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.


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.

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.

  • 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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