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.

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 ‘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.

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.

. . . 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.

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.

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.

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 parties to MDL 2418, In re Plavix Marketing, Sales Practices and Products Liability Litigation (No. II), have something of a knack for repeating earlier events.  The defendant pharmacologists may well benefit from that.  The scads of plaintiffs aligned against them?  Well, let’s just say they certainly admire one another’s written work product, and leave it at that.

Our story begins with MDL 2300, In re Plavix Products Liability Litigation, in which plaintiffs’ counsel represented to the Panel that they could coordinate their discovery efforts in the relatively few cases then pending, absent centralization.  Their Honors denied defendants’ 1407 motion, based in part on the paucity of cases.

Much to defendants’ chagrin, the cases multiplied and the cooperation deteriorated.  In recent months, one plaintiffs’ attorney announced that he would not work with the others, and pressed for separate discovery limited to his case.  When he filed a motion to compel with a return date a week later, defendants reached their breaking point, and within days initiated a new Panel proceeding.

Whatever failure of cooperation afflicted plaintiffs’ discovery efforts did not afflict their response to defendants’ renewed motion.  Over the course of a single day, the private plaintiffs filed six briefs:

• Three of them opposed centralization in any court.  Two of those briefs were virtually identical.  A third was substantially identical in substance, but its authors managed to rearrange some of the words in the other two.
• The other three opposed centralization, but proposed alternative transferee courts (the S.D. Ill., the S.D. W. Va. and the N.D. Cal.) in the event that the Panel disagreed.  Those briefs would have been identical, but the authors mixed it up (relatively speaking) by putting the sections in differing orders.  And one added some introductory language copied verbatim from two of the other group’s briefs.

The Mississippi Attorney General’s office filed a brief opposing centralization that was relatively short, but at least original in its entirety.

All seven plaintiffs’ briefs did share one thing in common.  Despite being rife with string citations, none of them undertook to distinguish the cases defendants cited in which the Panel granted a 1407 motion after having previously denied one in the same proceeding.  But two of the plaintiffs’ briefs did cite one of defendants’ cases for an entirely unrelated proposition.  imPaneled was not amused upon  seeing that.

Unfortunately, MDL 2418 was docketed too late to be heard in Dallas later this month.  imPaneled anxiously awaits the oral argument excitement that will be forthcoming in late January.

. . . to see class action plaintiffs’ counsel accused of engaging in procedural gamesmanship to seize control of litigation against a defendant with deep pockets.  Alas, if Gibson Dunn has told the Panel the entire sordid saga of litigation against its client Frito-Lay, that is exactly what has happened.

By way of background, the Panel’s dockets have recently reflected what at first glance appeared to be a veritable crime spree by Frito-Lay.  On consecutive business days, plaintiffs initiated 1407 proceedings in MDL 2413, now captioned In re Frito-Lay Bean Dip Marketing and Sales Practices Litigation, and MDL 2414, In re Frito-Lay Tostitos & Sun Chips Marketing & Sales Practices Litigation.

Frito-Lay recently shed some light on the mystery, detailing how litigation as to all of its delicious and nutritious snack items has been proceeding apace in the E.D.N.Y., and seeking to centralize both MDLs there.  But, says its counsel, a bevy of plaintiffs’ firms, led by San Francisco’s Law Offices of Howard W. Rubinstein, P.A., have “file[d] multiple duplicative lawsuits [in other districts] in order to obtain a stake in earlier-filed litigation.”  The details, which are consolidated on the penultimate page of Frito-Lay’s submission, are not pretty.  Says Gibson Dunn: “All of this has to stop. The judicial system is not designed to work this way.”

Those are fightin’ words, at least by Panel standards.  Fortunately, plaintiffs in both MDLs have an opportunity to defend their honor in reply briefs.  imPaneled looks forward to that, as well as a lively discussion in Dallas next month.

“That’s a mite alarmist,” I hear you say.  Well, the terrorists are responsible for the S.D.N.Y. rule precluding the use of laptops in the courthouse.   As a result, imPaneled’s notes from yesterday’s Panel hearing are on dead trees–at another location.  As a result, imPaneled is now forced to report on that Panel hearing without having notes to ensure the maintenance of its high standards of journalistic integrity.  Ergo, the terrorists have won.

Fortunately, yesterday’s Panel hearing, like most, included moments that are seared in imPaneled’s memory:

• The oral argument in MDL 2388 (In re Mortgage Lender Force-Placed Insurance Litigation) was a spirited discussion of issues similar to those raised in MDL 2394 (In re Real Estate Transfer Tax Litigation), i.e., is centralization appropriate for cases sharing common fact patterns, but not necessarily common facts?  A strict reading of imPaneled’s favorite statute would compel the Panel to say “no.” But see MDL 1334 (In re Managed Care Litigation).  Movants in MDL 2388 did in fact ask the Panel to see In re Managed Care Litigation.  imPaneled leaves to the litigants whether that MDL served the purposes of the statute, and anxiously awaits the resolution of MDL 2388.

• Counsel for the defendants in MDL 2391 (In re Biomet M2a Magnum Hip Implant Products Liability Litigation) opposed centralization on the premise that centralization encourages plaintiffs to file additional cases–all of which lack for merit.  The Panel rather cleverly responded with two questions: Does centralization transform frivolous cases into meritorious cases?  And is a transferee court any less capable of dismissing frivolous cases that a transferor court?  Even before counsel was forced to answer those questions in the negative, it struck imPaneled that Biomet is not offended that centralization makes cases more meritorious nearly so much as it is offended that centralization makes cases more affordable for plaintiffs.  imPaneled congratulates the Panel for making that point without embarrassing Biomet’s counsel any more than it did, and anticipates that the right decision will be forthcoming.

• Mark Lanier was responsible for the high comic point of the day, when he pressed for the transfer of MDL 2391 to Houston based in part on its boasting “the best minor league baseball team” in the nation.  Okay, so that was funny only to imPaneled and the other baseball fans in attendance.  You want great comedy at Panel hearings, get this guy appointed to the Panel.

Four oral arguments–all of which will happen relatively early in the day–will be the “main attractions” (as a renowned scribe referred to them) at tomorrow’s Panelpalooza in the S.D.N.Y.  But three of those qualify primarily due to the number of parties involved.  MDL 2394-captioned In re Real Estate Transfer Tax Litigation–boasts issues above and beyond the usual “where are these cases going?” raised by standard Panel fare, in addition to scores of parties and counsel.

MDL 2394 is a sad reflection on our times in that it is a product of Fannie Mae’s and Freddie Mac’s taking title to scads of foreclosed homes nationwide.  Evidently, those government-sponsored enterprises (“GSEs”) have claimed exemption from statutes in 35 states that normally require the payment of transfer taxes upon the sale of real property.  Much litigation has resulted therefrom.

Plaintiff Genesee County (Mich.) initiated the Panel action, citing common factual issues in cases which, on their faces, arguably entail only a common legal issue.  See imPaneled’s favorite statute (“When civil actions involving one or more common questions of fact are pending in different districts . . .”) (emphasis added).  The GSEs predictably raised that in opposing centralization, as did several defendants, big and small, not common to the underlying cases.  And, in yet another  unusual development, a small number of plaintiffs sided with the defendants in opposing centralization.

imPaneled looks forward to compelling oral arguments as to MDL 2394, as well as all of the other action tomorrow.  Stay tuned for coverage–maybe not in-depth coverage, but coverage nonetheless.