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).

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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.

 

Davids v. Goliaths

No, that does not reference litigation involving underfunded little guys represented by small firms going up against corporate behemoths represented by white-shoe counsel.  That would be trite.  In MDL 2406, In re Blue Cross Blue Shield Antitrust Litigation, it references the battle between small plaintiffs’ firms and big plaintiffs’ firms for control of the case.  And defendants’ counsel are surely watching (and running the meter) with great amusement as it develops.

Let’s recap.  imPaneled reported last month that class action titans Boies Schiller and Cohen Milstein were contesting leadership in seven antitrust actions against Blue Cross entities consolidated in the N.D. Ala.  Later that week, plaintiffs represented by Montgomery firm Davis & Taliaferro (“D & T”) petitioned the Panel to centralize two arguably similar cases from other districts in that court–one that Boies Schiller had filed in the W.D.N.C., and one that Ball & Scott had filed in the W.D. Tenn.

Evidently unbeknownst to D & T, Ball & Scott also had a case pending against the Blues in the M.D. La.  Sensing an opportunity to grab a seat at a larger table, Ball & Scott’s local counsel told the Panel that centralization is appropriate, but pressed the E.D. La., where, by virtue of an astonishing coincidence, another firm had filed a complaint that very day.

Boies Schiller and Cohen Milstein predictably opposed the disruption of their carefully laid plans (though BSF threw in a plug for the W.D.N.C., so that it might maintain control of the proceedings even if the Panel acts).  As for the Blues?  Well, most Panel observers know that, all things being equal, when centralization is in doubt (as it is here), most defendants oppose it–obviously for reasons of justice and efficiency, but perhaps also because it enables underfunded plaintiffs and their firms to pool their resources for the common benefit.

But all is not equal in this case.  Defendants are faced with two possibilities as to the N.D. Ala. actions: (1) plaintiffs led by united counsel, with high-powered firms in the lead; or (2) bickering among plaintiffs’ counsel over leadership, followed by some degree of additional bickering over the course of the proceeding if firms from more than one group are given co-lead positions.  Option (2), of course, falls into each of the two broad categories that form the pillars of defense strategy: Obstruction and Delay (cue singing angels).

That’s a long way of saying the Blues favor centralization.  The ones represented by Kirkland & Ellis were the most verbose about it.  There will likely be little further excitement before the Dallas Panelpalooza in late November.  But imPaneled will be all over it if there is.

 

  • 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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