The blog may be silent for now . . .

. . . but I still have a phone and a pen.  I’ll keep my opinions to myself when you take them from my cold, dead hands.  Or something like that.  See here for details.

Silence is golden

Everyone at imPaneled apologizes to the many of you who have been lying awake at night wondering when you might see another post here. We feel your  pain, as reporting the ups, downs and wacky antics of the world of class actions and complex litigation is always more fun than anything for which we might actually get paid. But that pesky need to get paid is perpetually the bane of imPaneled’s existence.

As to that, the boss here is now getting paid directly by clients (details on the right), rather than by other lawyers. That’s generally a good thing. But it required time to put in place–which explains the recent silence–and will require that imPaneled stay friendly with the rest of the world if it is to succeed. We at imPaneled have been known to be a mite opinionated, online and offline, and will not have it any other way. That, however, is not conducive to staying friendly with the rest of the world.

So imPaneled will be lying low for a bit longer. If all goes well, it won’t be long until we’re swimming in so much cash that we can afford to offend anyone and everyone who deserves it.  On that note, here’s one for the road: A curse on anyone who files a frivolous lawsuit. As we have said elsewhere, they waste our courts’ resources, discredit the plaintiffs’ bar, and provoke further restrictions on legitimate cases.

That’s it for now.  If you want more of the same sooner rather than later, follow the advice of the legendary Soupy Sales: Put those “funny green pieces of paper with pictures of U.S. Presidents . . . in an envelope and mail them to me.”  Barring that, we’ll be content with just your good wishes.


What’s Centralized in Vegas Stays in Vegas

imPaneled is in unseasonably cool Sin City, and hoped to post a comprehensive preview of tomorrow’s first-ever (?) Vegas Panel hearing.* But technical difficulties have interfered with those plans.  Suffice it to say for now that aluminum warehousing, concussed college football players, and ramen noodles will be prominent on the agenda.

Fortunately, our good friends at the American Antitrust Institute provided us with ample material yesterday, at their annual Private Antitrust Enforcement Conference–which for the first time included an awards ceremony.  Unfortunately, the award categories did not include “Most Irreverent Blog Covering Procedural Issues.”  Maybe next year.

But the event did include an entertaining and informative discussion of Panel issues.  The entertainment was primarily courtesy of Susman & Godfrey patriarch Steve Susman, who was refreshingly frank–and by “refreshingly frank,” we mean “scathingly critical”–of Panel hearings and many of the decisions that result from them.  He started the discussion by observing that Panel hearings appear to be little more than parties for plaintiffs’ attorneys.  imPaneled takes umbrage with that remark, and hopes to address it in another post after we return from the Strip some time after midnight.

Playing able defense was Duke Law School Professor Francis McGovern, who is perhaps the only outsider who has spent more time studying the Panel than has the imPaneled staff.  He admitted that two-minute oral arguments add little to most cases.  But since Their Honors cannot always be certain of having mastered the facts based on briefs alone, there have been repeated instances in which oral arguments have proven invaluable.  That by itself surely justifies unlimited parties for plaintiffs’ attorneys.

Mr. Susman suggested that cases are too frequently transferred to judges who are unable to properly handle them.  As to that, Professor McGovern substantially agreed, and revealed having pressed Their Honors to establish a certification program for transferee judges.  But those efforts have been stymied by a strong sentiment among district court judges that they should be treated as equal in all ways, and pressure on Their Honors to spread the MDL wealth to the judicial hinterlands, rather than concentrating it in major metropolitan areas.

The discussion was chock full of anecdotes relating absurd arguments raised at hearings past by audacious counsel.  But the excitement for which imPaneled was hoping the most was not meant to be.  There was some discussion of instances in which potential transferee judges’ preferences might weigh on Their Honors’ deliberations.  So we closed the program by asking Professor McGovern directly whether those preferences in fact carry more weight than Their Honors disclose publicly (which we have long believed to the case).  Alas, he said only that they have accounted for more weight only recently, but only in instances in which the Panel has needed to assess whether it would be feasible for parties to proceed efficiently absent centralization.**

imPaneled has been assured that the technical difficulties that derailed our preview will not derail our post-game report.  Don’t change that dial in the interim.

* – Their Honors apparently do not maintain on their web site a list of their prior hearing locations.  If anyone among our legions of readers happens to know whether the hearing has been here before, speak up–unless everyone who attended was sworn to secrecy.

** – We cannot close this post without crediting Craig Corbitt and retired Judge Vaughn Walker for their ample contributions to yesterday’s discussion.

“Wait ’til next year!” revisited

imPaneled is pleased to be back, and pleased to be back on the lead counsel beat in particular, as imPaneled’s recent coverage has been decidedly Panel-centric.  But our reaction to recent lead counsel news is less pleasure than disappointment, as a court that raised our hopes by venturing well outside the box has lowered them by putting at least one foot back in the box.

imPaneled takes you back to yesteryear to explain that metaphor.  The many readers who view imPaneled as something akin to scripture surely recall a post from around this time last year, in which we lauded Chief Judge David Herndon (S.D. Ill.) for appointing truly interim lead counsel in MDL 2385, In re Pradaxa Products Liability Litigation.  As we reported at the time: “His Chief Honor appointed five (that’s 5, or in Roman, V) co-lead counsel, and added 22 other ‘leadership’ positions for good measure.  That’s the bad news.”  B. Cohen, Lead Counsel Shall Make Money the Old-fashioned Way–They Shall Earrrrrrrrrn It, imPaneled, Oct 5. 2012 (available at . . . right here).

We’ll quote His Honor for what appeared at the time to be good news: “The Court has serious concerns about the large size of this leadership group. . . . Because of the Court’s concerns with the size, the appointments above are for the period to expire October 31, 2013. The Court will accept new applications no later than October 1, 2013.”  Those dates have passed, and His Honor did in fact issue an order accordingly.  But his concerns about the size of the group are apparently not what they were a year ago.  The “new” leadership group is identical in size to the old one and, with the exception of one position on the low-ranking “steering committee,” identical in composition.* The recent order does not explain His Honor’s reasoning, and the re-bidding process transpired off the record, so we will not be further enlightened absent inside information from the counsel involved (who are more than welcome to further enlighten us).

We had high hopes for massive cuts and perhaps some reshuffling this year when His Honor issued his order last year.  That was not to be.  But the order in all likelihood induced everyone named on it to be at least marginally more productive and cooperative than they otherwise would have been.  So our kudos to His Honor remain intact.  We encourage him and his colleagues to continue to venture outside the box in the future.

* – imPaneled leaves it to diligent readers to identify the sole soul–and an unlucky soul at that–who missed the cut.

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.

Did you say “yutes”?

The legal minds at imPaneled have recently been wrestling with weighty issues going to the Panel’s administration of justice.  But it’s a Friday afternoon in August, so those issues will have to await another post.  The spotlight today falls on the comedy highlights from the Portland Panel courtroom–none of which are quite on a par with the highlights from the above-quoted proceedings in a fictional Alabama courtroom.  But Their Honors and the Panel bar still get an “A” for effort.

Blair Hahn of Richardson Patrick scored comedy points in Portland, when he suggested that the cases comprising MDL 2459, In re Lipitor Marketing, Sales Practices and Products Liability Litigation, should be centralized in a southern court because the South is “the Diabetes Belt.”  Their Honors, however, were more impressed with the fact that relatively few cases are pending in light of Lipitor’s long-time and wide-spread use, and denied the motion accordingly.

In MDL 2454, In re Franck’s Lab, Inc., Products Liability Litigation, Their Honors had much to say about defense counsel’s efforts to compress ten minutes worth of argument into two minutes, repeatedly chiding him for speaking too quickly.  Judge Breyer (“You must be compensated by the page.”) and Chief Judge Heyburn (“You should do disclaimers on TV ads.”) were most creative to that end.  But Franck’s Lab had the last laugh, as the Panel granted its motion.

MDL 2460, In re Niaspan Antitrust Litigation, for now falls in the “mystery” rather than “comedy” category, as Their Honors still have not issued an order in that proceeding, a week after otherwise completing their Portland clean-up.  Perhaps certain candidates for the MDL prize have temporarily vacated their chambers for cooler climes in the August heat, and haven’t been taking Their Honors calls.

Finally, imPaneled cannot help but take a bow for nailing our prediction as to MDL 2457, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (No. II).  After allowing the red light in the courtroom to glow longer than any outside of Amsterdam during Dan Becnel’s Panel-record length oral argument, Their Honors rebuffed his novel effort to create a new MDL from opt-outs and assorted scraps of MDL 2179, In re Oil Spill (blah blah blah) . . .  .  And–just like imPaneled–they gave a shout-out* to Elizabeth Cabraser for her able defense of the existing MDL.  Is that “comedy”?  Perhaps not to you.  But we had a nice chuckle in a “great minds think alike” kind of way.

More to come next week, when imPaneled will finally shed its Portland-centric posture.

* – The above should not be construed as a blanket endorsement of 21st century colloquialism in scholarly legal writing such as imPaneled.

Section Fourteen-NO!-Seven

Their Honors have had a productive week, issuing orders in all but a handful of the proceedings that last proceeded in Portland.  And one particular word is common to most of those orders, a word other than the usual suspects (e.g., “re”, “Heyburn”, “litigation”, “schedule”, “centralization”, “isosceles”*).  That word is “denied.”  Their Honors have slugged 11 out of 14 proceedings off their dockets this week, for a Ruthian .786 slugging average.

Much to the delight of the defendants on its dozens of complaints, the sluggees include the movant in MDL 2462, Brandywine Communications, whom defendants accused of appalling procedural misconduct in their Panel submissions.  imPaneled is most pleased that Their Honors noted that in denying the motion, and that they rewarded the defense attorney who informed them at the hearing that “the term of art [for Brandywine] is ‘patent troll.’” Practice note: Name-calling is an effective tool when arguing before the Panel, so long as said names are terms of art.

imPaneled is less pleased with the Panel’s denial of defendants’ motion in MDL 2463, In re Fresh Dairy Products Antitrust Litigation (No. II), in which plaintiffs’ counsel voluntarily dismissed an earlier action after its § 1404 transfer to defendants’ preferred court, only to refile with new plaintiffs in yet another court.  Defendants’ scorched-earth attack on that and other procedural maneuvers perhaps incorporated excessive substantive argument, which induced Their Honors to reach far into the past: “‘[[T]]he framers of Section 1407 did not contemplate that the Panel would decide the merits of the actions before it and neither the statute nor the implementing Rules of the Panel are drafted to allow for such determinations.’ In re Kauffman Mut. Fund Actions, 337 F. Supp. 1337, 1339-40 (J.P.M.L. 1972).”

The Panel did not rely on that reasoning in denying the non-settling plaintiffs’ motion in MDL 2468, In re Pilot Flying J Fuel Rebate Contract Litigation.** But it was clearly lurking in the background, as Their Honors held that the parties and various presiding judges should resolve issues arising from the pending settlement before the Panel weighs in.

imPaneled is most distressed with the Panel’s denial of plaintiffs’ motion in MDL 2453, In re Adderall XR Marketing, Sales Practices and Antitrust Litigation–but not for reasons that have anything to do with nonsense like convenience, justice and efficiency.  MDL 2453 was the first proceeding in which imPaneled speculated publicly as to the result based on the hearing–and we got it wrong.  Perhaps we should have been less taken with Judge Barbadoro’s skewering of defense counsel, and more taken with the fact that plaintiffs in the various actions all assert indirect claims based on the statutes of different states.  Their Honors were more taken with the latter.  Finally, we kind of got one right, when we lauded Judge Barbadoro for chiding plaintiffs’ counsel in MDL 2454, In re Franck’s Lab, Inc., Products Liability Litigation.  Their Honors granted defendants’ motion to centralize those cases in the E.D. La.

More Portland Panel postmortem to come after the last few orders hit the dockets.  Then perhaps imPaneled can turn back to some good lead counsel fights.  In the meantime, if you’re not aware of any such fights, feel free to start one.

* – Not really.  imPaneled just wanted to make sure you were reading carefully.

** – Background as to that ugliness is here.

Portland Panel Post-Game Prognostications

Portland Panel ‘13 is now just a great memory.  Our Panel Tour t-shirts and other Panel swag are packed and headed home.  The lawyer turnout was small by Panel standards, but the city and the assorted legal services vendors in attendance were good to those who made it.

But you’re not here for that fluff.  You want to know what happened in the courtroom, and what may happen going forward as a result.  And imPaneled will not disappoint.  Despite a preternaturally bad record of prognosticating in all other contexts, imPaneled is going to hazard a guess as to some of what is forthcoming as a result of yesterday’s hearing, based strictly on what transpired on the record.  Of course, imPaneled is not privy to all of what transpires behind the scenes among the counsel involved, or–more importantly–between Their Honors and the transferee judge candidates involved.*  In other words, the forecasts below are not legal advice, and by reading this post, you hereby release imPaneled from liability for your acting in reliance on any or all of them.

Enough with the disclaimers. Chief Judge Heyburn opened yesterday’s festivities by welcoming to the Panel bench Judge Sarah Vance of the E.D. La., as does imPaneled.  She replaces Judge Furgeson–he of the oft-misspelled last name–whose inquisitive nature will be missed.  Fortunately, Judge Barbadoro was more than inquisitive, as he repeatedly interrogated counsel as to strategic issues underlying their arguments.  His Honor was most forceful in the contentious MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation (which has been the subject of previous imPaneled coverage) wherein the sole plaintiff, alleged “patent troll” Brandywine, filed and prosecuted cases all over the nation for some time before moving to centralize them in the first court to issue a substantive ruling in its favor (the M.D. Fla.).  Judge Barbadoro asked Brandywine’s counsel whether his motion was filed to seek a substantive advantage, and after counsel denied that, asked incredulously whether the sequence of events was a coincidence (which prompted lawyerly evasion).  Good stuff.  Counsel for the many small-business defendants had the good sense to promptly admit his clients’ strategic motivations when His Honor confronted him.  Their Honors did not tip their hands as to what will happen going forward, but did raise one interesting possibility–they might centralize all of the cases except the M.D. Fla. case in some other court.

In MDL 2453, In re Adderall XR Marketing, Sales Practices and Antitrust Litigation, Judge Barbadoro all but accused defense counsel of resisting centralization solely to inconvenience plaintiffs.  Expect those cases to land in front of Judge Ludwig of the E.D. Pa., who (according to plaintiffs’ counsel) has taken the unusual step of having written to the Panel that he will accept the cases.  His Honor hit the mark again in MDL 2454, In re Franck’s Lab, Inc., Products Liability Litigation, when he scolded plaintiffs’ counsel for citing his clients’ locations, on the premise that they would not have to travel to the transferee court unless and until the cases went to trial there.

Virtually all Their Honors dropped their verbal gavels on Dan Becnel in MDL 2457, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (No. II), in which he seeks to create an MDL proceeding separate from the existing one for the benefit of certain plaintiffs whose claims he says are being unfairly delayed.  Elizabeth Cabraser responded with a stirring defense of Judge Barbier’s handling of the existing proceeding in the E.D. La.  Expect her to prevail.

Judge Rendell was most skeptical in MDL 2460, In re Niaspan Antitrust Litigation, questioning defendants’ claims that Judge Marrero (S.D.N.Y.) is the ideal transferee judge candidate, for having overseen related patent litigation.  Pennsylvania’s First Lady Emeritus noted that: (1) the patent case closed eight years ago; (2) Judge Marrero has three other MDLs on his docket; (3) he has none of the pending Niaspan cases; and (4) he has shown no apparent inclination to take the case.  Give plaintiffs touting the E.D. Pa. an edge going forward.

Those are most of yesterday’s substantive highlights.  On some date that begins with an “8,” imPaneled will hopefully fill in some blanks, including the comedy highlights, which were many by Panel standards.  Kudos to Judge Breyer in particular for bringing his A game as to that.

* – imPaneled has long suspected that judicial politics play more of a role in the Panel’s activities than is made known to the Panel fan base.

If they want to settle the case, don’t hassle ’em!

In keeping with the football theme of the ongoing Portland Panel Preview, imPaneled shines the spotlight today on MDL 2468, In re Pilot Flying J Fuel Rebate Contract Litigation.  imPaneled’s many readers in Cleveland and Tennessee are likely aware of the underlying claims, as Pilot Flying J is the family business of Cleveland Browns owner (and PFJ CEO) Jimmy Haslam and his brother, Tennessee governor Bill Haslam.  In those parts of the country, press coverage of the allegations has been so intense that controversy surrounding Thursday’s Panel hearing in the case was actually covered in a mainstream newspaper.

But laypeople, try as they may, can’t convey the Panel-centric nuances of the proceeding like imPaneled can.  It began like so many before it, with the public disclosure of a federal investigation, followed by a flood of class actions and a Panel motion.  That in turn was followed by a slew of responses, with most plaintiffs favoring centralization in the S.D. Miss. and PFJ touting its home turf in the E.D. Tenn.

The proceeding became interesting less than a week ago when some (but not all) of the plaintiffs filed in the E.D. Ark.–a district to which no one seeks transfer–a motion seeking the preliminary approval of a class-wide settlement they had reached with PFJ the previous day.  Judge James M. Moody preliminarily approved the settlement the day the motion was filed.  Two days later, the settling parties (including PFJ) asked to stay the Panel proceeding.  The non-settling plaintiffs predictably resisted (and predictably questioned the terms of the settlement) the following day.  And after no doubt spending the weekend engrossed in internal debate, the Panel today entered the minute order imPaneled was hoping to see: “Oral Argument will proceed in this docket as planned.”  Oral Argument indeed.  Settling plaintiffs’ counsel include Lieff Cabraser, the Becnel Law Firm and Zimmerman Reed.  Non-settling plaintiffs’ counsel include Heins Mills and Goldman Scarlato Karon & Penny.

Meanwhile, imPaneled was disappointed to be reminded that when the N.D. Cal. publicly solicited lead counsel applications in the Wells Fargo force-placed insurance cases pending there (see imPaneled’s previous coverage here), it required that they be filed by hand under seal–which means that we will learn nothing about them for the time being.  But there will be wide-ranging lead counsel drama forthcoming in that and vaguely related proceedings nevertheless, which will come to a head before the Panel on Thursday.

The N.D. Cal. Wells Fargo cases are but some of several that comprise MDL 2466, In re Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation.  The plaintiffs’ counsel who forced the public solicitation in the N.D. Cal.–Berger & Montague and Nichols Kaster–have joined forces with Kessler Topaz and Lowey Dannenberg before the Panel, seeking centralization in either the N.D. Cal. or the S.D. Ill.  The Arkansas plaintiffs who were effectively deposed in the N.D. Cal. are resisting centralization anywhere, and aligned with Kozyak Tropin and Podhurst Orseck.

And that is worthy of imPaneled’s attention because . . . .?  Because substantially the same groups of counsel are bickering over venue in three other force-placed insurance proceedings that will be before the Panel on Thursday: MDLs 2464 (v. HSBC), 2465 (v. JPMorgan Chase) and 2467 (v. Bank of America).  The possibilities that would spell victory for one group and defeat for the other are limitless.  The arguments will proceed seriatim immediately after everyone enjoys a lobster lunch.  The plaintiffs’ counsel involved may get eight (rather than the usual two) minutes to speak to the Panel as a result–which is well worth a July trip to beautiful Maine from any district in the nation.

Panel Hearing CCLXXIV . . .

. . . give or take a few I’s, will proceed in 130-odd hours in the Land of Lobster.  Why the Roman numerals?  Because to imPaneled, Panel hearings are like the Super Bowl.  And if imPaneled had more to say about it, they (like the Super Bowl) would be quasi-national holidays.  Accordingly, imPaneled is starting the pre-game analysis far in advance of the event.

The argument of MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation, will surely be among Thursday morning’s highlights.  imPaneled previously covered that proceeding, wherein the eponymous movant had been deemed a “patent troll” by certain outsiders.  We suggested mayhem might ensue as the proceeding moved forward, and we were not disappointed.  Fortunately for those of us with an appetite for verbal violence, Brandywine has sued dozens of small companies.  Small companies tend to retain small firms that do not frequently appear before the Panel.  And such firms are more prone to fighting words than are Panel veterans–which is a good thing.

So one submission opposing Brandywine’s motion starts thusly: “This is a troll case. The troll plaintiff, Brandywine Communications . . .”.  Another deemed Brandywine’s parent company “widely recognized as one of the largest patent trolls in the world.” Yet another said Brandywine “indiscriminately filed suit against thirty-nine entities”. . . “without inquiring into the factual basis for its claims.”  As to that, another added “[t]his is not appropriate jurisprudence, this is abuse of process.”  And finally: “Brandywine has made 41 beds, and now it must lie in each one.”  Predictably, the only big business defendant, AT & T, made its points more blandly, as did Brandywine in its reply.

MDL 2463, In re Fresh Dairy Products Antitrust Litigation (No. II), has proceeded without verbal fisticuffs, but with procedural fisticuffs uncommon in antitrust circles.  Defendants–who are represented by the cream of the antitrust defense boutiques, among others–made much of plaintiffs’ counsel having dismissed a case upon its § 1404 transfer, only to refile with a new plaintiff in a new district, and of their deeming an alleged indirect purchaser “direct,” in violation of the sacred Rule of Illinois Brick.  And plaintiffs scolded defendants for claiming their case was moot immediately upon making an offer of judgment to the named plaintiff, and for petitioning for mandamus when the district court refused to transfer the case to defendants’ preferred district.  It’s not just venue–it’s personal.  Meanwhile, Hagens Berman, which admits to representing indirect purchaser plaintiffs, is on defendants’ side.

More pre-game insights coming next week.  In the meantime, stock up on your beer and munchies, and tell your boss you’ll be sick on Thursday so can you can enjoy the festivities.


Sometimes we’re good . . .

. . . and sometimes we’re lucky.  Count today’s post in the “lucky” category.

By way of background, a typical imPaneled post is preceded by hours of painstaking research, dedicated to divining the most intriguing Panel proceeding and/or lead counsel dispute on the nation’s dockets.  That has not been necessary recently, because immediately after imPaneled’s last post, we received an unsolicited e-mail (the text of which is reproduced here) from the N.D. Cal. with the exceptional–no, shocking— subject line “Court Invites Attorneys/Law Firms to Submit Proposals to Serve as Class Counsel in Guerrero v. Wells Fargo Bank, N.A.”  As the court likely sent the e-mail to legions of attorneys on its ECF list, many of imPaneled’s readers likely received it as well.

But only imPaneled promptly vowed to dig deeper.  And upon digging, imPaneled unearthed a veritable iron cage match of a lead counsel dispute, rife with fighting words not only from the combatants, but from the defendant and (at least by judicial standards) the court as well.  And it all transpired in part under imPaneled’s own roof.

Now an aside as to that last thought.  imPaneled spends most of its waking hours laboring under an alternate identity, among some of the finest attorneys anywhere.  But upon donning our reporter hat, imPaneled religiously strives for objectivity and neutrality, each of which will permeate the remainder of this post.

Back to the iron cage match.  Plaintiffs’ counsel primarily from Arkansas litigated the above-referenced Guerrero case–in which plaintiffs charge Wells Fargo with various offenses relating to the forced placement of insurance–with nothing out of the ordinary appearing on the docket.  The relative peace crashed to an end in late May, when plaintiffs–represented by Nichols Kaster and Berger & Montague–asserting similar claims in other courts moved to intervene.  That submission accused Arkansas counsel of an “attempt to leapfrog” the other actions, in part by taking inadequate discovery before having recently moved for class certification, making multiple misrepresentations regarding the other actions in support of that motion, and generally having represented the proposed class inadequately.  Gauntlet thrown down.

Over the next several weeks, an escalating flurry of scurrilous language filled the docket.  Arkansas counsel took issue with the Intervenors’ “fixat[ion] on arguments ad hominem against Plaintiffs’ attorneys”, then scolded the Intevenors for their “consistent lack of diligence” in prosecuting their own cases.  Then Wells Fargo–unlike most defendants who, in imPaneled’s experience, prefer to stay above such trial lawyer ugliness–deemed the Intervenor’s proposal “‘half baked’ [sic] at best”, and charged them with “unfairly” accusing Plaintiffs’ counsel of underhanded conduct in which they themselves had engaged.  Harrumph!

Intervenors raised the ante in their reply, accusing Arkansas counsel of “hav[ing] engaged in a pattern and practice of filing ‘me-too’ actions on top of many . . . existing [force-placed insurance] cases”–replete with a chart detailing not just the pattern, but the practice as well.  And Arkansas counsel filed a sur-reply directed strictly at the chart, which they claimed “falsely paint[ed] Plaintiffs’ Counsel as ‘copycats’ so that [they] could undertake a hostile takeover of this case.”

Inadequacy of counsel?  “Consistent lack of diligence”? “[H]alf baked”? “[P]attern and practice” of dubious conduct? “[H]ostile takeover”?  What is this? The comments to a TMZ article? Surely His Honor (Alsup, J.) would exercise some decorum.

Or maybe not.  In a holding for which the Court did not cite any precedent–which by no means diminishes it–the Court certified a class, but “only conditionally upon selection of adequate counsel.”  His Honor deemed Arkansas counsel inadequate based on: its “misrepresentations to the Court,” one of which it found “baffling”; its “lackluster performance in discovery”, during which it “should have moved to compel but did not”; and the Court’s “prior and disappointing experience with several of the applicant firms and attorneys”, which included “a hold-up maneuver unworthy of Rule 23 practice.”

Rather than hand the prize to Intervenors’ counsel, the Court opened the process to the whole world, first via the above-linked notice on the district web site, then via the mass e-mail.  Perhaps a full-page ad in the New York Times is forthcoming, as a week remains until responses are due.

imPaneled cannot complete such a harrowing saga of plaintiffs’ bar infighting without a serious note, in the form of the type of incisive insight for which imPaneled is renowned.  imPaneled often makes light of such frank discussion of the issues raised in this context.  But Judge Alsup’s reaction tends to suggest that in this instance, it was well-justified.  imPaneled thanks His Honor for his bluntness, and for exercising some creativity, and encourages other judges to do likewise.  Litigants and justice will be better served when counsel on both sides of all cases are held accountable for misconduct in no uncertain terms.

Magnum Hunting

Hunting for fees, that is, in securities litigation against alleged fraudster Magnum Hunter Resources, wherein hyper-contested lead counsel motions were filed earlier this week.  Unfortunately, those motions are hyper-contested only by virtue of their number rather than their substance.  No fewer than eight (8; VIII; שםונח) counsel groups filed motions in each of two districts–all eight in the S.D.N.Y., three of whom filed in the S.D. Tex. as well.

Pomerantz Haudek was the busiest of the eight, filing a complaint by itself in Texas, which Saxena White followed with another complaint–filed by the same local counsel.  Pomerantz subsequently dismissed its Texas case, which evidently got Magnum’s attention.  Seeking to litigate on its own turf, and perhaps fearful that Saxena White might follow Pomerantz out of town, Magnum filed a 1404 motion in New York, seeking to consolidate cases pending there with the one remaining in Texas.

The dockets were then relatively quiet until this past Monday, when all heck* broke loose.  Pomerantz–armed with new clients and now aligned with Chimicles & Tikellis–filed lead counsel motions for those clients in both Houston and New York.  A Robbins Geller/Labaton tag team did the same, as did Morgan & Morgan.  The other contestants–Cohen Milstein, Kessler Topaz, Squitieri & Fearon, Finkelstein & Krinsk and Bernstein Liebhard–limited themselves to the blue state court.  And all parties limited themselves to submissions that are so bland that to call them “boilerplate” would be insulting to boilerplates.

So who’s likely to emerge from this with all the spoils?  As is often the case, Robbins Geller and Labaton claim the greatest losses–somewhere in the high six figures.  Cohen Milstein and Morgan are both in the low six figures.  The others all claim five-figure losses, which is a shame–not for those firms, but for imPaneled, as we would like to see nothing more than knockdown, smash-mouth, eight-way verbal sparring.  That is likely not forthcoming.  But there will hopefully be drama sufficient to justify a future post.  Stay tuned.

* – imPaneled is a family blog.

A truly modest proposal

Consistent with our moniker, imPaneled’s last several posts have addressed Panel issues.  But imPaneled’s mission statement requires us to report “[e]verything you need to know about the jockeying for lead counsel positions in MDL proceedings and other complex litigation”  (emphasis added).  Hence this post.

imPaneled previously pressed for reform of the means by which courts select lead counsel in a post entitled “A modest proposal.”  The spirit in which imPaneled made the proposal was in fact “modest” (as imPaneled bows to no one where modesty is concerned), but the scope of the proposal was anything but.  And imPaneled undertook to incite outright revolution in the Panel’s transferee court selection process in its most recent post.  Having failed to effect change–yet–in either instance, imPaneled now aims substantially lower.

Today’s proposal arises from the recent news that Judge Castel (S.D.N.Y.) denied Lowey Dannenberg’s and Lovell Stewart’s motion for appointment as interim lead counsel in what will hopefully be epic antitrust litigation regarding the manipulation of the European bank lending rate known as Euribor.  Hizzoner reasoned that the appointment was unnecessary in that “[t]here currently appear to be no overlapping, duplicative or competing suits that might be consolidated with this action. There appear to be no competing counsel whose roles might complicate the efficient management of this case or result in duplicative attorney work.”

“Kudos to him!,” thought imPaneled, on the premise that Lowey and Lovell were merely seeking to preclude any submissions by potential rivals for the positions, which, as the Court recognized, benefits neither the class nor anyone else.  But then imPaneled noted that it has been a four-month period during which no one else has filed a related case.  Cf.  Adv. Comm. Note, Fed. R. Civ. P. 23(g) (“The primary ground for deferring appointment would be that there is reason to anticipate competing applications to serve as class counsel.”).

And imPaneled recalled having itself filed at least one similar motion relatively early in an MDL proceeding (albeit after a large number of firms had reached agreement).  And imPaneled further recalled having repeatedly seen unscrupulous outsiders (e.g., claims processors, counsel soliciting opt-outs) compromising the rights of absent class members before class certification.

A stern warning letter to such miscreants from “interim class counsel” carries more weight than does such a letter from counsel for the “named plaintiffs” or the “proposed class.”  And when it is defendants who are tampering with absent class members (as they are wont to do in cases involving defendants’ employees), even a court is more likely to give weight to the objections of “interim class counsel.”

So what might Judge Castel and others in his position do instead of denying interim lead counsel motions as “premature” for a lack of competition?  How about appointing the Loweys and Lovells of the world as interim class counsel, explicitly without prejudice to the rights of unnamed others to ask the Court to revisit the issue if circumstances so dictate?  In most cases, circumstances will not so dictate, and everyone involved will live happily ever after.  To that end, it is hereby ORDERED that Lowey and Lovell shall move for reconsideration of Judge Castel’s Order of June 11, 2013 (Dkt. No. 72), citing imPaneled as supplemental and decisive authority.

We say we want a revolution

It’s always a treat when the Panel allows us commoners a peek behind the scenes by discussing how it goes about its centralizing and transferring business.  Their spokesperson is invariably His High and Exalted Honor, Chairman Heyburn, who has gone on the record at least three times in recent–or at least recentish–months.

The publicity blitz was evidently preceded by Judge Heyburn’s “personal interviews” with dozens of attorneys “who practice before the Panel and in MDL dockets.”  That is news to imPaneled, as imPaneled was not among those dozens.  Perhaps the Panel has heard that imPaneled is a mite opinionated and something other than shy about sharing those opinions publicly.  Well, if that’s how they feel, the remainder of this post will not disappoint them.

The Panel has evidently observed that “it seems like there are more plaintiffs who see under certain circumstances that they can benefit from the centralization if they can be named to the lead counsel.”  Do tell!  And “counsels’ own stated reasons for favoring a particular location were sometimes surrogates for their desire for a favored judge or circuit.”  imPaneled commends Judge Heyburn for avoiding words like “all” and “always,” which might have been appropriate.

Counsels’ other beefs were in large part the result of having been saddled with unmotivated transferee judges.  As always, His Honor has recently insisted that a number of sensible factors dictate the Panel’s choice of a transferee judge.  But imPaneled has always suspected that judiciary politics play something of a role–and perhaps a major role–in this context, i.e., senior and well-connected judges have more to say about where cases go than do junior and poorly-connected judges.

Not that there’s anything wrong with that–so long as the transferee judge is willing and able to do justice relatively promptly and efficiently.  But too often–perhaps in cases that are generally unattractive to the judiciary–MDL proceedings land in front of judges who come up short as to justice, promptness and/or efficiency.

One would think that is a problem only for the litigants in those cases, which is a substantial problem in itself.  But as early as December of 2015, it may result in problems for plaintiffs in all cases.  imPaneled hears the clicks of browsers moving to other pages, on the premise that imPaneled has taken leave of its senses.  Bear with us.

imPaneled recently had the pleasure of participating in a public discussion of proposed amendments to the Federal Rules of Civil Procedure, which might substantially narrow the scope of discovery.  See, e.g., Proposed Rule 26 Committee Note (“The scope of discovery is changed in several ways.”).  That change was prompted by the well-organized campaign of those who produce the most discovery–defendants in complex litigation.  In fact, the moderator of the event cited a study reflecting that discovery becomes unmanageable only in a small minority of the most complex cases.

That revelation prompted imPaneled to query Judge Gene Pratter (E.D. Pa.)–who generally favors the changes–to the following effect:  In light of that study, and in light of the fact (based on imPaneled’s own experience) that diligent judges can readily control discovery even in the most complex cases, why is it necessary to rewrite the rules for all cases?  Judge Pratter’s response was most telling.  She said in essence that most judges and lawyers are not willing and able to control discovery in complex cases, and the rules have to be amended for everyone to account for those relative slackers.

Here’s a better idea.  The Panel should transfer cases only to judges who have proven their ability as to both the relevant substantive law and case management, or to unproven judges who have made a credible commitment to prove themselves capable of managing complex litigation.  If no such judge has a related case pending on their docket, the Panel should select someone new to the proceeding.  And if he or she has to move smaller cases to other judges’ dockets to accommodate a complex MDL case, so be it.  But no one should be denied prompt and efficient justice just because the Panel is set in its ways.  And plaintiffs of the world should not be denied discovery just because–as Judge Pratter substantially admits–certain judges and lawyers are not up to doing their jobs properly.

Update: imPaneled erroneously suggested in this post that amendments to the FRCP are coming in December of this year, which is not in fact the case.  But there is a public comment period forthcoming this year.  imPaneled encourages all of its readers to comment publicly.

Trolling for Dollars*

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.

The bar’s best friend . . .

. . . 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.


All the news that’s fit to post

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.

Mea culpa

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.

In re “Groundhog Day” Panel Proceeding – Part II

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 plot deepens

The new year has brought imPaneled a respite from those pesky billable matters and an opportunity to update old news.  Let’s start with the subject of previous posts, MDL 2406, In re Blue Cross Blue Shield Antitrust Litigation.  When we last posted, the Boies Schiller/Hausfeld syndicate had recently filed a case in the M.D. La., where Ball & Scott (one of the “Davids” in this “David and Goliath” saga*) had previously filed a case.

imPaneled had previously reported that counsel associated with Ball & Scott had filed in the M.D. La., but asked the Panel to centralize proceedings in the E.D. La.  imPaneled had not previously reported that Ball & Scott has had (and may continue to have) a wide-ranging and apparently prosperous relationship with Cohen Milstein, the other “Goliath” in this story.  Within days after the BSF/Hausfeld filing, the E.D. La. movants suddenly realized the error of their previous submission, and determined that the N.D. Ala.–where Cohen Milstein stands a better chance of landing a lead counsel position–is the superior forum.

Meanwhile, a flurry of related actions from other districts were brought into the mix.  That may ultimately recast the “David v. Goliath” nature of the lead counsel fight, but for now has resulted only in the development of something of a sideshow.  LifeWatch, the plaintiff in a case pending against the Blues in the E.D. Pa., objected to the Blues designating its case as a “related action,” which precipitated additional pre-hearing submissions by the Blues.

The Panel somewhat predictably centralized all of the relatively early-filed cases in the N.D. Ala., where there has been no further docket activity directed to the lead counsel issue.  The Panel subsequently issued a conditional transfer order sending the LifeWatch case there as well, which LifeWatch has opposed.  There is surely more to come on all fronts.  imPaneled will be all over it when it does.

* – Counsel who are in a position to know confirmed imPaneled’s sense that the Panel proceeding was initiated by “David” small plaintiffs’ firms seeking to take a piece of the action from the “Goliath” big firms (as if there were ever any doubt as to imPaneled’s instincts in this context).

  • 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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