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.

Panel Hearing CCLXXIV . . .

. . . give or take a few I’s, will proceed in 130-odd hours in the Land of Lobster.  Why the Roman numerals?  Because to imPaneled, Panel hearings are like the Super Bowl.  And if imPaneled had more to say about it, they (like the Super Bowl) would be quasi-national holidays.  Accordingly, imPaneled is starting the pre-game analysis far in advance of the event.

The argument of MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation, will surely be among Thursday morning’s highlights.  imPaneled previously covered that proceeding, wherein the eponymous movant had been deemed a “patent troll” by certain outsiders.  We suggested mayhem might ensue as the proceeding moved forward, and we were not disappointed.  Fortunately for those of us with an appetite for verbal violence, Brandywine has sued dozens of small companies.  Small companies tend to retain small firms that do not frequently appear before the Panel.  And such firms are more prone to fighting words than are Panel veterans–which is a good thing.

So one submission opposing Brandywine’s motion starts thusly: “This is a troll case. The troll plaintiff, Brandywine Communications . . .”.  Another deemed Brandywine’s parent company “widely recognized as one of the largest patent trolls in the world.” Yet another said Brandywine “indiscriminately filed suit against thirty-nine entities”. . . “without inquiring into the factual basis for its claims.”  As to that, another added “[t]his is not appropriate jurisprudence, this is abuse of process.”  And finally: “Brandywine has made 41 beds, and now it must lie in each one.”  Predictably, the only big business defendant, AT & T, made its points more blandly, as did Brandywine in its reply.

MDL 2463, In re Fresh Dairy Products Antitrust Litigation (No. II), has proceeded without verbal fisticuffs, but with procedural fisticuffs uncommon in antitrust circles.  Defendants–who are represented by the cream of the antitrust defense boutiques, among others–made much of plaintiffs’ counsel having dismissed a case upon its § 1404 transfer, only to refile with a new plaintiff in a new district, and of their deeming an alleged indirect purchaser “direct,” in violation of the sacred Rule of Illinois Brick.  And plaintiffs scolded defendants for claiming their case was moot immediately upon making an offer of judgment to the named plaintiff, and for petitioning for mandamus when the district court refused to transfer the case to defendants’ preferred district.  It’s not just venue–it’s personal.  Meanwhile, Hagens Berman, which admits to representing indirect purchaser plaintiffs, is on defendants’ side.

More pre-game insights coming next week.  In the meantime, stock up on your beer and munchies, and tell your boss you’ll be sick on Thursday so can you can enjoy the festivities.


Trolling for Dollars*

This week’s spin of the Panel wheel landed imPaneled on a new proceeding that raises subject matter new to imPaneled.  Despite having been raised among the world’s foremost patent litigators (which they would happily tell you themselves), imPaneled has neglected the many patent cases on the Panel dockets–until now.

Some people would call Brandywine Communications Technologies, movant in the eponymous MDL 2462, In re Brandywine Communications Technologies, LLC, Patent Litigation, a “patent troll.” Brandywine precipitated MDL 2462 by filing 41 cases in 22 districts against DSL providers, alleging the infringement of six patents.  Now, imPaneled would never disparage anyone with an epithet as vile as “troll” (though we might use viler ones).  But it does bear mentioning that Brandywine is decidedly not in the DSL business.

imPaneled’s competitors (in a sense) at Thomson Reuters recently harkened back to 2011, when “conventional wisdom” was that the America Invents Act of 2011 would force patent trolls to the Panel in droves, which has not necessarily happened yet.  The good news is that the long-standing and ongoing battle between patent trolls and their alleged victims over joinder and venue issues raises the possibility that MDL 2462 could be particularly venomous by Panel standards.  imPaneled will be rooting for that.

* – imPaneled composed the title of this post with assistance only from this invaluable site–really–only to discover afterwards that everyone who has written about this subject has used the same title.  Sorry, imPaneled fans–sometimes you get what you pay for.

  • 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.

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