Did you say “yutes”?

The legal minds at imPaneled have recently been wrestling with weighty issues going to the Panel’s administration of justice.  But it’s a Friday afternoon in August, so those issues will have to await another post.  The spotlight today falls on the comedy highlights from the Portland Panel courtroom–none of which are quite on a par with the highlights from the above-quoted proceedings in a fictional Alabama courtroom.  But Their Honors and the Panel bar still get an “A” for effort.

Blair Hahn of Richardson Patrick scored comedy points in Portland, when he suggested that the cases comprising MDL 2459, In re Lipitor Marketing, Sales Practices and Products Liability Litigation, should be centralized in a southern court because the South is “the Diabetes Belt.”  Their Honors, however, were more impressed with the fact that relatively few cases are pending in light of Lipitor’s long-time and wide-spread use, and denied the motion accordingly.

In MDL 2454, In re Franck’s Lab, Inc., Products Liability Litigation, Their Honors had much to say about defense counsel’s efforts to compress ten minutes worth of argument into two minutes, repeatedly chiding him for speaking too quickly.  Judge Breyer (“You must be compensated by the page.”) and Chief Judge Heyburn (“You should do disclaimers on TV ads.”) were most creative to that end.  But Franck’s Lab had the last laugh, as the Panel granted its motion.

MDL 2460, In re Niaspan Antitrust Litigation, for now falls in the “mystery” rather than “comedy” category, as Their Honors still have not issued an order in that proceeding, a week after otherwise completing their Portland clean-up.  Perhaps certain candidates for the MDL prize have temporarily vacated their chambers for cooler climes in the August heat, and haven’t been taking Their Honors calls.

Finally, imPaneled cannot help but take a bow for nailing our prediction as to MDL 2457, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (No. II).  After allowing the red light in the courtroom to glow longer than any outside of Amsterdam during Dan Becnel’s Panel-record length oral argument, Their Honors rebuffed his novel effort to create a new MDL from opt-outs and assorted scraps of MDL 2179, In re Oil Spill (blah blah blah) . . .  .  And–just like imPaneled–they gave a shout-out* to Elizabeth Cabraser for her able defense of the existing MDL.  Is that “comedy”?  Perhaps not to you.  But we had a nice chuckle in a “great minds think alike” kind of way.

More to come next week, when imPaneled will finally shed its Portland-centric posture.

* – The above should not be construed as a blanket endorsement of 21st century colloquialism in scholarly legal writing such as imPaneled.


Section Fourteen-NO!-Seven

Their Honors have had a productive week, issuing orders in all but a handful of the proceedings that last proceeded in Portland.  And one particular word is common to most of those orders, a word other than the usual suspects (e.g., “re”, “Heyburn”, “litigation”, “schedule”, “centralization”, “isosceles”*).  That word is “denied.”  Their Honors have slugged 11 out of 14 proceedings off their dockets this week, for a Ruthian .786 slugging average.

Much to the delight of the defendants on its dozens of complaints, the sluggees include the movant in MDL 2462, Brandywine Communications, whom defendants accused of appalling procedural misconduct in their Panel submissions.  imPaneled is most pleased that Their Honors noted that in denying the motion, and that they rewarded the defense attorney who informed them at the hearing that “the term of art [for Brandywine] is ‘patent troll.’” Practice note: Name-calling is an effective tool when arguing before the Panel, so long as said names are terms of art.

imPaneled is less pleased with the Panel’s denial of defendants’ motion in MDL 2463, In re Fresh Dairy Products Antitrust Litigation (No. II), in which plaintiffs’ counsel voluntarily dismissed an earlier action after its § 1404 transfer to defendants’ preferred court, only to refile with new plaintiffs in yet another court.  Defendants’ scorched-earth attack on that and other procedural maneuvers perhaps incorporated excessive substantive argument, which induced Their Honors to reach far into the past: “‘[[T]]he framers of Section 1407 did not contemplate that the Panel would decide the merits of the actions before it and neither the statute nor the implementing Rules of the Panel are drafted to allow for such determinations.’ In re Kauffman Mut. Fund Actions, 337 F. Supp. 1337, 1339-40 (J.P.M.L. 1972).”

The Panel did not rely on that reasoning in denying the non-settling plaintiffs’ motion in MDL 2468, In re Pilot Flying J Fuel Rebate Contract Litigation.** But it was clearly lurking in the background, as Their Honors held that the parties and various presiding judges should resolve issues arising from the pending settlement before the Panel weighs in.

imPaneled is most distressed with the Panel’s denial of plaintiffs’ motion in MDL 2453, In re Adderall XR Marketing, Sales Practices and Antitrust Litigation–but not for reasons that have anything to do with nonsense like convenience, justice and efficiency.  MDL 2453 was the first proceeding in which imPaneled speculated publicly as to the result based on the hearing–and we got it wrong.  Perhaps we should have been less taken with Judge Barbadoro’s skewering of defense counsel, and more taken with the fact that plaintiffs in the various actions all assert indirect claims based on the statutes of different states.  Their Honors were more taken with the latter.  Finally, we kind of got one right, when we lauded Judge Barbadoro for chiding plaintiffs’ counsel in MDL 2454, In re Franck’s Lab, Inc., Products Liability Litigation.  Their Honors granted defendants’ motion to centralize those cases in the E.D. La.

More Portland Panel postmortem to come after the last few orders hit the dockets.  Then perhaps imPaneled can turn back to some good lead counsel fights.  In the meantime, if you’re not aware of any such fights, feel free to start one.

* – Not really.  imPaneled just wanted to make sure you were reading carefully.

** – Background as to that ugliness is here.

Portland Panel Post-Game Prognostications

Portland Panel ‘13 is now just a great memory.  Our Panel Tour t-shirts and other Panel swag are packed and headed home.  The lawyer turnout was small by Panel standards, but the city and the assorted legal services vendors in attendance were good to those who made it.

But you’re not here for that fluff.  You want to know what happened in the courtroom, and what may happen going forward as a result.  And imPaneled will not disappoint.  Despite a preternaturally bad record of prognosticating in all other contexts, imPaneled is going to hazard a guess as to some of what is forthcoming as a result of yesterday’s hearing, based strictly on what transpired on the record.  Of course, imPaneled is not privy to all of what transpires behind the scenes among the counsel involved, or–more importantly–between Their Honors and the transferee judge candidates involved.*  In other words, the forecasts below are not legal advice, and by reading this post, you hereby release imPaneled from liability for your acting in reliance on any or all of them.

Enough with the disclaimers. Chief Judge Heyburn opened yesterday’s festivities by welcoming to the Panel bench Judge Sarah Vance of the E.D. La., as does imPaneled.  She replaces Judge Furgeson–he of the oft-misspelled last name–whose inquisitive nature will be missed.  Fortunately, Judge Barbadoro was more than inquisitive, as he repeatedly interrogated counsel as to strategic issues underlying their arguments.  His Honor was most forceful in the contentious MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation (which has been the subject of previous imPaneled coverage) wherein the sole plaintiff, alleged “patent troll” Brandywine, filed and prosecuted cases all over the nation for some time before moving to centralize them in the first court to issue a substantive ruling in its favor (the M.D. Fla.).  Judge Barbadoro asked Brandywine’s counsel whether his motion was filed to seek a substantive advantage, and after counsel denied that, asked incredulously whether the sequence of events was a coincidence (which prompted lawyerly evasion).  Good stuff.  Counsel for the many small-business defendants had the good sense to promptly admit his clients’ strategic motivations when His Honor confronted him.  Their Honors did not tip their hands as to what will happen going forward, but did raise one interesting possibility–they might centralize all of the cases except the M.D. Fla. case in some other court.

In MDL 2453, In re Adderall XR Marketing, Sales Practices and Antitrust Litigation, Judge Barbadoro all but accused defense counsel of resisting centralization solely to inconvenience plaintiffs.  Expect those cases to land in front of Judge Ludwig of the E.D. Pa., who (according to plaintiffs’ counsel) has taken the unusual step of having written to the Panel that he will accept the cases.  His Honor hit the mark again in MDL 2454, In re Franck’s Lab, Inc., Products Liability Litigation, when he scolded plaintiffs’ counsel for citing his clients’ locations, on the premise that they would not have to travel to the transferee court unless and until the cases went to trial there.

Virtually all Their Honors dropped their verbal gavels on Dan Becnel in MDL 2457, In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on April 20, 2010 (No. II), in which he seeks to create an MDL proceeding separate from the existing one for the benefit of certain plaintiffs whose claims he says are being unfairly delayed.  Elizabeth Cabraser responded with a stirring defense of Judge Barbier’s handling of the existing proceeding in the E.D. La.  Expect her to prevail.

Judge Rendell was most skeptical in MDL 2460, In re Niaspan Antitrust Litigation, questioning defendants’ claims that Judge Marrero (S.D.N.Y.) is the ideal transferee judge candidate, for having overseen related patent litigation.  Pennsylvania’s First Lady Emeritus noted that: (1) the patent case closed eight years ago; (2) Judge Marrero has three other MDLs on his docket; (3) he has none of the pending Niaspan cases; and (4) he has shown no apparent inclination to take the case.  Give plaintiffs touting the E.D. Pa. an edge going forward.

Those are most of yesterday’s substantive highlights.  On some date that begins with an “8,” imPaneled will hopefully fill in some blanks, including the comedy highlights, which were many by Panel standards.  Kudos to Judge Breyer in particular for bringing his A game as to that.

* – imPaneled has long suspected that judicial politics play more of a role in the Panel’s activities than is made known to the Panel fan base.

  • 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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