. . . 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.
All posts in category Lead counsel motions
Posted by Bart Cohen on 07/07/2014
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.
Posted by Bart Cohen on 11/15/2013
. . . 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.
Posted by Bart Cohen on 07/12/2013
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.
Posted by Bart Cohen on 06/26/2013
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.
Posted by Bart Cohen on 06/19/2013
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).
Posted by Bart Cohen on 01/14/2013
imPaneled has been following the ongoing battle involving big firms and small ones for control of the cases that, for now at least, comprise MDL 2406, In re Blue Cross Blue Shield Antitrust Litigation. So as to refresh your recollections (and spare you the burden of clicking on the link above), a Boies Schiller/Hausfeld tag team was battling Cohen Milstein for control of several cases pending in the N.D. Ala. when a cohort of smaller firms petitioned the Panel to centralize those cases with three pending in other Southern red states. See supra, Davids v. Goliaths.
One of the Davids, Ball & Scott, filed a case in the M.D. La., but moved for centralization in the E.D. La. Now Boies Schiller and Hausfeld have filed a case in the M.D. La. They have notified the Panel to that effect, but otherwise not made their intentions clear. Nothing before the Panel seeks centralization there–yet. There are still two weeks left before the oral argument for Boies Schiller to spring a November surprise.
Posted by Bart Cohen on 11/15/2012
Despite having recently taken a break from docket-scouring, imPaneled found few fireworks in its backlog of recent Panel and lead counsel submissions. We were most disappointed that the movant’s reply brief in MDL 2413, In re Frito-Lay Bean Dip Marketing and Sales Practices Litigation, scrupulously ignored Frito-Lay’s detailed claims as to their procedural gamesmanship. Hopefully, Their Honors on the Panel will seek a substantive response when movant’s counsel appears before them in Dallas.
As to the lead counsel front, unless imPaneled’s detective work is not what it used to be, the only meaningful dispute to develop in recent weeks is one between Kaplan Fox and Horwitz, Horwitz & Paradis in a remnant of the proceeding formerly known as MDL 2374, In re Honey Production Marketing and Sales Practices Litigation.* Evidently, the Paradis firm enlisted a plaintiff, who took his business to Kaplan Fox within a matter of months thereafter. Before Kaplan Fox entered its appearance, the Paradis firm filed a related case with another plaintiff. Kaplan Fox claims that the Paradis firm’s subsequent efforts to assume control of the litigation violated its ethical obligations to its former client and render it unfit to represent the class. The Paradis firm disagrees and denies any wrongdoing. Judge Chen of the N.D. Cal. will hopefully resolve the dispute in prolific fashion.
Now that the public will be spared electoral vitriol for another four years, perhaps both sides of the class action bar could fill the void with the kind of vitriol that appears on imPaneled’s pages. imPaneled wants to see fire and brimstone rising from the dockets it searches next week.
* – The Panel denied the Paradis firm’s motion to consolidate several cases based on their relative paucity of common facts.
Posted by Bart Cohen on 11/09/2012
No, that does not reference litigation involving underfunded little guys represented by small firms going up against corporate behemoths represented by white-shoe counsel. That would be trite. In MDL 2406, In re Blue Cross Blue Shield Antitrust Litigation, it references the battle between small plaintiffs’ firms and big plaintiffs’ firms for control of the case. And defendants’ counsel are surely watching (and running the meter) with great amusement as it develops.
Let’s recap. imPaneled reported last month that class action titans Boies Schiller and Cohen Milstein were contesting leadership in seven antitrust actions against Blue Cross entities consolidated in the N.D. Ala. Later that week, plaintiffs represented by Montgomery firm Davis & Taliaferro (“D & T”) petitioned the Panel to centralize two arguably similar cases from other districts in that court–one that Boies Schiller had filed in the W.D.N.C., and one that Ball & Scott had filed in the W.D. Tenn.
Evidently unbeknownst to D & T, Ball & Scott also had a case pending against the Blues in the M.D. La. Sensing an opportunity to grab a seat at a larger table, Ball & Scott’s local counsel told the Panel that centralization is appropriate, but pressed the E.D. La., where, by virtue of an astonishing coincidence, another firm had filed a complaint that very day.
Boies Schiller and Cohen Milstein predictably opposed the disruption of their carefully laid plans (though BSF threw in a plug for the W.D.N.C., so that it might maintain control of the proceedings even if the Panel acts). As for the Blues? Well, most Panel observers know that, all things being equal, when centralization is in doubt (as it is here), most defendants oppose it–obviously for reasons of justice and efficiency, but perhaps also because it enables underfunded plaintiffs and their firms to pool their resources for the common benefit.
But all is not equal in this case. Defendants are faced with two possibilities as to the N.D. Ala. actions: (1) plaintiffs led by united counsel, with high-powered firms in the lead; or (2) bickering among plaintiffs’ counsel over leadership, followed by some degree of additional bickering over the course of the proceeding if firms from more than one group are given co-lead positions. Option (2), of course, falls into each of the two broad categories that form the pillars of defense strategy: Obstruction and Delay (cue singing angels).
That’s a long way of saying the Blues favor centralization. The ones represented by Kirkland & Ellis were the most verbose about it. There will likely be little further excitement before the Dallas Panelpalooza in late November. But imPaneled will be all over it if there is.
Posted by Bart Cohen on 10/09/2012
There was nothing of substance on the Panel dockets as of early this afternoon Panel time. But Judge Buchwald of the S.D.N.Y. resolved a most nasty brawl between Gainey & McKenna and Faruqi & Faruqi in the China-Biotics securities case. G & M opened the bidding blandly enough, and Faruqi responded with more pages, but no more vitriol.*
Then came the fireworks. Faruqi’s opposition to G & M’s motion accused the latter of “expressly contemplat[ing] lawyer-driven litigation,” and questioned whether G & M had the resources and experience for the job. G & M shot back by accusing Faruqi of having “plagiarized” the relevant facts in drafting its solicitation notice, and cited at length an article entitled When Merger Suits Enrich Only Lawyers–which references Faruqi, and is otherwise so disparaging of the securities class action bar that decorum prohibits imPaneled from linking to it here.
Anyhoo, Judge Buchwald substantially (and predictably) avoided the fray in ruling for G & M, defending its experience and charging Faruqi with “resort[ing] to speculation” as to that and related matters. Good luck to G & M in prosecuting the case, and thanks to everyone involved for the most entertaining submissions.
* – Faruqi’s initial brief is notable only for its touting its status as “a minority-owned and women-owned business,” citing Judge Baer’s infamous order in the Gildan Activewear case. Two years after that order, imPaneled still cannot divine how any class member would benefit from its widespread adoption. Judge Buchwald–whose chambers would be a woman-owned business, if they were, you know, a “business”–declined to comment.
Posted by Bart Cohen on 09/07/2012
. . . to the question imPaneled posed to its readers yesterday, i.e., “is imPaneled a blog of its word?” The “word” was that there would be a post today. Now there’s a post today.
As imPaneled is staffed entirely by attorneys, it crossed our minds that we might add nothing more and still celebrate having posted. But implicit in yesterday’s promise was something of a representation that today’s post would actually include substance. And the complex litigation community bounced back from a lackluster week to give us real substance yesterday. To wit:
- Boies Schiller and Cohen Milstein are contesting leadership in the Blue Cross antitrust action in the N.D. Ala. Boies Schiller shrewdly added two local firms to its proposal, and further offered a generous helping of lodestar from their friends at Hausfeld.
- Four firms–Abraham Fruchter, Bernstein Liebhard, Robbins Geller and the Rosen Law Firm–gave notice of their intention to seek lead status in the Lone Pine Resources case pending in the S.D.N.Y.
- Fannie Mae previewed what is likely to be a bruising battle over whether the Panel should transfer and consolidate the many cases comprising MDL 2388, the Mortgage Lender Force-Placed Insurance Litigation.
More to come tomorrow, and to all the complex litigators out there–keep up both the production and the conflict.
Posted by Bart Cohen on 09/05/2012
. . . and hopefully new and improved. imPaneled has spent much of its hiatus mastering the search algorithms and other data manipulation necessary to compile and process the huge amounts of information that will hopefully make imPaneled your regular destination for Panel and lead counsel news. The idea is that posts will be coming every day (or something close to that) going forward. We’ll see.
Anyway, last week’s filings predictably brought little in the way of substance, as complex litigators joined the real world in vacating their offices. The Panel was flooded with notices identifying who is most likely to join us in NYC on September 20, where the main attractions will be the Mortgage Lender Force-Placed Insurance Litigation (MDL 2388), the Facebook IPO Securities Litigation (MDL 2389), the Uponor Plumbing Fittings Products Liability Litigation (MDL 2393), and the Real Estate Transfer Tax Litigation (MDL 2394).
Plaintiffs in the Nexium Products Liability Litigation (MDL 2404) moved to be included in the fun in NYC–purely in the interests of justice, of course–despite having filed the initial motion in that proceeding just last week. The Panel took all of one business day to deny that request earlier today.
Most of the lead counsel activity in the district courts last week was uncontested (i.e., boring). The sole apparent exception is the General Maritime securities litigation in the S.D.N.Y., where Rigrodsky & Long is apparently duking it out with Wolf Haldenstein for all the spoils. There were also submissions in the massive Peregrine proceeding in the N.D. Ill. But imPaneled will need a few days and perhaps another laptop to make sense of that one.
imPaneled has promised some of its biggest fans there will be another post tomorrow. Tune in to see if imPaneled is a blog of its word.
Posted by Bart Cohen on 09/04/2012
Please pardon imPaneled’s apparent moribundity in recent weeks. The rush to get online for the last Panel hearing did not allow for a plan to do research and posts when those pesky billable matters get busy. Fortunately, the pendency of another Panel hearing has resulted in such a plan, and imPaneled will never again lapse into a coma of similar duration.
Before we get to next week’s proceedings in the “Hostess City of the South” (which is not so nicknamed due to any abundance of Twinkies), an epilogue of sorts for September’s fun is in order. Let’s start with MDL 2274, the CitiMortgage HAMP Contract proceedings, the background of which is here. The Panel sent all of the actions to the Central District of California, citing the pendency of “[f]our first-filed actions” there, and Citi’s designation of the district as its consolation prize. Judge Fischer, anticipating a leadership dispute, laid out the criteria that would guide his decision, which vaguely parallel those in Rule 23(g)(1)(A): “(1) willingness and ability to commit to a time-consuming process; (2) ability to work cooperatively with others; (3) professional experience in this type of litigation; and (4) access to sufficient resources to advance the litigation in a timely manner.” Alas, no such drama was forthcoming. The sole lead counsel motion sought co-lead positions for Milberg (representing the West Coast plaintiffs) and Roddy Klein & Ryan (previously in the East Coast contingent). Counsel should be lauded for their cooperation—but not by imPaneled. A dispute would have been more interesting.
The Panel’s disposition of MDL 2291, the Wesson Oil Marketing and Sales Practices proceedings, was about as compelling as the non-action that preceded it. To the surprise of no one, that went to Judge Morrow in the Central District of California. Then the action started. The Panel’s order required the transfer of only one case, the Scarpelli action, from New Jersey to the C.D. Cal. Judge Morrow consolidated that case with the five cases already pending there, and ordered the parties to submit lead counsel papers. Wolf Haldenstein and Milberg, who had spoken for the California plaintiffs from the outset, moved for their appointment as co-leads. The New Jersey plaintiffs sought the appointment of Bursor & Fisher as a third co-lead. But two weeks later—before resolving the motions—Her Honor determined that her consolidation of the Scarpelli action with the others had been “in error,” for reasons that appear nowhere in any of the dockets. She subsequently granted the Wolf/Milberg motion in the consolidated cases. The Scarpelli docket has since been idle. If anyone has any insights as to this odd turn of events, feel free to forward them.
Finally, the recent record in MDL 2290, the JPMorgan Chase Mortgage Modification Litigation, has been light in both volume and intrigue. The Panel hearing proved telling, as the Panel transferred all of the pending cases to the District of Massachusetts, based primarily on the pendency of the first-filed action there. Defendants’ apocalyptic vision as to what would have otherwise befallen our federal courts thus will not come to pass. Plaintiffs’ counsel played nice as to lead positions, agreeing to co-leadership for Levin Fishbein, Keller Rohrback (who had both filed in and moved for California), Roddy Klein & Ryan (who signed onto the others’ motion for California despite filing first in Massachusetts) and Cuneo Gilbert (who filed “me too” papers supporting California after filing their case in New Jersey).
More to come in coming days as we close the book (for now) on the other September arguments, tackle more recent news, and preview next week’s Slugfest in Savannah.
Posted by Bart Cohen on 11/23/2011
To the surprise of no one, the Panel assigned to Judge Scheindlin the procedural morass that is MDL 2275, In Re: Gerova Financial Group, Ltd., Securities Litigation. The Rosen Law Firm won the race to the courthouse, filing state and federal claims in the E.D.N.Y. on behalf of a class of private investors subsequently deemed the “Stillwater Investors.” Kaplan Fox and Murray Frank later filed only state claims for the same class in the S.D.N.Y. Much motion practice followed, resulting in the appointment of Kaplan Fox and Murray Frank as co-leads in the S.D.N.Y. only, and as to the state claims only.
Meanwhile, Pomrerantz Haudek filed the first complaint on behalf of “Open Market Investors” in the S.D.N.Y., followed by Harwood Feffer and Spector Roseman (the latter on behalf of a “Warrant Subclass”). The Rosen Law Firm moved for control of all the cases, while Pomerantz Haudek (then joined by Wohl & Fruchter) and others pressed for the maintenance of separate leads for separate groups. After Harwood Feffer and Spector Roseman backed off, Judge Scheindlin appointed Pomerantz Haudek and Wohl & Fruchter as co-leads for the Open Market Investors. Kaplan Fox and Murray Frank remain co-leads for the Stillwater Investors as to their state claims. All involved expect The Rosen Law Firm to be appointed lead counsel for the Stillwater Investors only as to their federal claims.
Got all that? I didn’t, until Lee Albert of Murray Frank graciously clarified it for me. Let’s hope Her Honor is able to coordinate and consolidate all of this for the convenience of the parties and witnesses and promote the just and efficient conduct of all of the actions.
Posted by Bart Cohen on 10/11/2011
Last week added a new chapter to the saga of Michael Warner, whose counsel at Robbins Geller filed the initial complaint in Warner v. Perrigo Co., No. 09-cv-02255 (S.D.N.Y.) (Griesa, J.). Glancy Binkow and Pomerantz Haudek in short order added to the docket institutional investors who had purchased their shares on the Tel Aviv exchange. Robbins Geller withdrew its lead counsel motion, and stipulated to an order appointing the other firms as co-lead counsel.
While defendants’ initial 12(b)(6) motion was pending, the Supreme Court issued its opinion in Morrison. After defendants failed to alert the Court as to that development, the Court issued an opinion that failed to account for it. Defendants filed another 12(b)(6) motion that relied primarily on Morrison. Seeing the writing on the wall, Glancy Binkow and Pomerantz Haudek moved to add a domestic plaintiff, and Robbins Geller renewed its motion as to Mr. Warner. Late last week, Judge Griesa dismissed the claims of the foreign lead plaintiffs, allowed the new domestic plaintiff to intervene, and deferred his appointment of a new lead plaintiff. The order is here. The docket is here. More news will surely follow.
Posted by Bart Cohen on 10/06/2011
Yes, the recent lead counsel news is heavy on securities. When the rest of the class action bar inevitably resumes its infighting, imPaneled will reflect that. In the meantime, more securities news. Berman DeValerio landed the opening salvo in City of Brockton Retirement System v. Avon Products, Inc., No. 1:11-cv-04665 (S.D.N.Y.) (Gardephe, J.). Wolf Popper and Motley Rice followed suit, the latter with the largest financial interest–by far. Late last week, the court entered a stipulated order appointing Motley Rice as lead counsel, the others to the Executive Committee. The docket is here.
Posted by Bart Cohen on 10/06/2011
Two weeks ago, Judge Scheindlin of the S.D.N.Y. entered Kessler Topaz’s proposed order appointing that firm as lead counsel in In re: Longtop Financial Technologies Limited Securities Litigation. Earlier today, she entered an opinion explaining herself at some length. Three of the other five contenders–represented by Berman DeValerio, Robbins Geller and Kaplan Fox–earlier effectively conceded defeat based on their clients’ relatively small financial interests in the case. Another contender, represented by Curtis Trinko and Saxena White, withdrew its motion and threw its support to Kessler Topaz. The Rosen Law Firm and Wohl & Fruchter fought to the bitter end on behalf of their common clients. Judge Scheindlin’s opinion is here. The docket is here.
Posted by Bart Cohen on 10/04/2011
Magistrate Judge Pollak of the E.D.N.Y. in late August issued a most thoughtful opinion in Bensley v. Falconstor Software, Inc., appointing “William Burns as Lead Plaintiff and the Rosen Law Firm as Class Counsel,” and denying Robbins Geller’s motion to appoint its institutional client. More recently, Judge Korman “rejected the objections filed by” Robbins Geller. M.J. Pollak’s opinion is here. The docket is here.
Posted by Bart Cohen on 10/04/2011
We’re playing catch-up as to all the lead counsel news that has accumulated in recent weeks, so there’s plenty to report. We’ll start with the Southern District of Florida, where three competing motions are pending in a securities action against Jiangbo Pharmaceuticals. Faruqi & Faruqi, the Rosen Law Firm and a Milberg/Wohl & Fruchter consortium are the respective protagonists. The docket is here.
Posted by Bart Cohen on 10/04/2011