This is a vitriol-free zone

Despite having recently taken a break from docket-scouring, imPaneled found few fireworks in its backlog of recent Panel and lead counsel submissions.  We were most disappointed that the movant’s reply brief in MDL 2413, In re Frito-Lay Bean Dip Marketing and Sales Practices Litigation, scrupulously ignored Frito-Lay’s detailed claims as to their procedural gamesmanship.  Hopefully, Their Honors on the Panel will seek a substantive response when movant’s counsel appears before them in Dallas.

As to the lead counsel front, unless imPaneled’s detective work is not what it used to be, the only meaningful dispute to develop in recent weeks is one between Kaplan Fox and Horwitz, Horwitz & Paradis in a remnant of the proceeding formerly known as MDL 2374, In re Honey Production Marketing and Sales Practices Litigation.*  Evidently, the Paradis firm enlisted a plaintiff, who took his business to Kaplan Fox within a matter of months thereafter.  Before Kaplan Fox entered its appearance, the Paradis firm filed a related case with another plaintiff.  Kaplan Fox claims that the Paradis firm’s subsequent efforts to assume control of the litigation violated its ethical obligations to its former client and render it unfit to represent the class.  The Paradis firm disagrees and denies any wrongdoing.  Judge Chen of the N.D. Cal. will hopefully resolve the dispute in prolific fashion.

Now that the public will be spared electoral vitriol for another four years, perhaps both sides of the class action bar could fill the void with the kind of vitriol that appears on imPaneled’s pages.  imPaneled wants to see fire and brimstone rising from the dockets it searches next week.

* – The Panel denied the Paradis firm’s motion to consolidate several cases based on their relative paucity of common facts.

I’m shocked, SHOCKED . . .

. . . to see class action plaintiffs’ counsel accused of engaging in procedural gamesmanship to seize control of litigation against a defendant with deep pockets.  Alas, if Gibson Dunn has told the Panel the entire sordid saga of litigation against its client Frito-Lay, that is exactly what has happened.

By way of background, the Panel’s dockets have recently reflected what at first glance appeared to be a veritable crime spree by Frito-Lay.  On consecutive business days, plaintiffs initiated 1407 proceedings in MDL 2413, now captioned In re Frito-Lay Bean Dip Marketing and Sales Practices Litigation, and MDL 2414, In re Frito-Lay Tostitos & Sun Chips Marketing & Sales Practices Litigation.

Frito-Lay recently shed some light on the mystery, detailing how litigation as to all of its delicious and nutritious snack items has been proceeding apace in the E.D.N.Y., and seeking to centralize both MDLs there.  But, says its counsel, a bevy of plaintiffs’ firms, led by San Francisco’s Law Offices of Howard W. Rubinstein, P.A., have “file[d] multiple duplicative lawsuits [in other districts] in order to obtain a stake in earlier-filed litigation.”  The details, which are consolidated on the penultimate page of Frito-Lay’s submission, are not pretty.  Says Gibson Dunn: “All of this has to stop. The judicial system is not designed to work this way.”

Those are fightin’ words, at least by Panel standards.  Fortunately, plaintiffs in both MDLs have an opportunity to defend their honor in reply briefs.  imPaneled looks forward to that, as well as a lively discussion in Dallas next month.

  • 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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