If they want to settle the case, don’t hassle ’em!

In keeping with the football theme of the ongoing Portland Panel Preview, imPaneled shines the spotlight today on MDL 2468, In re Pilot Flying J Fuel Rebate Contract Litigation.  imPaneled’s many readers in Cleveland and Tennessee are likely aware of the underlying claims, as Pilot Flying J is the family business of Cleveland Browns owner (and PFJ CEO) Jimmy Haslam and his brother, Tennessee governor Bill Haslam.  In those parts of the country, press coverage of the allegations has been so intense that controversy surrounding Thursday’s Panel hearing in the case was actually covered in a mainstream newspaper.

But laypeople, try as they may, can’t convey the Panel-centric nuances of the proceeding like imPaneled can.  It began like so many before it, with the public disclosure of a federal investigation, followed by a flood of class actions and a Panel motion.  That in turn was followed by a slew of responses, with most plaintiffs favoring centralization in the S.D. Miss. and PFJ touting its home turf in the E.D. Tenn.

The proceeding became interesting less than a week ago when some (but not all) of the plaintiffs filed in the E.D. Ark.–a district to which no one seeks transfer–a motion seeking the preliminary approval of a class-wide settlement they had reached with PFJ the previous day.  Judge James M. Moody preliminarily approved the settlement the day the motion was filed.  Two days later, the settling parties (including PFJ) asked to stay the Panel proceeding.  The non-settling plaintiffs predictably resisted (and predictably questioned the terms of the settlement) the following day.  And after no doubt spending the weekend engrossed in internal debate, the Panel today entered the minute order imPaneled was hoping to see: “Oral Argument will proceed in this docket as planned.”  Oral Argument indeed.  Settling plaintiffs’ counsel include Lieff Cabraser, the Becnel Law Firm and Zimmerman Reed.  Non-settling plaintiffs’ counsel include Heins Mills and Goldman Scarlato Karon & Penny.

Meanwhile, imPaneled was disappointed to be reminded that when the N.D. Cal. publicly solicited lead counsel applications in the Wells Fargo force-placed insurance cases pending there (see imPaneled’s previous coverage here), it required that they be filed by hand under seal–which means that we will learn nothing about them for the time being.  But there will be wide-ranging lead counsel drama forthcoming in that and vaguely related proceedings nevertheless, which will come to a head before the Panel on Thursday.

The N.D. Cal. Wells Fargo cases are but some of several that comprise MDL 2466, In re Wells Fargo Bank, N.A., Mortgage Corporation Force-Placed Hazard Insurance Litigation.  The plaintiffs’ counsel who forced the public solicitation in the N.D. Cal.–Berger & Montague and Nichols Kaster–have joined forces with Kessler Topaz and Lowey Dannenberg before the Panel, seeking centralization in either the N.D. Cal. or the S.D. Ill.  The Arkansas plaintiffs who were effectively deposed in the N.D. Cal. are resisting centralization anywhere, and aligned with Kozyak Tropin and Podhurst Orseck.

And that is worthy of imPaneled’s attention because . . . .?  Because substantially the same groups of counsel are bickering over venue in three other force-placed insurance proceedings that will be before the Panel on Thursday: MDLs 2464 (v. HSBC), 2465 (v. JPMorgan Chase) and 2467 (v. Bank of America).  The possibilities that would spell victory for one group and defeat for the other are limitless.  The arguments will proceed seriatim immediately after everyone enjoys a lobster lunch.  The plaintiffs’ counsel involved may get eight (rather than the usual two) minutes to speak to the Panel as a result–which is well worth a July trip to beautiful Maine from any district in the nation.

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Sometimes we’re good . . .

. . . and sometimes we’re lucky.  Count today’s post in the “lucky” category.

By way of background, a typical imPaneled post is preceded by hours of painstaking research, dedicated to divining the most intriguing Panel proceeding and/or lead counsel dispute on the nation’s dockets.  That has not been necessary recently, because immediately after imPaneled’s last post, we received an unsolicited e-mail (the text of which is reproduced here) from the N.D. Cal. with the exceptional–no, shocking— subject line “Court Invites Attorneys/Law Firms to Submit Proposals to Serve as Class Counsel in Guerrero v. Wells Fargo Bank, N.A.”  As the court likely sent the e-mail to legions of attorneys on its ECF list, many of imPaneled’s readers likely received it as well.

But only imPaneled promptly vowed to dig deeper.  And upon digging, imPaneled unearthed a veritable iron cage match of a lead counsel dispute, rife with fighting words not only from the combatants, but from the defendant and (at least by judicial standards) the court as well.  And it all transpired in part under imPaneled’s own roof.

Now an aside as to that last thought.  imPaneled spends most of its waking hours laboring under an alternate identity, among some of the finest attorneys anywhere.  But upon donning our reporter hat, imPaneled religiously strives for objectivity and neutrality, each of which will permeate the remainder of this post.

Back to the iron cage match.  Plaintiffs’ counsel primarily from Arkansas litigated the above-referenced Guerrero case–in which plaintiffs charge Wells Fargo with various offenses relating to the forced placement of insurance–with nothing out of the ordinary appearing on the docket.  The relative peace crashed to an end in late May, when plaintiffs–represented by Nichols Kaster and Berger & Montague–asserting similar claims in other courts moved to intervene.  That submission accused Arkansas counsel of an “attempt to leapfrog” the other actions, in part by taking inadequate discovery before having recently moved for class certification, making multiple misrepresentations regarding the other actions in support of that motion, and generally having represented the proposed class inadequately.  Gauntlet thrown down.

Over the next several weeks, an escalating flurry of scurrilous language filled the docket.  Arkansas counsel took issue with the Intervenors’ “fixat[ion] on arguments ad hominem against Plaintiffs’ attorneys”, then scolded the Intevenors for their “consistent lack of diligence” in prosecuting their own cases.  Then Wells Fargo–unlike most defendants who, in imPaneled’s experience, prefer to stay above such trial lawyer ugliness–deemed the Intervenor’s proposal “‘half baked’ [sic] at best”, and charged them with “unfairly” accusing Plaintiffs’ counsel of underhanded conduct in which they themselves had engaged.  Harrumph!

Intervenors raised the ante in their reply, accusing Arkansas counsel of “hav[ing] engaged in a pattern and practice of filing ‘me-too’ actions on top of many . . . existing [force-placed insurance] cases”–replete with a chart detailing not just the pattern, but the practice as well.  And Arkansas counsel filed a sur-reply directed strictly at the chart, which they claimed “falsely paint[ed] Plaintiffs’ Counsel as ‘copycats’ so that [they] could undertake a hostile takeover of this case.”

Inadequacy of counsel?  “Consistent lack of diligence”? “[H]alf baked”? “[P]attern and practice” of dubious conduct? “[H]ostile takeover”?  What is this? The comments to a TMZ article? Surely His Honor (Alsup, J.) would exercise some decorum.

Or maybe not.  In a holding for which the Court did not cite any precedent–which by no means diminishes it–the Court certified a class, but “only conditionally upon selection of adequate counsel.”  His Honor deemed Arkansas counsel inadequate based on: its “misrepresentations to the Court,” one of which it found “baffling”; its “lackluster performance in discovery”, during which it “should have moved to compel but did not”; and the Court’s “prior and disappointing experience with several of the applicant firms and attorneys”, which included “a hold-up maneuver unworthy of Rule 23 practice.”

Rather than hand the prize to Intervenors’ counsel, the Court opened the process to the whole world, first via the above-linked notice on the district web site, then via the mass e-mail.  Perhaps a full-page ad in the New York Times is forthcoming, as a week remains until responses are due.

imPaneled cannot complete such a harrowing saga of plaintiffs’ bar infighting without a serious note, in the form of the type of incisive insight for which imPaneled is renowned.  imPaneled often makes light of such frank discussion of the issues raised in this context.  But Judge Alsup’s reaction tends to suggest that in this instance, it was well-justified.  imPaneled thanks His Honor for his bluntness, and for exercising some creativity, and encourages other judges to do likewise.  Litigants and justice will be better served when counsel on both sides of all cases are held accountable for misconduct in no uncertain terms.

  • 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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