. . . 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.