Under pressure, attorneys shop for judges in MDL hearings

Steve Korris Jan. 17, 2007, 4:24am

U.S. District Judge Frederick Motz of Maryland

ST. LOUIS -- Shopping for a judge takes nerve, especially when an attorney only gets four or five minutes to do it.

The U.S. Judicial Panel on Multi District Litigation applies that kind of pressure every other month, giving attorneys precious moments to pitch for their favorite federal judges.

The seven judges on the Panel can pull similar class actions and mass actions out of U.S. district courts and centralize a whole batch of suits in one court.

Centralization continues until attorneys settle the whole batch of suits or until a judge has prepared the suits for trial. Suits then go back where they started.

Congress created the Panel in 1968. The Chief Justice of the U.S. Supreme Court appoints the members.

At the Panel's last session, on Nov. 30 in St. Louis, attorneys debated the merits of judges like sports fans arguing over a most valuable player award.

U.S. District Judge Frederick Motz of Maryland acted as the Panel's conscience in the judicial sweepstakes.

Motz kept asking how certain cases wound up before certain judges. He got vague answers and strange answers.

One attorney said he picked a judge and his client agreed.

Going with the experts

In that case Scott Poynter of Little Rock, Ark., moved to combine four federal suits from Louisiana and two from Missouri with seven in Little Rock federal court.

Poynter represented plaintiffs who accuse Bayer CropScience of contaminating regular rice seed with genetically modified seed.

Poynter said, "Fifty percent of the country's rice supply is grown by Arkansas farmers. Last year $800 million worth of rice was grown in Arkansas."

He said, "That's eight times more than Missouri farmers and almost four times more than Louisiana farmers."

He said, "Also in Arkansas there was a motion made for preliminary injunctive relief in front of Judge Susan Weber Wright."

Motz said, "Why was the hearing before Judge Wright? I noticed that there are different judges in Arkansas handling it. I frankly thought it was Judge Eisele who had the first, the lowest numbered case."

Poynter said, "The initial case went to Judge Leon Holmes and Justice Holmes recused, and I think it's because some of his family are rice farmers."

He said, "The second action was in front of, I believe, Judge Howard who we believe is going on senior status or at least there's some indications there."

He said, "We felt because of the transfer issues with regards to Judge Holmes and the senior status with regard to Justice Howard, that we should talk with our client in the Binkley action and ask him whether he would support the filing of a motion for injunctive relief with Judge Wright, and he agreed to do so."

Motz said, "But there is no rule in Arkansas that one of these judges – that they all get transferred to the judge, say, with the lowest or the first filed case?"

Poynter said, "I am not sure that there is a rule but there were some issues as I have discussed in terms of transfer and senior status that were the reasons."

Motz tried again as defense attorney D.P. Marshall of Jonesboro, Ark., echoed Poynter's plaintiffs in advocating for Little Rock.

Marshall represented Riceland Foods of Stuttgart, Ark., a secondary defendant in two of the Bayer suits in Little Rock.

He said, "It was one of our customers that came to us and said, I think there is genetically engineered material in this long grain rice, and thus began the process of discovery and testing."

Motz said, "Can you clarify for me any more, who has the first filed case in Arkansas? I imagine it – I am a little – I am very confused about it."

Marshall said Eisele had the lowest number.

He said, "We have a local rule that requires a notice of related case, and all of the judges with related cases will confer and decide who gets to keep them and whether there is a transfer among them."

J.R. Whaley of Alexandria, La., representing a Louisiana rice farmer, asked the Panel to centralize the Missouri and Arkansas cases into his cases.

He said, "The only rice seed that this contamination has been found in is the Cheniere seed. Cheniere is developed in Crowley, La., by the LSU rice research station."

He said, "Louisiana has the second largest number of class members in this case."

For Bayer CropScience, Mark Ferguson of Chicago argued for centralizing in the Eastern District of Missouri – the courthouse where the Panel met.

He said, "We believe that the transferee forum should be one that is most convenient for all the parties and their counsel, with judges that have both time and resources available to address it and who have significant experience particularly, if possible, in the issues that relate to genetically engineered crops."

He said, "In this district there is a lot of that and Judge Sippel is one who has had in particular a case that involves very similar issues."

Don Downing of St. Louis, representing plaintiffs there, agreed with Ferguson on transfer to St. Louis.

He said the district had far and away the most expertise in the country on genetically contaminated crops and genetically modified seeds.

He said, "Monsanto is based in St. Louis. Monsanto literally wrote the book on genetically modified organisms."

East v. West

Another case boiled down to a battle over two judges on opposite coasts.

John Wylie of Chicago, representing plaintiffs in a wage and hour suit against Wachovia Securities, had moved had to pull suits from five other districts into Chicago.

At the hearing he announced a change of mind. He said all plaintiffs agreed to centralize before Judge Carter in the Central District of California.

Wachovia attorney Lorie Almon of New York City favored centralizing too, but not in California.

Almon said, "There is no question that the cases belong in the Southern District of New York, particularly in front of Judge Karas. It is clearly the center of gravity in this case."

She said the New York cases were filed first. She said the docket sheet showed about 70 entries compared to about 20 for Carter.

She said Karas set a discovery schedule.

Prudential Equity Group, lead defendant in one case and second defendant in others, also argued for Karas.

For Prudential, Andrew Schaffran of New York City said a New York plaintiff had filed an irrelevant and misleading brief.

Schaffran said the brief stated that Carter moved expeditiously to consolidate cases pending before him.

He said, "Judge Carter has had these cases before him for a year now and the only thing that has happened in that case is that there has been consolidation."

He said, "Judge Carter doesn't have any knowledge of the facts or the issues or the concerns of the parties because they have not been brought to him yet."

He said, "Unlike the actions before Judge Carter, there are several very important substantive motions pending before Judge Karas."

He said the brief stated that Karas recently issued an order starting the case from scratch. He said Karas already withdrew the order.

He said the brief stated that Karas was too burdened with other cases. He said there was no evidence of that and the Panel could contact his chambers to confirm that.

Plaintiff attorney Edward Wynne of Greenbrae, Calif., said, "To say that New York is the earliest is only a matter of two weeks."

He said, "Judge Carter has demonstrated a willingness and ability to take and organize all of the cases, not just in California but all the cases across the country before him."

Motz asked if Carter still handled prison gang cases. He said, "He has really done a terrific job but it has been very burdensome."

Wynne said, "He has not given us any indication that he is overburdened or unwilling. In fact, I think everything that he has communicated to us to the present has indicated just to the contrary."

Plaintiff attorney Ryan Stephen of Chicago said, "According to defense counsel there was an order entered recently. It had to be within the last 12 hours. I have not seen that order but the bottom line, there has been absolutely no discovery conducted in this case."

Motz said, "I don't like to be cynical but what is it, why is it, that all of a sudden everybody wants to leave the Southern District of New York?"

Instead of answering, Stephen repeated reasons in favor of California.

In another case an attorney alleged a suspicious settlement.

In that case brokers suing Banc of America Investment Services for overtime pay moved to centralize cases from four districts in Southern or Eastern New York.

John Halebian of New York City said, "The cases that we brought were filed in a few different states because that was where the plaintiffs worked."

He said, "We intended to invoke the protection of those particular states' laws that would protect the brokers in that state. It wasn't simply to generate unnecessary multiple litigations."

Anticipating an argument that centralization would interfere with a settlement, he said, "There is some question as to whether there really is a settlement here."

Motz asked if it made sense to centralize in the Central District of California before Judge Stotler. He said she could ask the correct questions about a settlement.

Halebian said, "We think that this settlement was set up, designed to have a large attorney fee component for basically not doing any work in the case."

He said that in the Ninth Circuit there was very little judicial scrutiny of fees.

Panel member Lowell Jensen, district judge in California, said, "You are saying Judge Stotler can't handle it?"

Halebian said, "What I'm saying is, this may have been a settlement that was designed that could only fly in California and nowhere else."

For Banc of America, Stephen Sonnenberg said parties to four cases signed a memorandum of understanding in August.

He said they had not submitted a motion for preliminary approval.

Panel member Robert Miller, district judge in Indiana, asked why not.

Sonnenberg said, "We have just been very, very careful and tried to be very thorough about how we are going ahead and preparing those papers and making sure the interests of class members and the interests of my client are adequately represented."

He said moving the case would impede settlement.

He said there was no evidence of collusion or that no work was done.

Plaintiff attorney James Clapp of San Diego said settlement documents would be signed in seven to 10 days.

He called Halebian's clients latecomers, saying they applied for Multi District Litigation only after learning about the settlement.

He said, "It is an attempt to thwart a settlement. The whole purpose of an MDL proceeding is to encourage settlement, encourage resolution of these actions."

Halebian said, "There is no purpose for us to interfere with the settlement. We want as much judicial scrutiny of the settlement as is possible because we are concerned about how the whole settlement arose."

He said, "If you look at the facts on its face, it is suspicious."

Temptation of inclusion

In another case attorneys for six securities firms moved to centralize 15 New Jersey suits and a New York suit in a single court.

The securities firms stood as secondary defendants behind lead defendant Vonage Holdings in suits claiming fraud in the initial public offering of Vonage.

For the securities firms Deborah Buell of New York City said the New York plaintiff and a New Jersey plaintiff, Steven Norsworthy, objected to centralizing.

She said everyone agreed to drop Norsworthy.

She said the New York plaintiff, Robner, wanted his court to decide a motion for remand before transferring his suit.

She said a transferee court could decide the motion.

Motz said, "I probably should know this from the papers, but all of the actions in New Jersey, are they now consolidated before the same judge?"

Buell said, "They are all in front of the same judge. There has been no official order of consolidation."

Motz said, "Is that the same judge who has the Norsworthy case?"

Buell said, "That is correct. That is Judge Wilson."

Stan Doerrer of Washington appeared for Norsworthy, and Panel Chief William Hodges, district judge in Florida, asked if his case was before Judge Wilson.

Doerrer said yes. Hodges said, "I am curious as to what difference it makes then as to whether you are included or excluded from the MDL, if there is to be one."

Doerrer said, "The Norsworthy case is so fundamentally factually distinct that even just being included in the order of this Panel would in a sense wrap a bow around dissimilar cases that might tempt the judge to handle them differently than she would have otherwise."

Centralize, but where?

In another case Hodges pressed the same point Motz kept pressing.

In that case five defendants in liability suits about a home improvement product, Stand 'n Seal, moved to centralize 11 cases from eight courts.

Edward Ruff of Chicago, representing Roanoke Companies Group, said both sides agreed on centralizing but did not agree on the appropriate court.

Ruff favored the court in Atlanta. He said the district was home to headquarters of defendants Home Depot and Innovative Chemical Technologies. He said it was home to Roanoke's research and development facility.

He said 10 judges in Atlanta had prior MDL experience.

Mikal Watts of San Antonio, representing plaintiffs in three suits in San Antonio and speaking for all plaintiffs, argued for San Antonio.

Hodges said the cases in San Antonio were assigned to two judges.

Watts said, "Let me explain that."

Hodges said, "Yes, please."

Watts said, "Prior to the MDL motion that was filed we got the first two consolidated. We were in the process of going to the third judge and getting that done as well."

He said, "We do not anticipate, given the history in the San Antonio district or the Western District, that that is going to be any problem at all. We just hadn't got it done before this proceeding initiated."

Hodges asked which judge would end up with the litigation.

Watts said, "Let me give you an example. The Koehler case did not originally start in Judge Garcia's court but was consolidated into it. Judge Xavier Rodriguez has the third case, and we anticipate that a consolidation will be taking place if the MDL panel decides to send it there."

Hodges said, "There is no rule of court in the Western District that in these circumstances the cases should be transferred to the judge who received the first filed action?"

Watts said, "I am not certain there is a written rule of court. It's kind of the practice, and it has been done a long time that way and we anticipate that that will happen."

The Panel took all arguments under advisement.

More News