Fiol v. Volkswagen Group of America, Inc.

Filing 29

PRETRIAL ORDER NO. 7: Order Appointing Plaintiffs' Lead Counsel, Plaintiffs' Steering Committee, and Government Coordinating Counsel. Signed by Judge Charles R. Breyer on January 21, 2016. (crblc4S COURT STAFF) (Filed on 1/21/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MDL No. 2672 CRB (JSC)

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IN RE: VOLKSWAGEN “CLEAN DIESEL”
MARKETING, SALES PRACTICES, AND
PRODUCTS LIABILITY LITIGATION
_____________________________________/

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This Order Relates To:
United States District Court
Northern District of California

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PRETRIAL ORDER NO. 7: ORDER
APPOINTING PLAINTIFFS’ LEAD
COUNSEL, PLAINTIFFS’ STEERING
COMMITTEE, AND GOVERNMENT
COORDINATING COUNSEL

ALL ACTIONS (except securities fraud cases)
_______________________________________/

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On December 9, 2015, the Court announced that it intended to appoint a Plaintiffs’
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Steering Committee (“PSC”) to conduct and coordinate the pretrial stage of this multi-district
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litigation (“MDL”) with the defendants’ representatives or committee. (Pretrial Order No. 1, Dkt.
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No. 2.) The Court subsequently invited individuals to submit applications for a steering
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committee or a lead counsel position by January 8, 2016 and allowed parties to respond by
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January 14, 2016. (Pretrial Order No. 2, Dkt. No. 336.) The Court received a total of 150
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submissions: 9 individuals applied for a lead counsel position, 104 applied for a steering
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committee position, and 37 applied for a lead counsel and/or a steering committee position. The
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Court held a hearing on the matter on January 21, 2016. Having carefully considered the written
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submissions and the applicants’ oral statements, the Court issues the following Order.
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A.

Lead Counsel

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1.

The Court appoints Elizabeth J. Cabraser of Lieff Cabraser Heimann & Bernstein,

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LLP as Plaintiffs’ Lead Counsel and as Chair of the PSC. Ms. Cabraser has extensive experience
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with multi-district litigation and has held leadership positions in 17 different MDLs, including
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several that involved automobile defects. She also has the support of a great number of her fellow

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counsel in this MDL. (See Dkt. No. 782-3.) Moreover, the Court has first-hand knowledge of Ms.

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Cabraser’s leadership abilities, having worked with her in her role as plaintiffs’ liaison counsel

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and as a member of the PSC in In re: Bextra and Celebrex Marketing, Sales Practices, and

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Products Liability Litigation, MDL No. 1699 (N.D. Cal.). That experience left the Court with the

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confidence that Ms. Cabraser will effectively represent and guide the plaintiffs toward a resolution

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that is in their best interests.
2.

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The Court vests Ms. Cabraser, as Lead Counsel and PSC Chair, with the authority

and duty to coordinate and oversee the PSC responsibilities set forth below; to schedule PSC
meetings and keep minutes or transcripts of these meetings; to appear at periodic Court-noticed

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United States District Court
Northern District of California

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status conferences and hearings; to sign and file all pleadings relating to all actions; and to bind

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the PSC in scheduling settlement discussions and discovery, setting agendas, entering into

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stipulations, and in other necessary interactions with the settlement master, defense counsel, and

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the PSC. Ms. Cabraser shall also have the authority to retain the services of any attorney not part

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of the PSC to perform any common benefit work, provided the attorney so consents and is bound

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by the PSC’s compensation structure. She shall perform other necessary PSC administrative and

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logistic functions and carry out any other duty as the Court may order.
3.

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•

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Lead Counsel shall also do the following:

Establish and maintain a depository for orders, pleadings, hearing transcripts, and all

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documents served upon plaintiffs’ counsel, and make such papers available to plaintiffs’

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counsel upon reasonable request.
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advanced by PSC members and received by the PSC and report in writing to the PSC

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concerning disbursements and receipts.

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•

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Designate counsel to schedule depositions, set agendas and otherwise interact with defense
counsel, Government counsel, various plaintiffs’ counsel, and the settlement master.

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Maintain in conjunction with their accountant records of receipts and disbursements

B.

Plaintiffs’ Steering Committee
4.

As noted above, Ms. Cabraser will chair the PSC. The Court appoints the
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following attorneys as members of the PSC:
Benjamin L. Bailey
Bailey and Glasser LLP
209 Capital Street
Charleston, WV 25301

Steve W. Berman
Hagens Berman Sobol Shapiro LLP
1918 Eighth Avenue, Suite 3300
Seattle, WA 98101

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David Boies
Boies Schiller and Flexner
333 Main Street
Armonk, NY 10504

Elizabeth Cabraser (chair)
Lieff Cabraser Heimann & Bernstein,
LLP
Embarcadero Center West
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339

David Seabold Casey, Jr.
Casey Gerry Schenk Francavilla Blatt &
Penfield LLP
110 Laurel St
San Diego, CA 92101

James E. Cecchi
Carella Byrne Cecchi Olstein Brody &
Agnello, P.C.
5 Becker Farm Road
Roseland, NJ 07068

Roxanne Barton Conlin
Roxanne Conlin and Associates
319 7th Street
Suite 600
Des Moines, IA 50309

Jayne Conroy
Simmons Hanly Conroy, LLC
112 Madison Avenue
New York, NY 10016

Paul J. Geller
Robbins Geller Rudman and Dowd LLP
120 East Palmetto Park Road, Suite 500
Boca Raton, FL 33432

Robin L. Greenwald
Weitz & Luxenberg, P.C.
700 Broadway
New York, NY 10003

Michael D. Hausfeld
Hausfeld LLP
1700 K Street NW, Suite 650
Washington, DC 20006

Michael Everett Heygood
Heygood, Orr, Pearson
6363 North State Highway 161, Suite 450
Irving, TX 75038

Adam J. Levitt
Grant & Eisenhofer P.A.
30 North LaSalle Street, Suite 1200
Chicago, IL 60602

W. Daniel “Dee” Miles III
Beasley Allen Crow Methvin Portis &
Miles
218 Commerce Street
P.O. Box 4160
Montgomery, AL 36103

Frank Mario Pitre
Cotchett Pitre & McCarthy LLP
San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010

Joseph F. Rice
Motley Rice LLC
28 Bridgeside Boulevard
Mt. Pleasant, SC 29464

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United States District Court
Northern District of California

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Rosemary M. Rivas
Finkelstein Thompson LLP
1 California Street, Suite 900
San Francisco, CA 94111

Lynn Lincoln Sarko
Keller Rohrback L.L.P.
1201 Third Avenue, Suite 3200
Seattle, WA 98101

Christopher A. Seeger
Seeger Weiss LLP
77 Water Street, 26th Floor
New York, NY 10005

J. Gerard Stranch IV
Branstetter, Stranch & Jennings, PLLC
227 Second Avenue N, 4th Floor
Nashville, TN 37201

Roland K. Tellis
Baron Budd, P.C.
15910 Ventura Boulevard
Encino Plaza, Suite 1600
Encino, CA 91436

Lesley Elizabeth Weaver
Block & Leviton LLP
520 Third Street, Suite 108
Oakland, CA 94607

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United States District Court
Northern District of California

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5.

The PSC appointments are personal to the individual attorney appointed. While the

Court has considered PSC members’ resources and expects they will draw upon their firms and
co-counsel to assist them with their duties, each member is personally responsible for his or her
duties. The Court may add or replace members upon request from the PSC, or on its own motion,
if and as circumstances warrant.
6.

It is intended and expected by this Order that, as to all matters common to the

coordinated cases, and to the fullest extent consistent with the independent fiduciary obligations
owed by any and all plaintiffs’ counsel to their clients and any putative class, that pretrial
proceedings shall by conducted by and through the PSC.
7.

The Court notes it has appointed 21 attorneys to the PSC (in addition to Ms.

Cabraser); the Court believes this is an appropriate number given the amount of work this
litigation may entail and the need for an expeditious resolution of the matter.
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The PSC is responsible for creating its own structure, including establishing

subcommittees, subject to the Court’s approval. The Court recognizes that changes to the PSC’s
organization may be necessary as the litigation progresses and new details emerge.
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Finally, as the Court stated at the January 21, 2016 proceeding, the Court will make
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the final determination as to the compensation and reimbursement of Plaintiffs’ counsel. As a

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result, there is no need to choose counsel based on a competitive bidding process as proposed by

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an amicus. (See Dkt. No. 576.) All time keepers carrying out work for the plaintiffs’ common

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benefit, including PSC members, who may look to any common fund or agreement for

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reimbursement or compensation shall maintain detailed and contemporaneous time records. The

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Court will provide further details in a subsequent Order.

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C.

Government Coordinating Counsel
10.

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On January 15, 2016, the Judicial Panel on Multidistrict Litigation conditionally

transferred from the Eastern District of Michigan to this Court United States v. Volkswagen AG, et

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al., Case No. 16-10006. (Dkt. No. 928.) In light of the United States Government interests in this

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United States District Court
Northern District of California

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MDL, the Court appoints United States Department of Justice Attorney Joshua H. Van Eaton as

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coordinating counsel for the interests of the United States. Mr. Van Eaton’s role will include

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scheduling meetings, appearing at Court-noticed conferences, acting on behalf of the Government

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interests in settlement discussions (including ensuring that the appropriate Government decision

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makers are participating), coordinating discovery with the PSC and Defendants, and carrying out

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any other duty the Court may order. The Government Coordinating Counsel shall confer with the

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PSC and Defendants to achieve the greatest possible efficiencies and effectiveness, including as to

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the conduct of discovery and settlement discussions.

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D.

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Defendants’ Liaison Counsel
To act on behalf of all Defendants, and to ensure effective and efficient communications

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between Defendants and Plaintiffs’ Lead Counsel, the PSC, the settlement master, and

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Government Coordinating Counsel, Defendants shall provide the Court with the name and firm of

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the attorney who shall act on behalf of Defendants as Defendants’ Liaison Counsel on or before

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January 27, 2016.

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IT IS SO ORDERED.
Dated: January 21, 2016
______________________________________
CHARLES R. BREYER
United States District Judge
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