If they want to settle the case, don’t hassle ’em!

In keeping with the football theme of the ongoing Portland Panel Preview, imPaneled shines the spotlight today on MDL 2468, In re Pilot Flying J Fuel Rebate Contract Litigation.  imPaneled’s many readers in Cleveland and Tennessee are likely aware of the underlying claims, as Pilot Flying J is the family business of Cleveland Browns owner (and PFJ CEO) Jimmy Haslam and his brother, Tennessee governor Bill Haslam.  In those parts of the country, press coverage of the allegations has been so intense that controversy surrounding Thursday’s Panel hearing in the case was actually covered in a mainstream newspaper.

But laypeople, try as they may, can’t convey the Panel-centric nuances of the proceeding like imPaneled can.  It began like so many before it, with the public disclosure of a federal investigation, followed by a flood of class actions and a Panel motion.  That in turn was followed by a slew of responses, with most plaintiffs favoring centralization in the S.D. Miss. and PFJ touting its home turf in the E.D. Tenn.

The proceeding became interesting less than a week ago when some (but not all) of the plaintiffs filed in the E.D. Ark.–a district to which no one seeks transfer–a motion seeking the preliminary approval of a class-wide settlement they had reached with PFJ the previous day.  Judge James M. Moody preliminarily approved the settlement the day the motion was filed.  Two days later, the settling parties (including PFJ) asked to stay the Panel proceeding.  The non-settling plaintiffs predictably resisted (and predictably questioned the terms of the settlement) the following day.  And after no doubt spending the weekend engrossed in internal debate, the Panel today entered the minute order imPaneled was hoping to see: “Oral Argument will proceed in this docket as planned.”  Oral Argument indeed.  Settling plaintiffs’ counsel include Lieff Cabraser, the Becnel Law Firm and Zimmerman Reed.  Non-settling plaintiffs’ counsel include Heins Mills and Goldman Scarlato Karon & Penny.

Meanwhile, imPaneled was disappointed to be reminded that when the N.D. Cal. publicly solicited lead counsel applications in the Wells Fargo force-placed insurance cases pending there (see imPaneled’s previous coverage here), it required that they be filed by hand under seal–which means that we will learn nothing about them for the time being.  But there will be wide-ranging lead counsel drama forthcoming in that and vaguely related proceedings nevertheless, which will come to a head before the Panel on Thursday.

The N.D. Cal. Wells Fargo cases are but some of several that comprise MDL 2466, In re Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation.  The plaintiffs’ counsel who forced the public solicitation in the N.D. Cal.–Berger & Montague and Nichols Kaster–have joined forces with Kessler Topaz and Lowey Dannenberg before the Panel, seeking centralization in either the N.D. Cal. or the S.D. Ill.  The Arkansas plaintiffs who were effectively deposed in the N.D. Cal. are resisting centralization anywhere, and aligned with Kozyak Tropin and Podhurst Orseck.

And that is worthy of imPaneled’s attention because . . . .?  Because substantially the same groups of counsel are bickering over venue in three other force-placed insurance proceedings that will be before the Panel on Thursday: MDLs 2464 (v. HSBC), 2465 (v. JPMorgan Chase) and 2467 (v. Bank of America).  The possibilities that would spell victory for one group and defeat for the other are limitless.  The arguments will proceed seriatim immediately after everyone enjoys a lobster lunch.  The plaintiffs’ counsel involved may get eight (rather than the usual two) minutes to speak to the Panel as a result–which is well worth a July trip to beautiful Maine from any district in the nation.

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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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