products Liability Litigation, in which plaintiffs’ counsel represented to the Panel that they could coordinate their discovery efforts in the relatively few cases then pending, absent centralization.  Their Honors denied defendants’ 1407 motion, based in part on the paucity of cases.

Much to defendants’ chagrin, the cases multiplied and the cooperation deteriorated.  In recent months, one plaintiffs’ attorney announced that he would not work with the others, and pressed for separate discovery limited to his case.  When he filed a motion to compel with a return date a week later, defendants reached their breaking point, and within days initiated a new Panel proceeding.

Whatever failure of cooperation afflicted plaintiffs’ discovery efforts did not afflict their response to defendants’ renewed motion.  Over the course of a single day, the private plaintiffs filed six briefs:

• Three of them opposed centralization in any court.  Two of those briefs were virtually identical.  A third was substantially identical in substance, but its authors managed to rearrange some of the words in the other two.
• The other three opposed centralization, but proposed alternative transferee courts (the S.D. Ill., the S.D. W. Va. and the N.D. Cal.) in the event that the Panel disagreed.  Those briefs would have been identical, but the authors mixed it up (relatively speaking) by putting the sections in differing orders.  And one added some introductory language copied verbatim from two of the other group’s briefs.

The Mississippi Attorney General’s office filed a brief opposing centralization that was relatively short, but at least original in its entirety.

All seven plaintiffs’ briefs did share one thing in common.  Despite being rife with string citations, none of them undertook to distinguish the cases defendants cited in which the Panel granted a 1407 motion after having previously denied one in the same proceeding.  But two of the plaintiffs’ briefs did cite one of defendants’ cases for an entirely unrelated proposition.  imPaneled was not amused upon  seeing that.

Unfortunately, MDL 2418 was docketed too late to be heard in Dallas later this month.  imPaneled anxiously awaits the oral argument excitement that will be forthcoming in late January.

. . . to see class action plaintiffs’ counsel accused of engaging in procedural gamesmanship to seize control of litigation against a defendant with deep pockets.  Alas, if Gibson Dunn has told the Panel the entire sordid saga of litigation against its client Frito-Lay, that is exactly what has happened.

By way of background, the Panel’s dockets have recently reflected what at first glance appeared to be a veritable crime spree by Frito-Lay.  On consecutive business days, plaintiffs initiated 1407 proceedings in MDL 2413, now captioned In re Frito-Lay Bean Dip Marketing and Sales Practices Litigation, and MDL 2414, In re Frito-Lay Tostitos & Sun Chips Marketing & Sales Practices Litigation.

Frito-Lay recently shed some light on the mystery, detailing how litigation as to all of its delicious and nutritious snack items has been proceeding apace in the E.D.N.Y., and seeking to centralize both MDLs there.  But, says its counsel, a bevy of plaintiffs’ firms, led by San Francisco’s Law Offices of Howard W. Rubinstein, P.A., have “file[d] multiple duplicative lawsuits [in other districts] in order to obtain a stake in earlier-filed litigation.”  The details, which are consolidated on the penultimate page of Frito-Lay’s submission, are not pretty.  Says Gibson Dunn: “All of this has to stop. The judicial system is not designed to work this way.”

Those are fightin’ words, at least by Panel standards.  Fortunately, plaintiffs in both MDLs have an opportunity to defend their honor in reply briefs.  imPaneled looks forward to that, as well as a lively discussion in Dallas next month.

“That’s a mite alarmist,” I hear you say.  Well, the terrorists are responsible for the S.D.N.Y. rule precluding the use of laptops in the courthouse.   As a result, imPaneled’s notes from yesterday’s Panel hearing are on dead trees–at another location.  As a result, imPaneled is now forced to report on that Panel hearing without having notes to ensure the maintenance of its high standards of journalistic integrity.  Ergo, the terrorists have won.

Fortunately, yesterday’s Panel hearing, like most, included moments that are seared in imPaneled’s memory:

• The oral argument in MDL 2388 (In re Mortgage Lender Force-Placed Insurance Litigation) was a spirited discussion of issues similar to those raised in MDL 2394 (In re Real Estate Transfer Tax Litigation), i.e., is centralization appropriate for cases sharing common fact patterns, but not necessarily common facts?  A strict reading of imPaneled’s favorite statute would compel the Panel to say “no.” But see MDL 1334 (In re Managed Care Litigation).  Movants in MDL 2388 did in fact ask the Panel to see In re Managed Care Litigation.  imPaneled leaves to the litigants whether that MDL served the purposes of the statute, and anxiously awaits the resolution of MDL 2388.

• Counsel for the defendants in MDL 2391 (In re Biomet M2a Magnum Hip Implant Products Liability Litigation) opposed centralization on the premise that centralization encourages plaintiffs to file additional cases–all of which lack for merit.  The Panel rather cleverly responded with two questions: Does centralization transform frivolous cases into meritorious cases?  And is a transferee court any less capable of dismissing frivolous cases that a transferor court?  Even before counsel was forced to answer those questions in the negative, it struck imPaneled that Biomet is not offended that centralization makes cases more meritorious nearly so much as it is offended that centralization makes cases more affordable for plaintiffs.  imPaneled congratulates the Panel for making that point without embarrassing Biomet’s counsel any more than it did, and anticipates that the right decision will be forthcoming.

• Mark Lanier was responsible for the high comic point of the day, when he pressed for the transfer of MDL 2391 to Houston based in part on its boasting “the best minor league baseball team” in the nation.  Okay, so that was funny only to imPaneled and the other baseball fans in attendance.  You want great comedy at Panel hearings, get this guy appointed to the Panel.

Four oral arguments–all of which will happen relatively early in the day–will be the “main attractions” (as a renowned scribe referred to them) at tomorrow’s Panelpalooza in the S.D.N.Y.  But three of those qualify primarily due to the number of parties involved.  MDL 2394-captioned In re Real Estate Transfer Tax Litigation–boasts issues above and beyond the usual “where are these cases going?” raised by standard Panel fare, in addition to scores of parties and counsel.

MDL 2394 is a sad reflection on our times in that it is a product of Fannie Mae’s and Freddie Mac’s taking title to scads of foreclosed homes nationwide.  Evidently, those government-sponsored enterprises (“GSEs”) have claimed exemption from statutes in 35 states that normally require the payment of transfer taxes upon the sale of real property.  Much litigation has resulted therefrom.

Plaintiff Genesee County (Mich.) initiated the Panel action, citing common factual issues in cases which, on their faces, arguably entail only a common legal issue.  See imPaneled’s favorite statute (“When civil actions involving one or more common questions of fact are pending in different districts . . .”) (emphasis added).  The GSEs predictably raised that in opposing centralization, as did several defendants, big and small, not common to the underlying cases.  And, in yet another  unusual development, a small number of plaintiffs sided with the defendants in opposing centralization.

imPaneled looks forward to compelling oral arguments as to MDL 2394, as well as all of the other action tomorrow.  Stay tuned for coverage–maybe not in-depth coverage, but coverage nonetheless.

Based on the mass exodus of high-priced talent from the courtroom following its oral argument at last month’s Panel hearing, imPaneled can safely say that In re Carrier IQ, Inc., Consumer Privacy Litig., MDL 2330, was the main event at that hearing.  Plaintiffs favoring the United States District Court for All IT-Related MDLs (“D.A.I.M.,” a/k/a the N.D. Cal.) opened both the briefing and oral argument, the latter by Tony Shapiro (pronounced Sha-PEER-o in his native NYC) of Hagens Berman.  The usual flood of plaintiff written submissions favoring various other districts followed the initial one, but only three counsel–arguing for the C.D. Cal., the N.D. Tex. and the N.D. Ill.–spoke at the hearing.  Software developer Carrier IQ and its cell phone manufacturer co-defendants predictably weighed in for the D.A.I.M.

To the surprise of no one, that is where it went.  The only surprise–at least to imPaneled–was the Panel’s assigning the case to Judge Chen, as Judge Davila’s name arose repeatedly at the hearing.  Panelist Judge Breyer (also of the D.A.I.M.) was party to much of the speculation at the hearing as to which N.D. Cal. judge might get the proceeding, then “took no part in the decision of th[e] matter.”  imPaneled has not undertaken to complete the massive pointing and clicking effort that would be necessary to get the back story as to any of that, but welcomes further insight from any of the millions who are reading this post.

imPaneled has long bemoaned the relative brevity of Panel opinions in recent years.  Yes, Panel opinions tend to ostensibly turn on a small set of factors, which have not changed in ages.  But cookie-cutter opinions provide little grist for imPaneled, and providing grist for imPaneled should be a higher priority for the Panel.

Fortunately, certain plaintiffs in In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation, MDL 2342, left the Panel no choice but to explore new territory when they repeatedly insisted that the Panel should deny Pfizer’s motion for centralization because of its allegedly improper removal of several cases on the eve of its filing the motion.  The Panel dismissed that argument:

 [T]he Panel has long held that jurisdictional objections do not overcome the efficiencies that can be realized by centralized proceedings.  The Panel also has held that centralization “does not require a complete identity or even a majority of common factual issues as a prerequisite to centralization”; nor does it “require a complete identity of parties.”

Order, at 2 (citations omitted).

So Pfizer wins.  Right?  Wrong!  Pfizer sought centralization anywhere but the Eastern District of Pennsylvania, which has in the past remanded similar cases.  The rebellious plaintiffs had accused Pfizer of seeking to evade those precedents.  If that claim is in fact true–and imPaneled would never accuse a Panel litigant of doing something so underhanded–Pfizer’s effort failed.  But Pfizer did succeed in establishing new Panel precedent, so they have that going for them.