Know when to hold ’em . . .

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.

Hot off the press

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.

David bests Goliath

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.

Ready to report on the rumbles

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.

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.

Panel hearing recap

As usual, the Panel heard a great deal, but ruled as to none of it.  To the extent that there might be “highlights” of any Panel hearing, these might qualify:

MDL 2274 (CitiMortgage):  Movant/defendant CitiMortgage was hard-pressed to deny that the action pending before Judge William Young in the District of Massachusetts is relatively advanced.  The East Coast plaintiffs, who had previously suggested New York as an equal alternative to Massachusetts, seized on that and pressed Massachusetts, adding that Judge Young is willing to take the cases.  Other plaintiffs briefly pressed California courts as alternatives.

MDL 2282 (Home Depot Wage & Hour Litig.):  After Judge Heyburn disclosed his recusal, Judge Vratil presided over an argument that went strictly to whether consolidation is appropriate.  Judges Barbadoro and Damrell grilled plaintiffs’ counsel over the existence of common issues, citing a class decertification opinion holding that they are few.  Judge Vratil added that the Panel sees its role as facilitating coordinated discovery rather than avoiding inconsistent rulings (which is in fact consistent with § 1407(a)), and pressed plaintiffs’ counsel to speak to that.  Counsel for defendant Home Depot reiterated the key language in its brief, i.e., plaintiffs’ motion is a misguided attempt to revive the “remnants” of a failed case.

MDL 2284 (Imprelis): The main event proceeded with the disclosure of Judge Rendell’s recusal, ostensibly due to her father’s long-time executive position with sole defendant duPont.  The several plaintiffs who had collectively favored various Third Circuit district courts united under the banner of the “Delaware Valley Plaintiffs,” and pressed for consolidation in any one of those courts, with emphasis on the District of Delaware.  The Ohio plaintiffs used the Delaware Valley Plaintiffs’ map to argue that the Northern District of Ohio is the “center of gravity” based on the extensive damage there.  Indiana plaintiffs argued to similar effect, and a Michigan plaintiff suddenly determined that Ohio was preferable.

Counsel for Minnesota plaintiffs cited the fact that travel there entails no red-eye flights, and the Minnesota court’s high-tech courtrooms, before seeking to create new law.  As a result, we know now that Minnesota is in fact the “land of trees,” and that its state tree is particularly susceptible to Imprelis damage.  After and during a series of “state tree” asides from the bench and the bar, other counsel for the Minnesota plaintiffs suggested that, if both his clients and duPont prefer consolidation in Minnesota, there must be something to it.  Counsel for duPont cited extensive Imprelis damage claims in western states, leaving aside why duPont would not prefer the convenience of litigating in a courthouse a few city blocks from its headquarters.

Finally, counsel for the Ohio plaintiffs asked for an additional “15 seconds” after duPont was finished.  Judge Heyburn bluntly denied that request.  Within seconds after that, the courtroom substantially emptied.

MDL 2290 (Chase Mortgage Modification):  Counsel for certain plaintiffs suggested that Judge David Carter of the Central District of California will ensure that aggrieved class members are afforded prompt relief because only the case before him alleges a national class.  Counsel for certain other plaintiffs agreed, but acceded to the District of Massachusetts as well.   Defendant Chase for its part argued for Massachusetts, as the case there was filed six months before others and was most advanced.  The Panel did not speak to that, but Judge Heyburn had noted earlier in the day that the Panel typically transfers cases to the district in which the first-filed case is pending under that circumstance.

MDL 2291 (Wesson Oil Marketing & Sales Litig.):  This was a rare instance in which all counsel present agreed as to the proper disposition of the pending motion. Counsel for defendant ConAgra and for most of the plaintiffs agreed that all pending cases should be transferred to the Central District of California.  Counsel for certain plaintiffs who had belatedly filed an interested party response seeking consolidation in the District of New Jersey failed to appear at the hearing.  The Panel resisted the temptation to end the hearing in favor of lunch, considered the merits of the present parties’ arguments (ConAgra added a pitch for the District of Nebraska as an alternative)–and then ended the hearing in favor of lunch, less than two-and-a-half hours after it started.

The Panel gathers again in Savannah on December 1.  The relative proportions of Panel news and lead counsel news on imPaneled will swing towards the latter in the interim.

Comings and goings

Judge Heyburn attended to news concerning the Panel itself before turning to the pending proceedings this morning, and imPaneled will do the same.  He welcomed to her first hearing Judge Marjorie Rendell of the Third Circuit (and formerly resident in the Pennsylvania Governor’s Mansion) and honored departing Judge Frank Damrell, Jr. of the Eastern District of California, who is stepping down from the federal bench next month.  Chief Justice Roberts has appointed his brother’s brother, Judge Charles Breyer of the Northern District of California, to take Judge Damrell’s place on the Panel.

Judge Heyburn did not reference the absence of Judge W. Royal Furgeson, Jr. from today’s hearing.  Judge Furgeson’s mother passed away earlier this week.


Chaos, Panel-style

The clerk’s nightmare that is In re: Imprelis Herbicide Marketing, Sales Practices and Products Liability Litigation, MDL No. 2284, surely tops the bill for the September 27 oral argument in Philadelphia.  According to the Panel, that proceeding encompasses 45 actions in 18 courts.  The competing motions and responses are little less extensive.  Even defendant duPont hasn’t settled on a single district, favoring Minnesota, but–shockingly–amenable to Delaware.

Plaintiffs are predictably more scattered in their views.  The several camps are generally focused on the following possibilities:

  • Delaware: Labaton filed the initial motion seeking consolidation in Delaware, then acceded to New Jersey and the Eastern District of Pennsylvania in its reply.  Chimicles, Lieff Cabraser, Berger & Montague and others are on board.
  • N.D. Ohio: Wolf Haldenstein, Climaco Wilcox and others filed the second motion, seeking consolidation in the Northern District of Ohio.  They were followed by a slew of other midwestern plaintiffs, some of whom seek assignment to other judges in that district.
  • Minnesota: Robins Kaplan seeks consolidation on its home turf.  Relatively few other plaintiffs join them, and several of those are amenable to the Eastern District of Pennsylvania.
  • Indiana:  A relatively small group of plaintiffs, led by Cohen & Malad, seek consolidation in the Southern District of Indiana.
  • E.D. Pa.: Another relatively small group of plaintiffs, led by Fox Rothschild, Weinstein Kitchenoff and Seeger Weiss, seek consolidation in the Eastern District of Pennsylvania.

There will be more to come as to this one as it develops.

Update:  It turns out that there should have been more to come immediately upon the initial posting of this preview.  I missed a submission from Wilentz Goldman favoring the District of New Jersey (with Delaware as the alternative) and another favoring the Eastern District of Michigan (with the N.D. Ohio as the alternative).  Kudos to Mr. Lüthi and his staff for doing a better job of keeping these things straight than I apparently do.

To fly over or not to fly over

MDL 2274, In re: CitiMortgage, Inc., Home Affordable Modification Program (“HAMP”) Contract Litigation, features a motion by defendant CitiMortgage for consolidation in “a centrally-located jurisdiction, such as the Northern District of Illinois.”  By the time of its reply, Citi determined that the Eastern District of Missouri is also a “centrally-located jurisdiction.”

Plaintiffs are generally averse to “a centrally-located jurisdiction,” at least as Citi defines it.  One group including Berger & Montague and Cuneo Gilbert, equally favors the Southern District of New York and the District of Massachusetts.  Another group, led by Milberg, adds the Central District of California to that list.  The Eastern District of California is on the short list as well.

I would add only that the Panel is currently split 4-3 in favor of coastal judges.

If at first you don’t succeed . . .

MDL 2282, In re: Home Depot U.S.A., Inc., Wage and Hour Litigation, does not encompass a battle over venue, but one over whether centralization is in fact appropriate.  Home Depot claims “[t]hese seven actions are the remnants of an unsuccessful effort to certify a nationwide federal FLSA opt-in collective action and 25 state law classes pursuant to Rule 23 in the United States District Court for the District of New Jersey.”

Plaintiffs, led by Squitieri & Fearon, seek to consolidate five actions pending in other courts with two already pending in the D.N.J., and note that “a court’s class determination and the Panel’s determination under 28 U.S.C. § 1407 are ‘entirely different.'”  That’s certainly the case, at least in the Third Circuit.  A Panel motion doesn’t entail hundreds of thousands of dollars worth of expert evidence and multiple trips to the appellate court.

Those scheming trial lawyers!

The plaintiffs in MDL 2290, In re: JPMorgan Chase Mortgage Modification Litigation, led by Keller Rohrback, Levin Fishbein and Holland Groves, are united in their support of the Central District of California, with the District of Massachusetts as an alternative.  The Chase defendants claim that the plaintiffs are forum-shopping by virtue of filing their Panel motion after the 12(b)(6) stage, and seek consolidation in the District of Massachusetts or the Northern District of California.  As MoFo puts its, “[t]ransfer to the Central District of California would have the perverse effect of encouraging counsel to file copy-cat actions all over the country, wait a year, and then ask the Panel to solve their self-created multi-district ‘problem’ by transferring the actions to the court they view as most favorable.”  (Note that I am not endorsing that view by quoting it.  I’m just a reporter.)

Go west?

MDL No. 2291, In re: Wesson Oil Marketing and Sales Practices Litigation, may be substantially lacking for drama.  Defendant ConAgra started the action by moving for consolidation in the Central District of California, with the District of Nebraska as an alternative.  Four plaintiffs already on file in the C.D. Cal. (led by Wolf Haldenstein) concurred as to consolidation there.  Plaintiffs on file in a single case in the District of New Jersey belatedly filed a response seeking consolidation there.

  • 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.

  • Post categories

  • Archives

  • Enter your e-mail address to follow imPaneled and receive notifications of new posts by email.

  • Obligatory disclaimer

    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.