Xarelto Settlement Faces Legal Challenge

As the Xarelto Defendants continue to move to dismiss plaintiffs cases, utilizing the dismissal machine, created by Case Management Orders,  apparently stipulated to by certain members of the Xarelto Plaintiffs Steering Committee, other attorneys continue to aggressively fight for their clients.

Despite the fact that it appears these certain members of the Xarelto Plaintiff Steering Committees interest are now more aligned with the defendants than the Plaintiffs they purport to represent, other firms not on the PSC are pushing back.

Below is a copy of a motion that was filed challenging the propriety of  dismissals with prejudice based on the various “settlement orders” as well as the fact that the “settlement orders” have in essences created an unlawful opt in requirement. These arguments might be useful to firms in filing motions for reconsideration under FRCP 60 related to cases that have already fallen victim to the dismissal machine.

Motions have also been filed challenging the Xarelto MDL Courts subject matter jurisdiction (asserting the MDL Court lacks subject matter jurisdiction) over the private settlement agreement and thus lacks subject matter jurisdiction to enter orders to assist the parties in effectuating the terms of the settlement agreement (those orders I refer to as the “dismissal machine”.) I will cover the subject matter jurisdiction issues in other posts.

Below is the text of the motion mentioned above:

 

PLAINTIFFS’ OBJECTIONS TO SHOW CAUSE ORDERS

INTRODUCTION

In its Show Cause orders, this Court has stated that the Plaintiffs’ causes of action will be dismissed with prejudice as a penalty for Plaintiffs’ failure to submit an Enrollment Election Formand/or a Notice of Intent to Proceed. [Doc. 16218, Order Rescheduling Hearing to Show Cause; Doc. 15416, Order to Show Cause Regarding Plaintiffs Who Have Failed to Comply with CaseManagement Order 12A; Doc. 14877, Case Management Order 12A]. Pursuant to CMO 12A, only voluntary dismissals with prejudice are allowed. [Doc. 14877, Page 2 of 2.]

Plaintiffs on the attached Exhibit 1 (“Objecting Plaintiffs”), through undersigned counsel, object to the dismissal of their cases. Exhibit 1-A is a list of Plaintiffs who need more time to make an election, and Exhibit 1-B are a list of Plaintiffs who have made an election deemed deficient by BrownGreer. Objecting Plaintiffs’ cases should not be dismissed for four reasons. First, the prerequisites for the harsh remedy of dismissal with prejudice have not been met. Second, because there is no class certification, Plaintiffs are non-parties to the settlement and have no obligation to respond. Third, requiring that Plaintiffs undertake procedural hoops or face dismissal is akin to imposing an “opt in” class requirement, and as such is forbidden by operative law. Fourth, requiring a category of individuals in ill health to appear, in addition to the appearance of their counsel, as a penalty for not responding to a settlement offer not directed to them or presented in their individual cases is unreasonable.

ARGUMENT AND AUTHORITIES

The Prerequisites for Imposing the Harsh Remedy of Dismissal with Prejudice Have Not Been Met.

Federal Rule of Civil Procedure 41(b) provides, “if the plaintiff fails to prosecute or to comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it.” Interpreting the Federal Rules of Civil Procedure, the jurisprudence has strictly circumscribed the instances in which a case can be dismissed with prejudice.

Dismissal with prejudice is “an extreme sanction that deprives a litigant of the opportunity to pursue his claim.” Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 247 (5th Cir.1980). “Dismissal with prejudice is appropriate only when there is ‘a showing of (a) a clear record of delay or contumacious conduct by the plaintiff, and (b) where lesser sanctions would not serve the best interests of justice.’” Griggs v. S.G.E. Mgmt., L.L.C., 905 F.3d 835, 844 (5th Cir. 2018) (quoting Gates v. Strain, 885 F.3d 874, 883 (5th Cir. 2018); further citation omitted). These are long standing requirements recognized in this Circuit. Rogers v. Kroger Co, 669 F.2d 317, 320 (5th Cir. 1982) (“This circuit has consistently held that Rule 41(b) dismissals with prejudice will be affirmed only upon a showing of a clear record of delay or contumacious conduct by the plaintiff, …, and where lesser sanctions would not serve the best interests of justice.”) (collecting cases; internal quotes omitted); Gonzalez, 610 F.2d at 247 (“we have consistently held that dismissal with prejudice is warranted only where a clear record of delay or contumacious conduct by the plaintiff exists, . . . and a lesser sanction would not better serve the interests of justice.”) (collecting cases; quotation marks omitted). “Because this test is conjunctive, both elements must be present.” Coleman v. Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (footnote omitted).

“In addition, [the appeals court] generally affirm[s] dismissals with prejudice only upon a finding of at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.’” Coleman, at 766 n. 9 (quoting Price v. McGlathery, 792 F.2d 472, 474 (5th Cir.1986)); see also Millan v. USAA Gen. Indem. Co., 546 F.3d 321, 326 (5th Cir. 2008) (“where this Court has affirmed dismissals with prejudice, it has generally found at least one of three aggravating factors: ‘(1) delay caused by [the] plaintiff himself and not his attorney; (2) actual prejudice to the defendant; or (3) delay caused by intentional conduct.’”) McGlathery, 792 F.2d at 474). Put another way, “[b]efore an action can be dismissed with prejudice under Rule 41(b), two ‘requisite’ factors must be present and a third ‘aggravating’ factor usually should be present.” Springboards to Educ., Inc. v. Kipp Found., 325 F. Supp. 3d 704, 710 (N.D. Tex. 2018) (quoting Sealed Appellant v. Sealed Appellee, 452 F.3d 415, 417-18 (5th Cir. 2006)).

“Generally, where a plaintiff has failed only to comply with a few court orders or rules, [the appeals court has] held that the district court abused its discretion in dismissing the suit with prejudice.” Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188, 1192 n.6 (5th Cir. 1992) (collecting cases); see also Vafaiyan v. Target Inc., 251 F. App’x 862, 864 (5th Cir. 2007) (quoting same and finding that dismissal was abuse of discretion where plaintiff failed to correct deficiency).

The Objecting Plaintiffs’ cases cannot be dismissed with prejudice for three, independent reasons: 1) a clear record of delay or contumacious conduct does not exist; 2) lesser sanctions would serve the best interests of justice; 3) there are no aggravating factors, making this remedy impermissibly draconian.

Plaintiffs are not guilty of clear delay or contumacious conduct.

“[D]elay which warrants dismissal with prejudice must be longer than just a few months; instead, the delay must be characterized by significant periods of total inactivity.” Bullard v. Burlington N. Santa Fe Ry. Co., 368 F. App’x 574, 581 (5th Cir. 2010) (quoting Millan v. USAA Gen. Indem., supra, 546 F.3d at 326-27; further citation and quotation marks omitted). The Bullard court found that, notwithstanding the district court’s evident frustration with plaintiffs, the court could not affirm a de facto dismissal with prejudice because there was an insufficient record of contumacious conduct. 368 F. App’x at 581-82. The court explained that “it is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious.” 368 F. App’x at 581 (quotingMillan, 546 F.3d at 327).

The Coleman court reversed a dismissal with prejudice where the plaintiff failed to provide an address for the defendant, explaining that “negligent behavior” fails to rise to the level of material delay or contumacious conduct so as to justify dismissal with prejudice. 745 F.3d at 767. The Millan court similarly reversed dismissal, where the plaintiff failed to effect timely service, explaining that, “it is not a party’s negligence—regardless of how careless, inconsiderate, or understandably exasperating—that makes conduct contumacious; instead it is the ‘stubborn resistance to authority’ which justifies a dismissal with prejudice.” 546 F.3d at 327 (quoting McNeal v. Papasan, 842 F.2d 787, 792 (5th Cir.1988); further citation omitted).

The Gonzalez court reversed the trial court’s dismissal, reasoning that, “[t]he failure of plaintiffs counsel to obtain admission to the bar of court and to appear at the pre-trial conference did not amount to a clear record of delay or contumacious conduct.” 610 F.2d at 248 (quotation marks omitted). See also Hurman v. Port of Houston Authority, 990 F.2d 626 (5th Cir. 1993) (district court abused its discretion by involuntarily dismissing suit for failure to prosecute where plaintiff had failed to file a pretrial order and had failed to appear at docket call); Mosher v.

Keanster, 343 F. App’x 994, 995 (5th Cir. 2009) (failure to appear for a scheduling conference did not warrant dismissal; dismissal vacated and remanded).

Dismissal with prejudice does not serve the best interests of justice.

Even assuming for the sake of argument that the plaintiffs’ omissions could be characterized as “contumacious,” this does not compel the conclusion that the conduct requires immediate resort to the harshest of sanctions. Raborn v. Inpatient Mgmt. Partners Inc., 278 F. App’x 402, 406 (5th Cir. 2008) (“Even if it could be characterized as ‘contumacious,’ it is not the type of conduct that requires immediate resort to ‘the harshest of sanctions….’”) (quoting Porter v. Beaumont Enterprise and Journal, 743 F.2d 269, 272 (5th Cir.1984)). Failure to comply with a district court order does not establish that a lesser sanction would be futile. See Campbell v. Dretke, 261 F. App’x 702, 704 (5th Cir. 2008) (where plaintiff failed to comply with court order to re-file his complaint in compliance with proper form, court vacated and remanded dismissal, noting that there was no determination that lesser sanctions would not prompt diligent prosecution).

No aggravating factors exist.

There is no basis for finding that the victims of Xarelto have caused the delay here, or that they have acted intentionally. In stark contrast, they are not aware of the proceedings and/or are unable to complete the requisite paperwork due to factors other than intentional recalcitrance. See Exhibit 1, Declaration of Charlotte Long. Exhibit 1-A hereto identifies efforts to reach Objecting Plaintiffs, illustrating that their failure to comply with the Court-ordered procedures is not deliberate, and that the strong majority of these cases have only been on file for approximately six months. Exhibit 1-B hereto identifies Objecting Plaintiffs who intend to make an election that has been communicated to Brown Greer, but whose response has been deemed deficient. Under these circumstances, dismissal with prejudice as a penalty for failing to comply with the procedural requisites of the Show Cause order would be unduly harsh.

There is no showing of prejudice to the Defendants. The mere fact that reinstatement of the plaintiff’s case will require defendants to “expend funds necessary to present a defense” is not sufficient to establish prejudice. Raborn, 278 F. App’x at 407 (court abused its discretion in dismissing claim effectively with prejudice). See also Raymond v. Univ. of Houston, 275 F. App’x 448, 450 (5th Cir. 2008) (finding no aggravating factor and reversing dismissal notwithstanding negligence and a period of inactivity from April 16, 2006 to November 27, 2006; and from January 10, 2007 to March 26, 2007).

Because There Is No Certified Class, There Is No Obligation for Plaintiffs in Individually Filed Cases to Respond to a Global Settlement Agreement that Was Not Entered in, and Is Not Specific to, Them or Any of their Individual Cases.

Here, each Plaintiff has filed an individual case. The settlement is not a class action settlement. Moreover, there are serious constitutional impediments to certifying a class of individuals who have sustained personal injuries and/or death. See, generally, Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997); Ortiz v. FibreboardCorp., 527 U.S. 815 (1999).

In the absence of a certified class, the settlement documents at issue are not binding on these individual plaintiffs. Indeed, the Objecting Plaintiffs are non-parties to the settlement. The Defendants in the individually filed cases have not filed or presented a settlement offer addressed to, tailored to, or specific to the individual Objecting Plaintiffs or their cases. The settlement provides a grid. The Objecting Plaintiffs have not been informed where, on that grid, they fall according to the Defendants and according to BrownGreer. Therefore, there is no sum certain offer made to them at this time. There is no authority allowing dismissal as a penalty for failing to complete certain paperwork, to BrownGreer’s satisfaction, in response to a settlement offer that was not entered into the individual cases.

The Procedural Requirements Are Akin to Imposing an Opt-In Class Requirement, which Is Forbidden.

The Show Cause orders seek to punish the Objecting Plaintiffs for not satisfying the procedural requirements of a one-sided settlement offer that was not specifically directed toward any of the Objecting Plaintiffs, or their cases, individually. The law does not allow for certification of an “opt in” class imposing procedural hoops for class inclusion. Ackal v. Centennial Beauregard Cellular L.L.C., 700 F.3d 212, 216 (5th Cir. 2012) (quoting Kern v. Siemens Corp, 393 F.3d 120, 124 (2d Cir. 2004)). See also Clark v. Universal Builders, Inc., 501 F.2d 324, 340 (7th Cir. 1974) (“The requirement of an affirmative request for inclusion in the class is contrary to the express language of Rule 23(c)(2)(B).”); Shepardson v. Midway Indust., Inc., No. 3:18-CV-3105, 2019 WL 2743435, at *3 (W.D. Ark. July 1, 2019) (citing Ackal and Clark, and refusing to approve class settlement and notice); Dallas County, Tex. v. MERSCORP, Inc., 2012 WL 6208385, No. 3:11-cv-02733-0 (N.D. Tex. Dec. 13, 2012) (denying certification and citing Ackal as controlling authority); Maciel v. Bar 20 Dairy, LLC, No. 117CV00902DADSKO, 2018 WL 5291969, at *8 (E.D. Cal. Oct. 23, 2018) (applying Ackal, Kern, and Clark, and rejecting the plaintiffs’ argument that class members could be required to opt in to the Rule 23 action). The failure of the Objecting Plaintiffs to comply with the procedural hoops promulgated in this Court’s orders cannot be a basis for dismissal, because this is akin to imposing affirmative procedural actions to “opt in” to a class.

  1. The Appearance of Counsel at the Hearing Should Be Sufficient.

The Objecting Plaintiffs are elderly individuals in ill health, and it would not be easy, if even possible, for them to travel to New Orleans for a hearing. See Exhibit 1, Declaration of Charlotte Long. Even were each Objecting Plaintiffs’ individual case subject to a pretrial conference in his or her individual case, under Federal Rule of Civil Procedure 16, “the court may order the attorneys and any unrepresented parties to appear for one or more pretrial conferences.” FED. R. CIV. P. 16(a) (emphasis added). “If appropriate, the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement.” Fed. R. Civ. P. 16(c)(1) (emphasis added). The Court’s Show Cause orders do not accept reasonable availability in that they require personal presence. This is not appropriate, particularly considering that the Defendants have not appeared in their individual cases to make an individual settlement offer in the first instance. Moreover, dismissal with prejudice is an unduly draconian penalty for a failure to appear in person. See, e.g., Hurman v. Port of Houston Authority, 990 F.2d 626 (5th Cir. 1993) (district court abused its discretion by involuntarily dismissing suit for failure to prosecute where plaintiff had failed to file a pretrial order and had failed to appear at docket call).

CONCLUSION AND PRAYER FOR RELIEF.

Wherefore, Objecting Plaintiffs on the attached Exhibit 1 respectfully request that this Honorable Court not dismiss their actions with prejudice, and for such other relief to which they may be entitled.

The case law cited in the motion can be accessed at the links below:

Amchem Products, Inc. v. Windsor

521 US 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 – Supreme Court, 1997 – Google Scholar

The United States District Court for the Eastern District of Pennsylvania certified the class for
settlement only, finding that the proposed settlement was fair and that representation and notice
had been adequate. That court enjoined class members from separately pursuing asbestos-related
personal-injury suits in any court, federal or state, pending the issuance of a final order. The Court
of Appeals for the Third Circuit vacated the District Court’s orders, holding that the class certification
failed to satisfy Rule 23’s requirements in several critical respects. We affirm the Court of …

Cited by 7392 How cited Related articles All 3 versions

 

Ortiz v. Fibreboard Corp.

527 US 815, 119 S. Ct. 2295, 144 L. Ed. 2d 715 – Supreme Court, 1999 – Google Scholar

Like Amchem Products, Inc. v. Windsor, 521 US 591 (1997), this case is a class action prompted
by the elephantine mass of asbestos cases, and our discussion in Amchem will suffice to show
how this litigation defies customary judicial administration and calls for national legislation.
[1] In 1967, one of the first actions for personal asbestos injury was filed in the United States District
Court for the Eastern District 822 of Texas against a group of asbestos manufacturers. App. to
Pet. for Cert. 252a. In the 1970’s and 1980’s, plaintiffs’ lawyers throughout the country, particularly …

Cited by 2364 How cited Related articles All 3 versions

 

Ackal v. Centennial Beauregard Cellular LLC

700 F. 3d 212 – Court of Appeals, 5th Circuit, 2012 – Google Scholar

On September 11, 2001, a group of cellular telephone customers filed suit in Louisiana state
court against its members’ respective service providers, including Defendants-Appellants Centennial
Beauregard Cellular LLC and its related entities (“Centennial“). The suit — which alleges causes …

Cited by 13 How cited Related articles All 2 versions

 

Kern v. Siemens Corp.

393 F. 3d 120 – Court of Appeals, 2nd Circuit, 2004 – Google Scholar

Rudolph KERN, And on behalf of the Estate of Erich Kern, Angela Kern, And on behalf of the
Estate of Erich Kern, John S. Habblett, LTC (Ret.), and on behalf of the Estates of Jennifer Kirkpatrick
Habblett Goodridge, Michael Jonclair Goodridge and Kyle William Goodridge, Suzanne K …

Cited by 91    How cited Related articles

 

 

Clark v. Universal Builders, Inc.

501 F. 2d 324 – Court of Appeals, 7th Circuit, 1974 – Google Scholar

… 1970), cert. denied, Universal BuildersIncvClark, 400 US 821, 91 S.Ct. 40, 27 L.Ed.2d
49 (1970) … Diamond v. Terminal Railway Alabama State Docks, 421 F.2d 228, 235-236 (5th
Cir. 1970) … [1] The builder of the homes was Universal BuildersInc …

Cited by 367 How cited Related articles

 

Clark v. Universal Builders, Inc.

706 F. 2d 204 – Court of Appeals, 7th Circuit, 1983 – Google Scholar

… See Clark, 501 F.2d at 337-39 … V … [1] Because of our acceptance of the district court’s finding as
to lack of comparability, we need not reach defendants’ contention that the Deerfield homes were
sold by a company which was not a predecessor of the defendant Universal …

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Clark v. Universal Builders, Inc.

409 F. Supp. 1274 – Dist. Court, ND Illinois, 1976 – Google Scholar

… The Court of Appeals, in Clark vUniversal BuildersInc., 501 F.2d 324 (7th Cir. 1974), reversed
Judge Perry and accepted Judge Will’s “exploitation theory” of § 1982 … Clark vUniversal
BuildersInc., 419 US 1070, 95 S.Ct. 657, 42 L.Ed.2d 666 (1974)) …

Cited by 26 How cited Related articles

 

Shepardson v. MIDWAY INDUSTRIES, INC.

Dist. Court, WD Arkansas, 2019 – Google Scholar

… the classes’ FLSA and AMWA claims, the Settlement Agreement notes that Midway agrees to …
being allocated to settlement class members, $2,000.00 being allocated to Dale Shepardson
as a … See, eg, Thompson v. Costco Wholesale Corp., 2017 WL 697895, at *8 (SD Cal. Feb …

 

Shepardson v. MIDWAY INDUSTRIES, INC.

Dist. Court, WD Arkansas, 2019 – Google Scholar

DALE SHEPARDSON, Individually and on Behalf of All Others Similarly Situated Plaintiff,
vMIDWAY INDUSTRIESINC.; TOOL STEEL SERVICE, INC; and TOOL STEEL SERVICE
OF CALIFORNIA, INC., Defendants. Case No. 3:18-CV-3105 …

 

Gonzalez v. Firestone Tire & Rubber Co.

610 F. 2d 241 – Court of Appeals, 5th Circuit, 1980 – Google Scholar

610 F.2d 241 (1980). Herman GONZALEZ, etc., Plaintiff-Appellant, vFIRESTONE TIRE &
RUBBER CO. et al., Defendants-Appellees. No. 77-3170. United States Court of Appeals, Fifth
Circuit. January 21, 1980. 242 David T. Lopez, Houston, Tex., for plaintiff-appellant …

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Gonzalez v. Firestone Tire & Rubber Co.

512 F. Supp. 1101 – Dist. Court, ED Texas, 1981 – Google Scholar

… within 90 days of the second right to sue letter, and that it was an abuse of discretion to dismiss
the plaintiff’s Section 1981 claim because his neglect did not amount to a “`clear record of delay
or contumacious conduct.'” Gonzalez vFirestone Tire & Rubber Co., 610 F.2d 241 …

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Griggs v. SGE MANAGEMENT, LLC

905 F. 3d 835 – Court of Appeals, 5th Circuit, 2018 – Google Scholar

… If the district court had not dismissed the case, it is unlikely that the parties would have understood
that Grigg’s response to … district court was well within its discretion to dismiss this case for want
of prosecution in response to Griggs’s disobedience to … [1] See Torres vSGE Mgmt …

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Griggs v. SGE MANAGEMENT, LLC

Court of Appeals, 5th Circuit, 2018 – Google Scholar

… If the district court had not dismissed the case, it is unlikely that the parties would have understood
that Grigg’s response to … district court was well within its discretion to dismiss this case for want
of prosecution in response to Griggs’s disobedience to … [1] See Torres vSGE Mgmt …

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Maciel v. BAR 20 DAIRY, LLC

Dist. Court, ED California, 2018 – Google Scholar

… Bar 20 DairyLLC, a California limited liability company, Defendant, represented by Jared Hague,
Sutton Hague Law Corporation, PC, Joseph Vidal Macias, Sutton Hague Law Corporation, PC,
S. Brett Sutton, Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson …

 

Maciel v. BAR 20 DAIRY, LLC

Dist. Court, ED California, 2019 – Google Scholar

… Bar 20 DairyLLC, a California limited liability company, Defendant, represented by Jared Hague,
Sutton Hague Law Corporation, PC, Joseph Vidal Macias, Maxim Integrated Products, Inc., S.
Brett Sutton, Sutton Hague Law Corporation, PC & Wesley Lawrence Carlson, Sutton …

Coleman v. Sweetin

745 F. 3d 756 – Court of Appeals, 5th Circuit, 2014 – Google Scholar

Freddie R. COLEMAN, Plaintiff-Appellant v. David SWEETIN; Gregory Oliver; Richard
Cowan; Roy Brown, Sued in his official and individual capacity; Shelia Dale, Sued in her official
and individual capacity; Mae Cobbs, Sued in her official and individual capacity; Debbie
Erwin, Sued in her official and individual capacity; Craig Fisher, Sued in his official and individual
capacity; Blake Lamb, Sued in his official and individual capacity; Unknown McManus, Sued
in her official and individual capacity; Brenda Hough, Sued in her official and individual …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

The lawsuit concerns the Plaintiff falling in the shower and his efforts to obtain medical care for
his injuries. The Plaintiff initially fell in the shower at the Eastham Unit trusty camp on June
14, 2009. He fell again in the same shower on June 20 and June 23, 2009. He testified that the
floor to the shower was slimy and unsafe. Before he ever fell, he submitted letters (“I-60s”) to
Maintenance Specialist Richard Cowan and Maintenance Supervisor Roy Brown about the conditions
in the showers, but they did not take steps to correct the problem. Wardens Sweetin and Oliver …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
was given twenty days from the receipt of the order to comply with it. He was informed that the
claims against McManus would possibly be dismissed if he failed to comply with the order. The
Court received an acknowledgment from the Plaintiff indicating that he received the order on
October 12, 2011. The Plaintiff was obligated to provide the current address for McManus by
November 1, 2011. He has not, however, provided her current address … On October 24 …

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Port of Houston Auth. v. INTERNATIONAL ORG. OF M., M. & P.

456 F. 2d 50 – Court of Appeals, 5th Circuit, 1972 – Google Scholar

… Bertram Perkel, New York City, Herman Wright, W. Arthur Combs, Houston, Tex., Schulman,
Abarbanel, Perkel … The exception sought by the Port Authority here is not within any existing
exception and is … freely to come with their vessels and cargoes to all places, ports and waters …

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Mosher v. KEANSTER

Dist. Court, SD Texas, 2010 – Google Scholar

Pending before the Court is pro se Plaintiff Gary Mosher’s (“Mosher“) motion for recusal.
(Doc. 36.) Also before the Court is pro se Defendant Douglas Jones’ (“Jones”) motion to dismiss
(Doc. 6), as well as Plaintiff Mosher’s response (Doc. 9) and Jones’ reply (Doc. 10). Although …

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Mosher v. KEANSTER

Dist. Court, SD Texas, 2010 – Google Scholar

Although Mosher’s motion for reconsideration requests relief pursuant to Rule 60 of the Federal
Rules of Civil Procedure, because Mosher filed his motion for reconsideration within twenty-eight
days of the Court’s order dismissing the case, the Court will apply the more liberal standard of …

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Mosher v. KEANSTER

Court of Appeals, 5th Circuit, 2011 – Google Scholar

The timing of Mosher’s notice of appeal raises an issue regarding this court’s jurisdiction, which
we must examine sua sponte. See Bailey v. Cain, 609 F.3d 763, 765 (5th Cir. 2010), cert.
denied, 131 S. Ct. 931 (2011). In a civil case, the filing of a timely notice of appeal is a jurisdictional …

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Mosher v. KEANSTER

Court of Appeals, 5th Circuit, 2009 – Google Scholar

We review a sua sponte dismissal for want of prosecution, which is authorized by Rule 41 of
the Federal Rules of Civil Procedure, for abuse of discretion. See McNeal v. Papasan, 842
F.2d 787, 789-90 (5th Cir. 1988). Because the judgment of dismissal did not specify whether …

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Dallas County, Tex. v. MERSCORP, INC.

2 F. Supp. 3d 938 – Dist. Court, ND Texas, 2014 – Google Scholar

Before the Court are the parties’ cross-motions for summary judgment filed November 12,
2013, on Plaintiffs’ request that this Court issue a declaratory judgment interpreting Section 192.007
of the Texas Local Government Code, the only remaining claim in this lawsuit. See Plaintiffs Harris …

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Coleman v. Sweetin

745 F. 3d 756 – Court of Appeals, 5th Circuit, 2014 – Google Scholar

Freddie R. COLEMAN, Plaintiff-Appellant v. David SWEETIN; Gregory Oliver; Richard
Cowan; Roy Brown, Sued in his official and individual capacity; Shelia Dale, Sued in her official
and individual capacity; Mae Cobbs, Sued in her official and individual capacity; Debbie
Erwin, Sued in her official and individual capacity; Craig Fisher, Sued in his official and individual
capacity; Blake Lamb, Sued in his official and individual capacity; Unknown McManus, Sued
in her official and individual capacity; Brenda Hough, Sued in her official and individual …

Cited by 147 How cited Related articles All 2 versions

Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

The lawsuit concerns the Plaintiff falling in the shower and his efforts to obtain medical care for
his injuries. The Plaintiff initially fell in the shower at the Eastham Unit trusty camp on June
14, 2009. He fell again in the same shower on June 20 and June 23, 2009. He testified that the
floor to the shower was slimy and unsafe. Before he ever fell, he submitted letters (“I-60s”) to
Maintenance Specialist Richard Cowan and Maintenance Supervisor Roy Brown about the conditions
in the showers, but they did not take steps to correct the problem. Wardens Sweetin and Oliver …

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Coleman v. Sweetin

Dist. Court, ED Texas, 2011 – Google Scholar

On October 5, 2011, the Plaintiff was ordered to submit the current address for McManus. He
was given twenty days from the receipt of the order to comply with it. He was informed that the
claims against McManus would possibly be dismissed if he failed to comply with the order. The
Court received an acknowledgment from the Plaintiff indicating that he received the order on
October 12, 2011. The Plaintiff was obligated to provide the current address for McManus by
November 1, 2011. He has not, however, provided her current address … On October 24 …

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Read More

Xarelto Settlement Not So Fast Gentlemen

Those Aggrieved by the Proposed Xarelto Settlement

May Still Get a Chance to be Heard

Thus far firms representing absent plaintiffs (those not represented by leadership) have yet to be given an opportunity to be heard by the court regarding any aspect of the proposed Xarelto settlement.  I previously addressed this issue in another article.

https://www.masstortnexus.com/mass-torts-news/xarelto-settlement-judicial-activism-vs-judicial-tyranny/

Due Process Refresher 

The Fifth and Fourteenth Amendments to the United States Constitution each contain a due process clause. Due process deals with the administration of justice and thus the due process clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses broadly, concluding that these clauses provide four protections: procedural due process (in civil and criminal proceedings), substantive due process.

The core of these requirements is notice and a hearing before an impartial tribunal.

Fuentes v. Shevin, 407 U.S. 67, 81 (1972). At times, the Court has also stressed the dignitary importance of procedural rights, the worth of being able to defend one’s interests even if one cannot change the result.

Mathews v. Eldridge, 424 U.S. 319, 333 (1976). “Parties whose rights are to be affected are entitled to be heard.” Baldwin v. Hale, 68 U.S. (1 Wall.) 223, 233 (1863).

Picking Up Where We Left Off

Without Regard to the points made in the prior article, even if the proposed Xarelto settlement agreement reaches the required participation numbers, it should not be a done deal. For Judge Fallon to grant specific common benefit fee requests, it will arguably be necessary to form a “Settlement Class Action” under FRCP 23. Once this occurs, his honor will not have the option of ignoring FRCP 23(e), the requirement to conduct fairness hearings before final approval of the settlement. This will be the time at which firms representing absent plaintiffs may get their chance to be heard and I believe these firms will have much to say.

If Judge Fallon allows the proposed Xarelto settlement to impact plaintiffs, without ever having engaged in any act to protect the rights of absent parties, this egregious failure may well define his legacy, overshadowing and otherwise admirable judicial career.

Note: Nothing would prevent a firm representing a non-settling client from moving to form a Class Action for non-settling plaintiffs, aggrieved by the settlement.

Due to the fact that the proposed Xarelto Settlement did not follow the “opt in” reasoning (see article by Judge Fallon below), the only way the necessity of creating a settlement class could be avoided would be if 100% of all Xarelto plaintiffs accepted the settlement. Even under this circumstance, jurisdictional issues would still exist. I will address this subject more thoroughly later in this article.  First, I will cover recent developments.

Latest Spin on the Xarelto Settlement

I have learned that leadership claims that 26,000 enrollment packages have been received by Brown Greer and they are very confident that they will reach 98% participation. MTN can not verify leaderships statements with Brown Greer as they seem to have been gagged by leadership. Regardless, the proposed settlement only covered 25,000 plaintiffs. The total number of complaints on file in the MDL and Philadelphia Court of Common Pleas has ballooned to over 31,339 plaintiffs since the proposed settlement was first announced. The foregoing begs the question “98% of what”.  26,000 is 82.96% of 31,339. If we take leadership at their word and believe 26,000 plaintiffs have accepted the settlement, then we must assume that the settlement is going to include more than 25,000 plaintiffs and base on “participation calculus” on the total number of cases on file, which is at least 31,339.

Settling 26,000 cases would leave 5339 remaining. I do not believe that the defendants can sell a settlement to their stockholders that leaves 5339 cases (unknown risks) unresolved.

A reliable source has informed me that the “98% participation claim” was based on 98% of the 70% of plaintiffs that have returned the enrollment package, not 98% of all plaintiffs. Maybe leadership is counting on using the “dismissal machine” they have arguably created in co-operation with defense, to get rid of the non-enrollers and therefore do not think these plaintiffs need be counted.

Though I can not verify the foregoing (Brown Greer gagged), I believe the 26,000-enrollment number may be significantly exaggerated or at minimum skewed. Leading non leadership firms to believe the proposed settlement will consummate would be a good way to get firms reluctant to encourage plaintiffs to except the settlement to change course. A self-fulfilling prophecy (stated as fact) if you will.

The Chance and Right to be Heard

I stated, in the previous article (link above) that Judge Fallon arguably lacks subject matter jurisdiction to issue orders related to an MDL settlement. I also stated that since Judge Fallon is an MDL judge that subscribes to the MDLs as Quasi  Class Actions theory and therefore should have held FRCP 23(e) fairness hearings before or currently with issuing in order related to settlement as His Honor did in Vioxx and other MDLs in the past.

Putting aside the above, absent Xarelto plaintiffs (those not represented by leadership firms) may still have a chance to be heard.

How an MDL Judge can properly involve  themselves in settlement:

  1. Plaintiff Leadership and Defense reach a settlement agreement without seeking orders from the court.
  2. Plaintiff Leadership presents the settlement to firms representing absent plaintiffs and if enough those plaintiffs opt into the settlement to meet the required participation threshold, then the settlement can be consummated (only for those that opted in).
  3. Only after the foregoing, would it be proper for the court to become involved. Plaintiff Leadership and Defense can present the consummated agreement (with all opt ins) to the Judge and seek to form a Settlement Class Action (under FRCP 23).

Obviously the ship has sailed with regard to Judge Fallon conducting FRCP 23(3) fairness hearings before or concurrently with issuing orders related to settlement however, it would be inconceivable for His Honor to issue orders granting specific Leadership and PSC Firms common benefit fees without a “Settlement Class Action” being formed.

Why? Without a Settlement Class Action in place, Judge Fallon will have no control over or authority to grant any order related to the global proceeds of the mass settlement.

The Opportunity to Be Heard- Finally?

If the proposed Xarelto Settlement reaches the required participation numbers and is consummated, Judge Fallon will only be able to take control of the global proceeds (in order to grant common benefit fees) via a Settlement Class Action. This will be the point at which firms representing absent plaintiff firms will (as required FRCP 23(e) to be heard). If Judge Fallon neglects to conduct fairness hearings before granting fees, an appellate court is likely to overturn any order granting common benefit fees.

The link below is from a 9th Circuit in the Hyundai Kia MDL. A settlement was reached in this MDL and a Settlement Class Action was granted by the MDL Judge. Suit was filed by firms representing absent plaintiffs related to the common benefit fees awarded arising from the settlement. The

https://www.consumerfinancialserviceslawmonitor.com/wp-content/uploads/sites/501/2019/06/In-re-Hyundai.pdf

Excerpts from Ruling:

On December 23, 2013, the settling parties sought preliminary approval of the nationwide class settlement and moved to certify a settlement class. The district court ordered multiple rounds of briefing concerning the fairness of the settlement, sufficiency of the class notice, the claims process, class certification, choice of law, and other issues. At four hearings held between December 2013 and August 2014, the parties addressed concerns raised by the court sua sponte as well as by objectors and other non-settling plaintiffs. In response to these concerns, the settling parties twice revised the settlement agreement and notice provisions.

After issuing several detailed written rulings, the district court granted preliminary approval of the settlement and certified the class for settlement purposes on August 29, 2014. The court appointed Hagens Berman and McCuneWright as settlement class counsel. In September and October 2014, the district court held four additional hearings, at which it requested that the parties make additional changes to the settlement notices and website, such as adding information about the Reimbursement Program, and rewording the notices to make them easier to understand.

A binding settlement must provide notice to the class in a “reasonable manner” and otherwise be “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1), (2)

Before the district court approves a class settlement under Rule 23(e), it is “critical” that class members receive adequate notice. Hanlon, 150 F.3d at 1025. To satisfy Rule 23(e)(1), settlement notices must “present information about a proposed settlement neutrally, simply, and understandably.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 962 (9th Cir. 2009). “Notice is satisfactory if generally describes the terms of the settlement in sufficient detail to alert those with adverse viewpoints to investigate and to come forward and be heard.’” Id. (quoting Churchill Vill., LLC v. Gen. Elec., 361 F.3d 566, 575 (9th Cir. 2004)).

Rule 23(e) ensures that unnamed class members are protected “from unjust or unfair settlements affecting their rights.” Amchem, 521 U.S. at 623 (1997).

Over the course of several years, the district court performed an admirable job of managing this complex litigation. After the settlement was announced, the district court held multiple status conferences and requested several rounds of briefing to ensure that all of the litigants’ concerns were heard and addressed.

Note: The 9th circuit ruling leave little doubt that had the settlement court failed to comply with FRCP 23(e), that courts grant of attorney’s fees  to “Class Counsel”  would not have withstood appeal.

End Excerpts

 

 

Moving Forward -Two Possible Outcomes

  1. Judge Fallon moves forward with a settlement class (if the settlement consummates) without the required FRCP 23 (e) fairness hearings, in which case any grant of common benefit fees arising from the court would likely be overturned on appeal.

 

  1. Judge Fallon moves forward with a settlement class and does (as required) conduct fairness hearings per FRCP 23(e). Although belated, this would give firms representing absent class members to object to the terms of the settlement as well as any common benefit fees being awarded from the settlement proceeds. Even those plaintiffs that rejected the settlement or were subject to dismissal arising from a settlement related order would arguably have standing (the right to be heard).

 

  1. Leadership Self-Dealing (subject of a future article).
  2. Leadership Conclusion with defense to create a “dismissal machine.
  3. Unwarranted Discounts.
  4. Overly Complex processes created by settlement orders, leading to denial of due process.
  5. Settlement related orders issued absent jurisdiction over the subject matter.

The article below, written by Judge Fallon

COMMON BENEFIT FEES IN MULTI-DISTRICT LITIGATION

https://judicialstudies.duke.edu/sites/default/files/centers/judicialstudies/mdl2014/Common_Benefit_Fees.pdf

By: The Honorable Eldon E. Fallon

Note:. In the article, Judge Fallon, as he has on numerous occasions, referred to “private mass tort settlements” as opt in (vs class actions which are opt outs). His Honors reference to these settlements as Opt In vs Opt Out seems to imply that his jurisdiction over settlement arises from the agreement of the parties that Opt In. By Implication this would mean that any party that does not opt in should not be negatively impacted by the given settlement. This has obviously not held true in the proposed Xarelto Settlement.

The following excerpt from the article by His Honor express the same view he expressed in Vioxx, which involved a settlement very similar to the proposed Xarelto Settlement (with 4 billion additional dollars for roughly the same number of plaintiffs) . In Vioxx, Judge Fallon conducted the Rule 23(e) hearing he references below to allow absent plaintiffs a voice in the settlement. I have yet to discern why His Honor believes Xarelto plaintiffs are less deserving of due process than Vioxx Clients.

Excerpt

The argument used by the courts supporting their equitable authority to review attorneys fees is that Rule 23 of the Federal Rules of Civil Procedure expressly provides that a district court presiding over a class action has a duty to scrutinize the attorneys fees of class counsel to assure that they are reasonable. The transferee judge in MDLs should have the same responsibility because MDLs are quasi class actions since their purpose and function is the same as the traditional class action namely efficiency and coordination before a single court. Furthermore, many MDLs contain multiple class actions along with the individual claims and it is not unusual to utilize the settlement class vehicle provided by Rule 23(e) to resolve the entire Thus Rule 23 is often an integral part of the MDL process.

End Excerpt

 

Has Judge Fallon Became to Chummy with Xarelto Leadership?

Just out of curiosity I have submitted a Form A0 10A to the Judicial Committee on Financial Disclosures, requesting Judge Fallon’s financial disclosures for 2013-2018. I already have copies of his disclosures through 2012 and His Honor discloses that his travel and other expenses are paid by third parties when he attended conferences 2012 and prior. I am curious to find out if MTMP paid Judge Fallon’s expenses when he attended MTMP conferences over the past few years. Paying for trips to lavish resorts in sin city for a Federal Judge before whom a firm currently has matters subject to litigation, is something I find worth exploring.

 

Required Reading for those wanting to improve their knowledge of all things MDL settlement.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

But this book, it may shock even the most cynical!

https://www.amazon.com/Mass-Tort-Deals-Bargaining-Multidistrict-ebook/dp/B07S7DMN7Z

By: Elizabeth Chamblee Burch

Elizabeth Chamblee Burch is the Fuller E. Callaway Chair of Law at the University of Georgia. Her teaching and research interests include mass torts, class actions, and civil procedure. She has been a Visiting Professor at Harvard Law School.

Other worthwhile reading authored by Professor Burch:

Monopolies in Multidistrict Litigation

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2113&context=fac_artchop

Repeat Players in Multidistrict Litigation

https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?article=4737&context=clr

DISAGGREGATING

https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=6002&context=law_lawreview

Judging Multidistrict Litigation 

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1993&context=fac_artchop

Morphing Case Boundaries in Multidistrict Litigation Settlements

By: Margaret S. Thomas

http://law.emory.edu/elj/_documents/volumes/63/6/responses/thomas.pdf

About Professor Thomas: https://www.law.lsu.edu/directory/profiles/margaret-s-thomas/

 

Once Size Doesn’t Fit All: Multidistrict Litigation, Due Process and the Dangers of Procedural Collectivism

http://www.bu.edu/bulawreview/files/2015/02/REDISH.pdf

By: MARTIN H. REDISH & JULIE M. KARABA

Martin H. Redish is the Louis and Harriet Ancel Professor of Law and Public Policy at the Northwestern University Pritzker School of Law. Redish has written 19 books and over a hundred law review articles in the areas of civil procedure and constitutional law.

About Professor Redish: http://www.law.northwestern.edu/faculty/profiles/MartinRedish/

Julie Karaba (Siegal is) currently a Clerk for Chief Justice John Roberts, United States Supreme Court.

https://www.sesp.northwestern.edu/news-center/news/2018/03/sesp-alumna-to-clerk-for-chief-justice-of-the-united-states-john-g.-roberts,-jr..html

 

Judicial Review of Private Mass Tort Settlements

By: Jeremy T. Grabill

https://scholarship.shu.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1418&context=shlr

About Jeremy Grabill: https://www.phelps.com/jeremy-grabill

TAKING A SECOND LOOK AT MDL PRODUCT LIABILITY SETTLEMENTS: SOMEBODY NEEDS TO DO IT

https://kuscholarworks.ku.edu/bitstream/handle/1808/25557/Mueller_FINAL.pdf;jsessionid=DFE28872C148C01DAF73FED1CD91E292?sequence=1

By: Christopher B. Mueller

About Professor Mueller: https://lawweb.colorado.edu/profiles/profile.jsp?id=38

 

DUBIOUS DOCTRINES: THE QUASI-CLASS Action

https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1095&context=uclr

By: Linda S. Mullenix

 

AGGREGATE LITIGATION AND THE DEATH OF DEMOCRATIC DISPUTE RESOLUTION

https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=1063&context=nulr

Also by: Linda S. Mullenix

About Professor Mullenix: https://law.utexas.edu/faculty/linda-s-mullenix

Books by Professor Mullenix: https://www.amazon.com/Linda-S.-Mullenix/e/B001HML766

Managing Related Proposed Class Actions in Multidistrict Litigation

https://www.fjc.gov/sites/default/files/materials/21/Managing_Related_Proposed_Class_Actions_in_Multidistrict_Litigation.pdf

By: Catherine R. Borden

Government of the United States of America – Federal Judicial Center

GLOBAL SETTLEMENTS IN NON-CLASS MDL MASS TORTS

https://www.fjc.gov/sites/default/files/materials/21/Managing_Related_Proposed_Class_Actions_in_Multidistrict_Litigation.pdf

 

https://law.lclark.edu/live/files/25156-saackreadyforwebsitepdf

By: Amy L. Saack

About Amy Sacck: http://www.davisrothwell.com/attorney/amy-saack/

 

 

STANDARDS AND BEST PRACTICES FOR LARGE AND MASS-TORT MDLS

BOLCH JUDICIAL INSTITUTE, DUKE LAW SCHOOL

https://judicialstudies.duke.edu/wp-content/uploads/2018/10/standards_and_best_practices_for_large_and_mass-tort_mdls-Bolch-Judicial.pdf+

 

Disclaimer: The author of this article, John Ray, is not an attorney. Nothing in this article should be considered legal advice. The opinions expressed in this article are those of John Ray. Publication of this article by any third party should not be considered endorsement of nor agreement with the opinions expressed by the author.

Read More

Xarelto Settlement Judicial Activism vs Judicial Tyranny

Xarelto Proposed Settlement 

The death MDL settlements as we know and love them?

 

Foreword: Non leadership firms representing Xarelto plaintiffs facing potential dismissal from orders issued related to the proposed Xarelto settlement might find this article very beneficial.

Although it is still doubtful that the proposed Xarelto settlement will consummate, it appears that Judge Fallon is set to dismiss individual cases for failure to comply with orders arising from the proposed settlement. Such dismissals would arguably be ripe for appeal.

Spoiler Alert: MDL Judges arguably Lack Subject Matter Jurisdiction to issue orders arising from MDL settlements. Any case dismissed for failure to comply with an order issued absent jurisdiction over the subject matter giving rise to the order, would also be a juridical act undertaken without proper jurisdiction. Parties can not wave Subject Matter Jurisdiction, by act nor agreement. There is no time limit to file an appeal related to an order issued in the absence of jurisdiction over the Subject Matter. Orders issued lacking subject matter jurisdiction  are null from the onset and void on their face. Res Judicata does not apply to orders issued in want of jurisdiction over the subject matter.  See Citations of Relevant Law at the end of this article).

The Road to Hell and Good Intentions 

Certain well intended MDL Judges, including Judge Eldon Fallon have subscribed to the theory that “MDLs are Quasi Class Actions” and despite the fact the USC 1407 provides MDL judges with no jurisdiction to participate in MDL settlements, MDL judges could none the less exercised the powers of their court and involved themselves in MDL settlements, reasoning that MDLs are merely Quasi Class Actions. MDL judges ascribing to the “MDLs as Quasi Class Actions” theory have reasoned intra alia that  Federal Judges have jurisdiction over Class Action Settlements and therefore Federal Judges presiding over MDLs (Quasi Class Actions by their  reasoning) have the same jurisdiction as a Federal Judge Presiding over a Class Action, so long as they comply with the requirements of FRCP 23, in particular the requirements of FRCP 23(e) .

MDL Judges willing to arguably overstep their jurisdiction and exercise the power of their courts in MDL settlements, have justified doing so by  simultaneously complying with duties imposed under FRCP 23(e).

FRCP 23(e) requires Federal Judges presiding over Class Actions to conduct fairness hearings and approve any Class Settlement. These fairness hearings are intended in part to provide class action “absent plaintiff parties” protection from would be unscrupulous self-dealing lead class counsel.

Xarelto Settlement Where Activism turned to Tyranny 

Prior to the Xarelto Settlement, all MDL judges who have inserted themselves into MDL settlements have complied with FRCP 23(e) by conducting fairness hearings to allow parties not represented by plaintiffs leadership a voice before imposing any order related to the settlement that might negatively impact any absent plaintiffs case. Judge Fallon conducted extensive fairness hearings in the settlement of the Vioxx litigation. For reasons unknown to the author, Judge Fallon apparently does not view Xarelto plaintiffs as being deserving of the same protections provided Vioxx plaintiffs.

Although Quasi Class Actions do not actually exist, (MDLs are not Quasi Class Actions) and MDL judges arguably have no jurisdiction to involve themselves in MDL settlements, the Judicial Activism undertaken by Quasi Class Actions MDL judges has arguably been beneficial to defendants as well as plaintiffs desiring efficient mass settlement. Neither defendants nor plaintiffs have complained in the past however, Judge Fallon’s failure to conduct fairness hearings related to the proposed Xarelto Settlement may result in an end to the long running gravy train of MDL settlements achieved by activist MDL Judges willing to overstep their jurisdiction to assist parties in effectuating settlement.

In addition to failing to conduct fairness hearings related to the proposed Xarelto settlement, Judge Fallon also appears to be set to dismiss individual plaintiffs’ cases for failure to comply with orders arising from the settlement. These  orders were arguably issued absent jurisdiction over the subject matter. Any future order arising from the settlement orders, including an order dismissing a case for failing to comply with the settlement related orders, would also be issued without jurisdiction over the subject matter.

Appeals arising from the forgoing, may result in the creation of case law that puts an end to MDL judges inserting themselves into MDL settlements, making reaching mass settlement in MDLs a far more difficult task.

It should be noted I (John Ray) hold Judge Fallon in high esteem. I believe Judge Fallon is wise and fair minded. Despite the foregoing, even wise and fair-minded Judges can err.  I do not view Judge Fallon as a tyrant in general however, acts of tyranny are acts of tyranny, without regard to the general character of those that commit the acts.

 

Back Ground

MDL Judges presiding over Class Actions (FRCP 23) not only have jurisdiction over settlement, Judges presiding over Class Actions have a duty to insure than any proposed settlement is fair to all parties including “absent” parties. FRCP 23(e) Requires Judges presiding over Class Actions to conduct fairness hearings, and rule on the fairness of a class action settlement.

Rule 23(e) is the only safeguard provided to absent class members under Rule 23, protecting these vulnerable parties from self-dealing class action lead counsel that might be inclined to act to the common detriment of absent class members vs the common benefit of those absent parties.

Conversely USC 1407, passed by Congress in 1968, formerly codifying Multidistrict Litigation as a means by which very Federal Jurisdiction can be imposed, provided no jurisdiction for MDL judges to oversee, assist in, issue orders related to or arising from, mass settlement. Additionally, USC 1407, having extended no “settlement jurisdiction” to MDL judges also provided no protection from would be self-dealing lead counsel in MDLs that might act to the common detriment of absent plaintiffs (those not represented by leadership firms).

How Can This Be?

Common Misconception: MDL Judges Have Jurisdiction of the Subject Matter as Well as Personal Jurisdiction to oversee or enter orders to assist mass settlement.

Jurisdiction over the Subject Matter: Arguably does not exist!

Personal Jurisdiction: Arguably does not exist, except for cases that arose in the MDL Courts home State and then only if that court would otherwise have jurisdiction.

Wait a Second!

Wait a Second – MDL Judges frequently involve themselves in MDL mass settlements, how do they justify acting in excess of their Jurisdiction? How could the question of these judges jurisdiction over MDL settlement remained unresolved?

No party to an MDL to date,  has been so aggrieved by an MDL Judges overreach on settlement to force higher courts to deal with the issues. The Xarelto settlement is likely to change the foregoing.

 

The Birth of MDLs as Quasi Class Actions

Judge Jack B. Weinstein, presiding over the Zyprexa Litigation (MDL 1596), was the first MDL Judge (that we are aware of) to presume jurisdiction over settlement matters in Multidistrict Litigation under the “MDLs as Quasi Class Actions“ theory.

Weinstein reasoned that MDLs are “Quasi Class Actions” and cited (inter alia), his inherent authority under the “All Writs Act 28 U.S.C 1651” as providing him “inherent authority” over MDL settlements.

Judge Eldon Fallon, while presiding over the Vioxx Litigation, llowing Judge Weinstein’s Quasi Class Actions theory exerted his self-claimed inherent authority to wade into settlement of that litigation. Other MDL Judges (but not all) have also subscribed to Judge Weinstein’s “MDLs as Quasi Class Actions” theory.

Judge Eldon Fallon in Vioxx, as well as other “MDLs as Quasi Class Action  Judges” have reasoned that their involvement in MDL settlements is equitable, so long as the provisions of FRCP 23(e), are observed.  FRCP 23(e) is intended to provide protection from would be self-dealing lead Class Counsel. FRCP 23(e) obligates Federal Judges overseeing Class Actions to conduct fairness hearings (giving absent class members a chance to be heard) as well as rule on the fairness of any propose class settlement prior to approving the settlement and issuing any order related to the settlement that might negatively impact any individual plaintiff.

Judge Fallon in Vioxx as well as other “Quasi Class Action MDL judges” prior to the current Xarelto settlement have in fact held fairness hearings per FRCP 23(e) in all MDL mass settlements in which the court has involved itself via settlement related orders or other oversight.

Judge Fallon did not conduct fairness hearings before issuing orders related to the Xarelto settlement.

These “fairness hearings” are intended (according to “Quasi Class Action MDL judges”) to provide extend the protections provided absent parties in Class Action to absent parties in MDLs. In the MDL context “absent parties” would be all plaintiffs not represented by plaintiff’s leadership (retained by the leadership firms)

Why Do Xarelto Plaintiffs deserve Less Judicial protection than Vioxx Plaintiffs?

Only Judge Fallon could explain why he neglected to follow his own past reasoning (the requirement to conduct fairness hearings) and denied absent Xarelto Plaintiffs the same rights and protections as Vioxx plaintiffs.

Although the proposed Xarelto settlement is repeatedly referred to as a “Private Settlement” (extra udicial) reach by the parties, the label is inaccurate. The settlement was reached after negotiations between defense counsel and plaintiffs’ leadership. Plaintiffs leadership is not a party, nor do they represent any party (plaintiff) other than those retained by their respective firms.

Furthermore, the proposed Xarelto “Private Settlement” ceased to be Private (extrajudicial) the minute the “parties” crossed the threshold of the court seeking an order related to the settlement.

If the courts excuse for not conducting fairness hearings is “because this is a private settlement”, that dog simply won’t hunt.

Any contention that the court is acting under authority agreed to by the parties also fails. Plaintiff Leadership nor Defense Counsel all the “parties”. Plaintiff lead counsel can enter agreements binding on the clients retained by their firms (those parties) however, leadership does not represent all “parties” and therefore cannot stipulate to jurisdiction on behalf clients they do not represent. Additionally, issues related to subjected matter jurisdiction  cannot be waived by stipulation or agreement by the parties.

Jurisdiction Under the “All Writs Act”?

[A]ll courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”  28 U.S.C. § 1651(a).

In should be noted that Judge Weinstein, Judge Fallon  and “Quasi Class Action MDL Judges” never appear to claim to have  actual jurisdiction over MDL settlements, they instead cite their inherent authority, which would arise under the “All Writs Act”:

“All courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”  28 U.S.C. § 1651(a).”

The All Writs Act however, only provides “inherent authority” over subject matter for which the given Federal Court otherwise has jurisdiction. Absent Jurisdiction over the Subject Matter of MDL settlement, MDL Judges have no inherent authority  arising under 28 U.S.C. § 1651 related to the same subject matter (MDL settlements).

 

Judicial Activism Morphing into Tyranny

Judge Fallon, as well as other MDL judges who subscribe to the quasi-class action theory within the restraints of FRCP 23(e), have in the past been potentially guilty of well-intended judicial activism even when judicial acts arising from that activism may have strayed beyond their  jurisdiction.

The inherent problem always accompanying judicial activism is the risk of activism turning into tyranny.

Xarelto Plaintiffs aggrieved by the proposed settlement, with no forum in which to voice their grievances, while plaintiff leadership arguably acting to their common detriment and a court turning a deaf ear to their plight, might justifiably feel they are victims of judicial tyranny.

Many Judicial Scholars have expressed concern over the possible negative consequences of judicial activism. Many of the concerns expressed by these judicial scholars have now been realized in the proposed Xarelto Settlement.

The Author would argue that Judge Fallon’s failure to conduct fairness hearings, while issuing orders related to the Xarelto settlement, that may negatively impact individual plaintiffs, crossed the line from judicial activism to  judicial tyranny.

 

Don’t Take My Word for It

Due to the fact several members of Xarelto leadership directly threatening me and attempting to lead attorneys representing absent Xarelto plaintiffs (non-leadership) firms, to believe they are somehow at risk of ethical violations if they take the opinions of a non-lawyer (me) into consideration, I will provide the several links below to scholarly papers and articles written by judicial scholars who are actually attorneys. Draw your own conclusions.

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation

Elizabeth Chamblee Burch

https://www.amazon.com/Elizabeth-Chamblee-Burch/e/B00G61EI2I/ref=dp_byline_cont_ebooks_1

About Professor Burch: http://www.law.uga.edu/profile/elizabeth-chamblee-burch

Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation is available for purchase on Amazon. Professor Burch has been conducing research related to MDL settlements for many years. Her most recent work “Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation” is an eye opening read even for those that believe they are already familiar with all of the “dirty little lies and secrets” of mass torts.

Other work by Professor Burch includes “Monopolies in Mass Torts”

https://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2113&context=fac_artchop

 

You can obtain a copy of Monopolies in Mass Torts free at the link above. This paper is somewhat of a prequel to Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation. If you read the prequel you will want to buy the book.

 

DUBIOUS DOCTRINES: THE QUASI-CLASS ACTION  by Linda Mullenix

https://scholarship.law.uc.edu/cgi/viewcontent.cgi?article=1095&context=uclr

Note: This article written by Linda Mullenix in 2012 is as apt today as the day it was written.

About Professor Mullenix:  https://law.utexas.edu/faculty/linda-s-mullenix

Excepts:

In the past few years, the term ―quasi-class action has been appearing with increasing, uncritical frequency in a spate of federal court decisions. While it may be premature to characterize these sporadic references as a trend, it is perhaps soon enough to call attention to the misuse of loose labels that carry with them significant consequences. Before the quasi-class action gains any further traction, there are several valid reasons for definitively quashing this quasi

Before the inspired fabrication of the quasi-class action, global agreements accomplished under MDL auspices had to be settled pursuant to formal class requirements and due process protections. By engrafting the label quasi-class action onto MDL procedure, self-interested actors have created a perfect staging ground for negotiating back-room deals that carry a false aura of judicial legitimacy, liberated from the constraints of the formal class action rule.

MDL judges, in turn, by endorsing the concept of the quasi-class action have greatly expanded the scope of their authority and have become complicit in allowing private parties to accomplish the very backdoor settlements that the Supreme Court and federal courts have disallowed for decades. The quasi-class action, then, represents an ultimate, cynical expression of an aggregate claims-resolution model that enables self-interested actors to resolve claims in the actors‘ best interests rather than the interests of injured claimants.

At first blush, the sheer frequency of federal use of the term quasi-class action would seem to suggest that the quasi-class action is a well-recognized and well-established doctrine in federal jurisprudence. Since 1946, sixty-eight federal cases have cited the label. However, careful reading of this case law suggests an entirely different conclusion: the quasi-class action is a phantasm. None of these cases actually discussed the concept of the quasi-class action, and rarely-cited authority is inapposite or inaccurate.

Important Case Law

Although SCOTUS has yet to address the question : Does and MDL Judge (like a Class Action Judge) have jurisdiction over settlement, as the question has yet to be presented to SCOTUS, the high court has ruled on other questions in a manner which may be of value to any firm representing a plaintiff in the Xarelto litigation if said plaintiff case is dismissed or otherwise prejudiced by any of the orders related to or arising from the prosed Xarelto Settlement.

Lexecon v Milberg (Scotus)

https://www.oyez.org/cases/1997/96-1482

Note: Lexecon did not directly address the question of an MDL Judges jurisdiction over MDL settlement however, SCOTUS made it clear that USC 1407 does not extend an MDL judges jurisdiction beyond the exact language codified by Congress in 1407.

Federal Judges have broad discretion over many matters however, Federal Judges have no discretion in any matter (subject matter nor personal) beyond the specific grant of jurisdiction by Congress under which the court acts.

Question

May a federal district court conducting “pretrial proceedings” under 28 USC section 1407(a) invoke section 1404(a) to assign a transferred case to itself for trial?

No. In an opinion delivered by Justice David H. Souter, the Court held that a district court conducting pretrial proceedings pursuant to section 1407(a) has no authority to invoke section 1404(a) to assign a transferred case to itself for trial. The Court noted that the Panel’s section 1407(a) instructions are crouched in the word “shall,” which “creates an obligation impervious to judicial discretion.” Justice Souter wrote for the Court that, “the straightforward language imposing the Panel’s responsibility to remand… bars recognizing any self-assignment power in a transferee court.” The opinion was unanimous except insofar as Justice Antonin Scalia did not join Part II-C.

Lexecon Inc. was a defendant in a class action lawsuit. Under 28 USC section 1407(a), the lawsuit was transferred for pretrial proceedings to the District of Arizona. Section 1407(a) authorizes the Judicial Panel on Multidistrict Litigation to transfer civil actions with common issues of fact “to any district for coordinated or consolidated pretrial proceedings,” but provides that the Panel “shall” remand any such action to the original district “at or before the conclusion of such pretrial proceedings.” After claims against it were dismissed, Lexecon brought suit against Milberg Weiss Bershad Hynes & Lerach and others (Milberg) in the class action lawsuit in the Northern District of Illinois. Ultimately, the Panel, under section 1407(a), ordered the case transferred to the District of Arizona. Afterwards, Lexecon moved for the Arizona District Court to remand the case to Illinois. Milberg filed a countermotion requesting the Arizona District Court to invoke section 1404(a) to “transfer” the case to itself for trial. Ultimately, the court assigned the case to itself and the Court of Appeals affirmed its judgment.

 

AMCHEM PRODUCTS, INC., et al., PETITIONERS v. GEORGE WINDSOR et al.

Note: AMCHEM arose from the asbestos litigation, the ruling addressed attempts to settle cases filed in MDLs as well as cases filed in Class Actions. SCOTUS did not address the question of MDL Courts jurisdiction (nor lack thereof) over MDL settlement as this issue was not raised. SCOTUS ruling in AMCHEM did however make it clear that any mass tort judge, whether presiding over an MDL or a Class Action, has a duty to protect the interest of “absent plaintiffs”.

Excepts from AMCHEM

This case concerns the legitimacy under Rule 23 of the Federal Rules of Civil Procedure of a class action certification sought to achieve global settlement of current and future asbestos related claims. The class proposed for certification potentially encompasses hundreds of thousands, perhaps millions, of individuals tie d together by this commonality: each was, or some day may be, adversely affected by past exposure to asbestos products manufactured by one or more of 20 companies. Those companies, defendants in the lower courts, are petitioners here.

Rule 23(e), on settlement of class actions, reads in its entirety: “A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” This prescription was designed to function as an additional requirement, not a superseding direction, for the “class action” to which Rule 23(e) refers is one qualified for certification under Rule 23(a) and (b). Cf. Eisen, 417 U. S., at 176-177 (adequate representation does not eliminate additional requirement to provide notice). Subdivisions (a) and (b) focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives. That dominant concern persists when settlement, rather than trial, is proposed.

The settling parties, in sum, achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. Although the named parties alleged a range of complaints, each served generally as representative for the whole, not for a separate constituency. In another asbestos class action, the Second Circuit spoke precisely to this point:

[W]here differences among members of a class are such that subclasses must be established, we know of no authority that permits a court to approve a settlement without creating subclasses on the basis of consents by members of a unitary class, some of whom happen to be members of the distinct subgroups. The class representatives may well have thought that the Settlement serves the aggregate interests of the entire class. But the adversity among subgroups requires that the members of each subgroup cannot be bound to a settlement except by consents given by those who understand that their role is to represent solely the members of their respective subgroups.” In re Joint Eastern and Southern Dist. Asbestos Litigation, 982 F. 2d 721, 742-743 (CA2 1992), modified on reh’g sub nom. Inre Findley, 993 F. 2d 7 (CA2 1993).

The Third Circuit found no assurance here–either in the terms of the settlement or in the structure of the negotiations–that the named plaintiffs operated under a proper understanding of their representational responsibilities. See 83 F. 3d, at 630-631. That assessment, we conclude, is on the mark.

The argument is sensibly made that a nationwide administrative claims processing regime would provide the most secure, fair, and efficient means of compensating victims of asbestos exposure. Congress, however, has not adopted such a solution. And Rule 23, which must be interpreted with fidelity to the Rules Enabling Act and applied with the interests of absent class members in close view, cannot carry the large load CCR, class counsel, and the District Court heaped upon it. 

Subject Matter Jurisdiction Case Law 

Note: There are literally thousands of appellate rulings related to Lower Courts (Federal) issuing judgments and orders in excess of their jurisdiction. The citations below are merely examples of the vast number of rulings on the subject.

Void judgment is one entered by court that lacks the inherent power to make or enter the particular order involved, and it may be attacked at any time, either directly or collaterally; such a judgment would be a nullity, People v. Rolland 581 N.E.2d 907, Ill.App. 4 Dist. 1991)..

Invalidity need to appear on face of judgment alone that judgment or order may be said to be intrinsically void or void on its face, if lack of jurisdiction appears from the record, Crockett Oil Co. v. Effie, 374 S.W.2d 154 (Mo.App. 1964).

Note: MDL Court Judges imposing themselves into MDL settlements never seem to actually claim to have jurisdiction in the record, instead they  claim to have “inherent authority”. No authority exists absent jurisdiction.

Decision is void on the face of the judgment roll when from four comers of that roll, it may be determined that at least one of three elements of jurisdiction was absent: (1) jurisdiction over parties, (2) jurisdiction over subject matter, or (3) jurisdictional power to pronounce particular judgment that was rendered, B & C Investments, Inc. v. F & M Nat. Bank & Trust, 903 P.2d 339 (Okla. App. Div. 3, 1995).

A void judgment which includes judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent Power to enter the particular judgment. or an order procured by fraud,can be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court. Long v. Shorebank Development Corp., 182 F.3d 548 ( C.A. 7 Ill. 1999).

A void judgment is one which from its inception was a complete nullity and without legal effect, Lubben v. Selective Service System Local Bd. No. 2 7, 453 F.2d 645, 14 A.L.R. Fed. 298 (C.A. 1 Mass. 1972).

A void judgement is one which from its inception and forever continues to be absolutely null. without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree – Loyd v. Director, Dept. of Public Safety, 480 So. 2d 577 (Ala. Civ. App. 1985).

A judgment shown by evidence to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (CaLApp. 2 Dist. 1491).

Res judicata consequences will not be applied to a void judgment which is one which from its inception is a complete nullity and without legal effect, Allcock v. Allcock 437 N.E. 2d 392 (Ill. App. 3 Dist. 1982).

Void judgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed, City of Lufkin v. McVicker, 510 S.W. 2d 141 (Tex. Civ. App. – Beaumont 1973 1991)..

Disclaimer: The author of this article, John Ray, is not a lawyer. Nothing in this article should be taken as legal advice. The opinions expressed in this article are the opinions of the author. Publication of this article by any third party should not be considered an endorsement of nor agreement with the opinions expressed by the author.

 

 

 

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