It’s Always Testy in Philadelphia

Last week’s Panel showdown ran a mere three hours, but included a full day’s worth of pointed questioning from Their Honors, high-quality argument by counsel of all stripes, and a closing act that threatened to devolve to fisticuffs.  And imPaneled captured copious notes of all of the action, thanks in part to the electronics-friendly management of the E.D. Pa. courthouse.

All of the above was preceded by mass Philly-style socializing at over a half-dozen venues (including this local institution) on Panel Hearing Eve.  Thanks to the sponsors of that gastronomic decadence.  The hearing was immediately preceded by a brief tribute to the departing Judge Vratil (to be replaced by Judge Ellen Huvelle of the D.D.C.).  Her Honor lauded the Panel bar for having inspired her with “what [they] can do in one minute of argument.”  And there ended the 16-hour era of good feelings.

Unfortunately, the courtroom was substantially empty for the foremost nastiness, which transpired during the day’s final argument, over the fate of MDL 2477, In re Electrolux Dryer Products Liability Litigation.  Insurance company plaintiffs (including State Farm) are pressing for centralization, based in large part on their claim that defendant Electrolux has avoided discovery of key facts via assorted procedural shenanigans, even in cases that have gone to trial.  In their view, only the strict supervision of a single judge can remedy that.  Electrolux counsel was predictably (and visibly) offended by that contention, and spewed vitriol at State Farm in particular for its own alleged malfeasance.

The most substantive exchanges were those between Their Honors and counsel in MDL 2472, In re Loestrin 24 FE Antitrust Litigation.  Defendants pressed the D.N.J., based on Judge Pisano’s familiarity with the patent issues underlying that proceeding, which resulted in extended argument as to whether His Honor’s judgment might be affected by his previous rulings.  Plaintiffs claimed those patent issues are substantially irrelevant by virtue of FTC v. Actavis, 133 S.Ct. 2223 (2013), which resulted in uncommon (by Panel standards) discussion of merits issues.  Plaintiffs who favor Judge Rufe (of the E.D. Pa.) arranged for one of their number to press a strictly defensive argument, comprised entirely of a report on the three MDLs currently on Judge Rufe’s docket–which defendants claim cannot accommodate another MDL.  Only the D.R.I.–favored by a minority of plaintiffs–is apparently complication- and MDL-free.  Their Honors indicated a preference for that district.

Plaintiffs substantially agree as to MDL 2474, In re H&R Block IRS Form 8863 Litigation, which they want moved to the C.D. Cal.  But Their Honors subjected plaintiffs’ spokesman to a veritable verbal assault for his inability to explain to their satisfaction how the case is connected to that district.  Expect that to land in defendants’ preferred court, the W.D. Mo.

The dissenting plaintiffs’ oral argument in MDL 2475, In re North Sea Brent Crude Oil Futures Litigation, was as skillful and well-developed as their written submission was curiously short (more on that here*).  But Their Honors did not appear to be moved. According to Carnac the Magnificent, the answer as to that proceeding is “Southern District of New York,” favored by defendants and the majority of plaintiffs.

Stay tuned for reports on the orders that result from all the Philly phun, as well as updates on cases that were the subject of now ancient imPaneled posts.

* – The post linked above also questioned defendants’ neutrality in MDL 2476, In re Credit Default Swaps Antitrust Litigation.  imPaneled’s exhaustive investigative work resulted in an informed and reliable explanation as to that.  However, the work product doctrine precludes us from disclosing it here.

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2 Comments

  1. Rob Taylor-Manning

     /  10/02/2013

    Bart, your concise summary is incomplete, in my opinion, without a mention of “the MDL Spirit” – articulated by Judge Vratil, and immediately incorporated by sharp-witted counsel in the first two oral arguments of the day. Or as we in Seattle say, smells like MDL spirit . . .

    Reply
  2. Yes, I should have mentioned “MDL spirit” for the benefit of imPaneled’s legions of readers. But I couldn’t in good conscience bring myself to tout it, as I’ve found it’s not quite as widespread as Her Honor apparently thinks. I’ll rectify that in my coverage of the next Panel hearing–in Vegas, where there’s sure to be ample MDL spirit.

    Reply

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  • About the blogmaster

    Bart Cohen is the principal of the Law Office of Bart D. Cohen, where he represents his clients in class actions and other complex litigation, and Winning Briefs, where he polishes, edits and drafts written work product for overextended lawyers.

    His unnatural appetites for rules and research of all kinds have made him an expert on proceedings before the Judicial Panel on Multidistrict Litigation. He feeds those appetites and chronicles the battles to land lead counsel appointments that are fought in part before the Panel on imPaneled.

    You can contact Bart here or connect with him here.

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