Silence is golden

Everyone at imPaneled apologizes to the many of you who have been lying awake at night wondering when you might see another post here. We feel your  pain, as reporting the ups, downs and wacky antics of the world of class actions and complex litigation is always more fun than anything for which we might actually get paid. But that pesky need to get paid is perpetually the bane of imPaneled’s existence.

As to that, the boss here is now getting paid directly by clients (details on the right), rather than by other lawyers. That’s generally a good thing. But it required time to put in place–which explains the recent silence–and will require that imPaneled stay friendly with the rest of the world if it is to succeed. We at imPaneled have been known to be a mite opinionated, online and offline, and will not have it any other way. That, however, is not conducive to staying friendly with the rest of the world.

So imPaneled will be lying low for a bit longer. If all goes well, it won’t be long until we’re swimming in so much cash that we can afford to offend anyone and everyone who deserves it.  On that note, here’s one for the road: A curse on anyone who files a frivolous lawsuit. As we have said elsewhere, they waste our courts’ resources, discredit the plaintiffs’ bar, and provoke further restrictions on legitimate cases.

That’s it for now.  If you want more of the same sooner rather than later, follow the advice of the legendary Soupy Sales: Put those “funny green pieces of paper with pictures of U.S. Presidents . . . in an envelope and mail them to me.”  Barring that, we’ll be content with just your good wishes.

What’s Centralized in Vegas Stays in Vegas

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.

Now that’s more like it

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.

The answer is decidedly “yes” . . .

. . . at least as to the question raised in today’s earlier post, i.e., would the sponsors of Panel-centric revelry bring their “A” game to Savannah.  Much of that revelry took place at the Olde Pink House–where some or all of the seven Panelists themselves reveled with their guests.  Their Honors had a private room, guarded by three apparent Secret Servicers, where they evidently had a grand time fraternizing among their equals.  Those of us who occupy bars rather than benches could only imagine the wisdom they shared.

In any event, it’s now only about nine hours until they share some of that wisdom with the rest of us.   The odds that a copious preview of the hearing will appear on this page before then are somewhat less than they were seven hours ago.  But the odds that a retrospective preview will be combined with a recap tomorrow and/or the following day are as good as ever.

Bells and whistles

imPaneled now includes one or more tags for each post (with the ironic exception of this post).  Every MDL proceeding and every firm will have its own tag.  More tags will appear in the future, and more news will appear in the immediate future.

  • 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.

    You can contact Bart here or connect with him here.

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    The information on this web site is not legal advice, and neither the posts nor the comments reflect the opinions of Berger & Montague, P.C., or any of its clients. If you communicate with Berger & Montague through this site or otherwise as to a matter in which the firm does not represent you, your communication may not be treated as privileged or confidential.