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.