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.

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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.

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