The plot deepens

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).


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.


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.

  • 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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