Boies Schiller lands another punch in Blue Cross SmackDown

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.



In re “Groundhog Day” Panel 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.


This is a vitriol-free zone

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.

I’m shocked, SHOCKED . . .

. . . 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.

Davids v. Goliaths

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.


The terrorists have won

“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.

A case for our times

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.

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 “yes” . . .

. . . 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.

We’re back . . .

. . . 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.

People in other districts do in fact know something about IT.

Based on the mass exodus of high-priced talent from the courtroom following its oral argument at last month’s Panel hearing, imPaneled can safely say that In re Carrier IQ, Inc., Consumer Privacy Litig., MDL 2330, was the main event at that hearing.  Plaintiffs favoring the United States District Court for All IT-Related MDLs (“D.A.I.M.,” a/k/a the N.D. Cal.) opened both the briefing and oral argument, the latter by Tony Shapiro (pronounced Sha-PEER-o in his native NYC) of Hagens Berman.  The usual flood of plaintiff written submissions favoring various other districts followed the initial one, but only three counsel–arguing for the C.D. Cal., the N.D. Tex. and the N.D. Ill.–spoke at the hearing.  Software developer Carrier IQ and its cell phone manufacturer co-defendants predictably weighed in for the D.A.I.M.

To the surprise of no one, that is where it went.  The only surprise–at least to imPaneled–was the Panel’s assigning the case to Judge Chen, as Judge Davila’s name arose repeatedly at the hearing.  Panelist Judge Breyer (also of the D.A.I.M.) was party to much of the speculation at the hearing as to which N.D. Cal. judge might get the proceeding, then “took no part in the decision of th[e] matter.”  imPaneled has not undertaken to complete the massive pointing and clicking effort that would be necessary to get the back story as to any of that, but welcomes further insight from any of the millions who are reading this post.

Pfizer Wins Zoloft Battle, Plaintiffs Win War

imPaneled has long bemoaned the relative brevity of Panel opinions in recent years.  Yes, Panel opinions tend to ostensibly turn on a small set of factors, which have not changed in ages.  But cookie-cutter opinions provide little grist for imPaneled, and providing grist for imPaneled should be a higher priority for the Panel.

Fortunately, certain plaintiffs in In re Zoloft (Sertraline Hydrochloride) Products Liability Litigation, MDL 2342, left the Panel no choice but to explore new territory when they repeatedly insisted that the Panel should deny Pfizer’s motion for centralization because of its allegedly improper removal of several cases on the eve of its filing the motion.  The Panel dismissed that argument:

 [T]he Panel has long held that jurisdictional objections do not overcome the efficiencies that can be realized by centralized proceedings.  The Panel also has held that centralization “does not require a complete identity or even a majority of common factual issues as a prerequisite to centralization”; nor does it “require a complete identity of parties.”

Order, at 2 (citations omitted).

So Pfizer wins.  Right?  Wrong!  Pfizer sought centralization anywhere but the Eastern District of Pennsylvania, which has in the past remanded similar cases.  The rebellious plaintiffs had accused Pfizer of seeking to evade those precedents.  If that claim is in fact true–and imPaneled would never accuse a Panel litigant of doing something so underhanded–Pfizer’s effort failed.  But Pfizer did succeed in establishing new Panel precedent, so they have that going for them.

The San Diego Zoo . . .

. . . had no more teeth bared as of last Thursday than did the local federal courthouse, where the Panel held its most recent round of oral arguments.  Before imPaneled delves too deeply into any particular proceeding, a few highlights will serve as an appetizer:

  • Without explanation, the clerk’s office  asked counsel to sign in at 8:00–90 minutes before the initial argument–rather than 8:30, which has been the recent standard.  Conspiracy theorists posit that the move was intended to limit the widespread evening socializing that has preceded the last several hearings, thanks in part to our good friends in the claims administration business.  (Note to those friends: Don’t let them push you around.  Turn it up at future hearings.)
  • Judge Vratil ably presided in Judge Heyburn’s absence.  Coincidentally or not, their Honors’ questioning was more pointed than usual.
  • As to that pointed questioning, in two instances–to be identified in future posts–the Panel substantially accused defendants arguing against consolidation of groundlessly pressing a “divide and conquer” strategy.  imPaneled welcomes such plain speaking to what others might generally perceive to be bland arguments.  In an ideal world, these hearings would be so dramatic and entertaining they would have to be held in sports arenas rather than courtrooms.

More to come soon . . . or at least soonish.


Will the Panel be disapproving removing followed by moving?

As fascinating as they are, even imPaneled has to admit that most Panel proceedings proceed in a similar fashion, and that there is minimal variety in either the substance or the style of the written submissions.  MDL 2342–In re: Zoloft (Sertraline Hydrochloride) Products Liability Litigation–is decidedly an exception to the rule.  Defendant Pfizer started the ball rolling blandly enough, seeking the consolidation of 59 pending cases on its home turf in New York City (albeit with three alternative districts, including two in the anti-NYC, Mississippi).  Several plaintiffs followed with the usual requests for alternative forums (E.D. Pa., S.D. Ill., E.D. La.), but were generally–and strangely–silent as to the merits of consolidation generally.

That silence was shattered–nay, disintegrated–by a series of last-minute filings by plaintiffs who excoriated Pfizer for procedural gamesmanship above and beyond the usual Panel shenanigans.  Those plaintiffs claim that Pfizer “wrongfully removed” over 40 of the 59 cases to the Eastern District of Pennsylvania the day it filed its Panel motion, and demanded that those cases be excluded from the proceeding.  They further accused Pfizer of seeking to “evade unfavorable precedent” by requesting consolidation anywhere but that district, as that district’s judges have twice remanded cases naming a Pennsylvania-based defendant common to the Pennsylvania cases.  Most unusually, the plaintiffs made those charges in four substantially identical briefs filed over the course of several days, rather than in a single brief–just to make sure the Panel gets the point.

All of this is apparently another chapter in a long-running battle between the plaintiffs’ bar and the defense bar over the latter’s claim that the Philadelphia Common Pleas Court has become a plaintiff-friendly magnet for claims bearing no relation to the city.  imPaneled takes no side in the battle, but appreciates any opportunity to see “friendly” and “Philadelphia” in the same sentence.

Head-bashing Panel action

We commence imPaneled’s resurrection with news of a proceeding that has actually been covered by the mainstream mediaIn re National Football League Players’ Concussion Injury Litigation, a/k/a MDL 2323.  But what is of interest to imPaneled as to MDL 2323 is decidedly not of interest to writers lacking for an “Esq.” after their names.  To wit, Paul Weiss’s heaviest of heavyweights (Brad Karp and Ted Wells) initiated the Panel proceeding by moving for consolidation in the Cradle of Liberty to File Class Actions, the Eastern District of Pennsylvania, under the decidedly uninformative caption In re National Football League Litigation.  Someone in Washington must have objected, as the next filing—also by Paul Weiss—added the unpleasant “Players’ Concussion Injury” to the name.  (On a related note, humor regarding other Panel defendants’ efforts to sanitize Panel captions almost caused a laugh riot at the Miami Panel hearing in late January.)

In any event, the subsequent battle fell other than along the usual lines, as most of the plaintiffs supported the NFL submission.  But defendant helmet-maker Riddell asked the Panel to abstain, on the premise that three California cases naming only Riddell lacked sufficient common questions of fact.  A relative handful of plaintiffs thereafter pressed for the District of New Jersey.  Others—including Fulton “Kaptain Krazy” Kuykendallpressed the Northern District of Georgia as an alternative.  But the Panel hearing was a veritable Philadelphia-centric love-fest, the only drama being the disposition of the Riddell cases.  Less than a week later, the Panel wisely left that to E.D. Pa. Judge Anita Brody, to whom all the cases were transferred.  (And less than a week after that, the NFL undertook to influence the jury pool by running a slick Super Bowl ad touting its long-standing commitment to player safety.)

Nothing has been made public about who will coach the plaintiffs’ team, so to speak.  But Hausfeld LLP, which is representing ex-players in unrelated litigation, is in the mix and not known for agreeing to take a back seat to anyone.  Stay tuned.

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.

The repercussions of the Milberg Weiss saga . . .

. . . will be with us forever.  And, no, we are not referencing their using tainted plaintiffs to sue securities fraudsters who might have otherwise been sued (perhaps more successfully) by others.  At imPaneled, we’re concerned only with the saga that resulted in Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), the only instance in which the Supreme Court has considered 28 U.S.C. § 1407 in any depth.  Strategic issues arising from Lexecon were the subject of an interesting post earlier this week on Above the Law, of all places. ATL, as even its infrequent visitors likely sense, generally  features what passes for gossip in the legal community, punctuated by commentary worthy of only the most debauched fraternity brothers–not that there’s anything wrong with that.

As for today’s news, imPaneled is now on the scene of tomorrow’s Panel hearing in Savannah, and expecting to post some semblance of a preview before then, amidst whatever Panel-centric revelry transpires tonight. The sponsors of that revelry were at their best in September in Philadelphia. We’ll see if they brought their “A” game south with them.

Yes, imPaneled is alive and well

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.

Co-co-co-leads appointed in MDL 2275

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.

Back to square one

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.

  • 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.

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