Lawyers in lawn mower MDL try to head off St. Clair County reverse auction

Steve Korris Oct. 14, 2009, 11:45am


MILWAUKEE – U.S. District Judge Lynn Adelman has halted national class action litigation over lawn mower engines while lawyers in his court try to head off a copycat class action at St. Clair County courthouse in Belleville.

Lawyers in Adelman's court protest that Richard Burke of St. Louis plans a "reverse auction" that would settle lawn mower claims for less money than they would obtain.

Though Adelman previously stayed the national action, he wrote on Oct. 9 that he would lift the stay if anyone requested a writ relating to proceedings in Illinois.

On Oct. 13, he called lawyers leading the national action and brought them up to date on the Illinois action.

On the same date the Illinois action stopped.

St. Clair County Circuit Judge Michael O'Malley, who planned to hear a motion to dismiss Burke's suit, called off the hearing due to Burke's unavailability.

O'Malley wrote that the parties would reschedule it on a mutually agreeable date.

That sets the stage for a reverse auction.

Class action lawyers once hurled those words as an insult, but last month U.S. District Judge Jose Linares of Newark, N.J., legitimized reverse auctions.

Linares ruled that defendants deserve an opportunity to negotiate the same claim with different legal teams.

He rejected a bid from lawyers in a California case for 80 percent of fees from a competing class action in his court.

His ruling favored Burke and Paul Weiss of Chicago, Burke's class action partner.

The lawn mower litigation started in St. Clair County five years ago, though Burke and Weiss had nothing to do with it.

JoDee Favre of Belleville filed the suit for Johnnie Phillips of Belleville, claiming mowers didn't deliver as much power as manufacturers and retailers promised.

Favre sued in association with Vincent Esades and Brian Sund of Minneapolis.

They moved to certify a national class action under Illinois consumer fraud law, but in 2005 the Illinois Supreme Court prohibited national class actions under that law.

Favre amended the suit to allege racketeering under federal law.

Defendants removed the suit to federal court, where they moved to dismiss it.

At a hearing in 2006, U.S. Judge Patrick Murphy said the allegation was particularly ill suited for class treatment.

"You absolutely have to take the position that, had I known this I would have acted different," he said.

"As a matter of fact there will be many people that would purchase a lawn mower that could absolutely care less," he said.

"Maybe grandma doesn't care about the horsepower," he said.

He dismissed the suit in May 2008, with leave to replead.

Last October, Burke filed an Illinois consumer fraud claim against Sears Roebuck in St. Clair County on behalf of Illinois resident Andrew Stone.

Weiss added his name to the complaint, as did Belleville lawyers Kevin Hoerner, Alvin Paulson and Brian Kreiser.

Defendants objected because Hoerner, Paulson and Kreiser had worked on their side in 2006, as counsel for Kawasaki Motors in the case before Murphy.

Hoerner, Paulson and Kreiser withdrew.

Meanwhile the Minnesota lawyers pursued a dual strategy, amending the complaint before Murphy while filing new suits in 48 states.

Last December, the U.S. Judicial Panel on Multi District Litigation consolidated the suits and assigned them to Adelman.

Right away, Louisiana lawyer Danny Becnel tried to take over.

He moved for appointment as lead counsel and told Adelman at a hearing that he had spoken with Briggs & Stratton lawyer Thomas Kuhns about mediation.

He said Kuhns was concerned about stock prices of various defendants.

"The marketplace is breaking in terms of production and layoffs et cetera, so I have suggested someone that wouldn't charge him anything," Becnel said.

"This case has lingered for five years," he said.

Adelman denied the motion, picking Esades and Sund to lead the plaintiff team.

Becnel asked about Illinois, and Esades said a few attorneys tried to avoid the court's jurisdiction and do a reverse auction.

"It would be a situation where somebody could try and attempt to settle this case out from underneath the counsel that are represented here, in a state case, nationwide as to that one defendant," Esades said.

"I would like to have them folded into the MDL because to me it's just a gimmick to try and stay there," he said.

Adelman said, "If there's any judges I need to consult with or any matters relating to state cases that I need to address, I will be happy to address them as they arise."

At a status conference in July, Adelman told lawyers he contacted O'Malley and tried to coordinate proceedings.

Nothing on either docket since then shows any coordination.

Along with Sears Roebuck, Briggs & Stratton, and Kawasaki, the roster of defendants includes John Deere, Tecumseh Products, MTD Products, Toro, Honda, Electrolux, Kohler Company, Platinum Equity and Husqvarna Outdoor Products.

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