A truly modest proposal

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.

  • 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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