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.


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.


  • 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.

  • Post categories

  • Archives

  • Enter your e-mail address to follow imPaneled and receive notifications of new posts by email.

  • Obligatory disclaimer

    The information on this web site is not legal advice, and neither the posts nor the comments reflect the opinions of Berger & Montague, P.C., or any of its clients. If you communicate with Berger & Montague through this site or otherwise as to a matter in which the firm does not represent you, your communication may not be treated as privileged or confidential.