LANDAU v. VIRIDIAN ENERGY PA, LLC
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD A. MCHUGH ON 4/3/2017. 4/4/2017 ENTERED AND COPIES MAILED, E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
STEVEN LANDAU, on behalf of himself and all :
others similarly situated,
VIRIDIAN ENERGY PA LLC,
April 3, 2017
This is a putative class action brought by a Pennsylvania consumer who alleges that
Viridian Energy PA LLC (Viridian) enticed him to shift his electric service with promises of
meaningful savings that never materialized. Viridian now moves on the basis of the “first-filed
rule” to transfer this case to the District of Connecticut where it is defending four similar cases.
Alternatively, Viridian asks that I stay this case pending resolution in the Connecticut cases. For
the reasons below, Viridian’s Motion to Transfer is denied, but its Motion to Stay is granted.
FACTS AND PROCEDURAL HISTORY
Defendant Viridian is an energy services company that markets electricity to retail
customers in Pennsylvania. Plaintiff Steven Landau claims that, in July 2013, Viridian lured
him from his local utility with promises of low, stable electricity rates. Six months after he
signed up with Viridian, Landau’s account was transferred to a Variable Rate Plan and his rates
more than doubled. On these facts, Landau alleges that Viridian breached the terms of its
contract and violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law
(UTPCPL). Landau asserts these claims on behalf of himself and current and former Viridian
customers in Pennsylvania. 1
On November 30, 2016, I granted in part and denied in part Viridian’s Motion to Dismiss
Landau’s claims and denied its Motion to Strike Class Allegations. --- F. Supp. 3d ---, 2016 WL
6995038 (E.D. Pa. Nov. 30, 2016). The surviving claims include breach of contract and violation
of the UTPCPL.
Viridian is defending four similar actions in the District of Connecticut: Sanborn v.
Viridian Energy, Inc., No. 14-cv-1731 (D. Conn. filed Nov. 19, 2014); Steketee v. Viridian
Energy, Inc., No. 15-cv-585 (D. Conn. filed Apr. 22, 2015); Mirkin v. Viridian Energy, Inc., No.
15-cv-1057 (D. Conn. filed July 10, 2015); and Hembling v. Viridian Energy, LLC, No. 15-cv1258 (D. Conn. filed Aug. 21, 2015). The plaintiffs’ counsel in Sanborn, Steketee, and Mirkin
recently filed a five-count consolidated complaint in which they seek relief for breach of
contract, breach of the covenant of good faith and fair dealing, and violations of the Connecticut
Unfair Trade Practices Act, the Massachusetts Unfair Trade Practices Act, the New Jersey
Consumer Fraud Act, and the New York General Business Law. Hembling is currently stayed
pending motions for class certification in the other three Connecticut cases.
The putative classes in Sanborn, Steketee, and Mirkin—current and former Viridian
customers in Massachusetts, Connecticut, New York, and New Jersey—do not overlap with
Landau’s putative class of current and former Pennsylvania consumers. Hembling, by contrast,
purports to bring claims on behalf of a broader class of Viridian customers in 13 states, including
Although Landau’s claims were based on Pennsylvania law and were against Viridian PA LCC, the putative class
in his Complaint was not geographically constrained. At a hearing on February 22, 2017, however, counsel
represented to the Court that the putative class in Landau is restricted to Viridian’s current and former Pennsylvania
Although Sanborn, Steketee, and Mirkin concern different parties and legal claims, the
underlying allegations in the consolidated complaint bear a meaningful resemblance to the
allegations in Landau’s Complaint. As in Landau, the plaintiffs in Sanborn, Steketee, and Mirkin
argue that Viridian breached its contractual obligation to base fluctuations in variable rates on
wholesale market conditions. The Mirkin plaintiffs have also amended their complaint to assert
a breach of contract claim identical to the one that I recognized in Landau, namely, that
Viridian’s “Welcome Letter” to new customers included promises of affordable rates, that this
Welcome Letter was incorporated into the contract by an integration clause, and that Viridian
failed to deliver cost savings as promised. Finally, all plaintiffs allege that Viridian’s marketing
promises were deceptive or misleading.
In an effort to streamline litigation, Judge Underhill has imposed a common pretrial
schedule on Sanborn, Steketee, and Mirkin. 2 Counsel in those cases have also agreed to share
with counsel in Hembling and Landau any documents produced in discovery without the need
for document requests. Viridian now asks that I further consolidate these cases by transferring
Landau to Judge Underhill’s docket, or, alternatively, that I stay Landau pending resolution of
the Connecticut cases.
A. Applicability of the “First-Filed Rule”
Viridian moves for transfer under the first-filed rule and 28 U.S.C. § 1404(a). Under the
first-filed rule, when two courts possess the same case at the same time, “the court which first
has possession of the subject must decide it.” Crosley Corp. v. Hazeltine Corp., 122 F.2d 925,
929 (3d Cir. 1941) (quoting Smith v. McIver, 22 U.S. 532, 535 (1824) (Marshall, C. J.)). “The
As of now, briefing on motions for class certification in Sanborn, Steketee, and Mirkin is due by mid-October, and
dispositive motions must be filed by the end of November.
rationale for the rule is the desire for sound judicial administration and comity among federal
courts of equal stature. It is also designed to relieve a party who first brings a controversy into a
court of competent jurisdiction from vexation of multiple litigations covering the same subject
matter.” Synthes, Inc. v. Knapp, 978 F. Supp. 2d 450, 455 (E.D. Pa. 2013).
In application, the first-filed rule 3 easily encompasses cases involving the same parties
and the same transaction. Many such cases involve intellectual property disputes, where a suit
for infringement of a patent in one district is met by a declaratory judgment action brought by the
alleged infringer against the holder of the patent in another district. See, e.g., Crosley Corp. v.
Westinghouse Elec. & Mfg. Co., 130 F.2d 474, 475-76 (3d Cir.), cert. denied, 317 U.S. 681
(1942). Except in such archetypal cases, the contours of the first-filed rule are harder to discern
and courts in this District disagree over its scope. Some courts take a narrow view of the firstfiled rule and apply it only when the parties and claims in the later-filed suit are a “mirror image”
of the first. Palagano v. NVIDIA Corp., No. CV 15-1248, 2015 WL 5025469, at *2 (E.D. Pa.
Aug. 25, 2015) (listing cases). Others have embraced a broader, close-enough-for-governmentwork approach to the rule and applied it to “disputes involving similar, concurrent actions.”
Shire U.S., Inc. v. Johnson Matthey, Inc., 543 F. Supp. 2d 404, 407 (E.D. Pa. 2008) (emphasis
added). According to proponents of the broader approach, the “substantive touchstone of the
first-to-file inquiry is subject matter,” rather than identity of legal claims or parties. Id. at 409;
see also Palagano, 2015 WL 5025469, at *2 (listing cases that apply the broader approach).
The Third Circuit has not definitively ruled on the scope of the first-filed rule.
Proponents of the mirror-image approach point to a footnote in Grider v. Keystone Health Plan
On one level, it almost seems a misnomer to refer to the first-filed “rule,” because in practice it is applied more in
the nature of an equitable doctrine that has given rise to a wide variety of results. As described by the Third Circuit,
the rule is “is not a mandate directing wooden application,” EEOC v. Univ. of Pa., 850 F.2d 969, 972 (3d Cir. 1988),
aff’d, 493 U.S. 182 (1990), and courts are free to depart from it when “fundamental fairness dictates,” id. at 977.
Center, Inc., 500 F.3d 322, 333 n.6 (3d Cir. 2007), where the Third Circuit said that the firstfiled rule applied only when “the later filed case [is] . . . on all fours with the other” and “the
issues . . . have such an identity that a determination in one action leaves little or nothing to be
determined in the other.” Courts favoring a broader interpretation of the first-filed rule dismiss
the language in Grider as mere dicta. See Synthes, 978 F. Supp. at 456 (collecting cases).
There appears to be consensus that if the first-filed rule applies, there is a presumption
that the later-filed action should be dismissed, transferred, or stayed. Koresko v. Nationwide Life
Ins. Co., 403 F. Supp. 2d 394, 403 (E.D. Pa. 2005). But even this presumption gives way when
“fundamental fairness dictates” a departure from the ordinary course. 4 Univ. of Pa., 850 F.2d at
Confounding the picture still further, many district courts have held that even when the
rule applies, a party seeking transfer of a later-filed case must nonetheless show that the
conditions of 28 U.S.C. § 1404 are satisfied. See Thompson v. Glob. Mktg. Research Servs., Inc.,
No. CV 15-3576, 2016 WL 233702, at *3 (E.D. Pa. Jan. 20, 2016) (listing cases that apply
§ 1404 after finding that the first-filed rule applies).
I am persuaded that much of the disagreement in the reported cases can be reconciled by
recognizing that there are two distinct scenarios where the rule has been applied. The first-filed
rule started with cases like Crosley, where earlier- and later-filed actions involved the same
parties and arose out of the same transaction, agreement, or encounter. Only later was it
extended to cases that were not truly related but raised similar issues. In cases where two actions
In Synthes, Inc. v. Knapp, my colleague Judge Savage noted that courts in this circuit also diverge on whether
departures from the first-filed rule are commonplace. 978 F. Supp. 2d at 455. Compare, e.g., Koresko v.
Nationwide Life Insurance Co., 403 F. Supp. 2d 394, 400 (E.D. Pa. 2005) (“[D]ue consideration to the orderly
administration of justice counsels in favor of ordinarily respecting the first-filed rule.”), and Southampton Sports
Zone, Inc. v. ProBatter Sports, LLC, No. 03-3185, 2003 WL 22358439, at *4 (E.D.Pa. Sept. 10, 2003) (departures
from the first-filed rule are rare), with FMC Corp. v. AMVAC Chem. Corp., 379 F. Supp. 2d 733, 744 (E.D. Pa.
2005) (exceptions to the first-filed rule are not rare-rather, departure occurs where justice requires).
arise out of an integrated dispute, transfer, stay, or dismissal of the later-filed action should be
required in the absence of exceptional circumstances. The Third Circuit’s statement in Grider,
even if dicta, supports that view. Such cases are genuinely related, in the technical sense,
making transfer (where it is sought) an obvious remedy. As a matter of simple logic, however,
the rule does not carry the same force when (1) different parties are involved, (2) the underlying
dispute involves similar but not identical issues, and (3) the controlling law is from different
jurisdictions. Any relationship between such cases is necessarily more attenuated. Faced with
that scenario, courts import § 1404 into the analysis, implicitly recognizing the weakness of the
relationship between cases.
In my view, clarity is served by explicitly recognizing a two-tiered approach to the firstfiled rule. In truly related cases, transfer to the jurisdiction with the first-filed case should be
presumed. Otherwise, the existence of an earlier-filed case that is similar, but not identical,
should be a relevant, but not controlling, factor to consider as part of § 1404 transfer analysis.
Because the cases here are not identical, I will consider the relevance of the pending Connecticut
actions as a factor under § 1404.
B. Section 1404 – Analysis
Under § 1404, “[f]or the convenience of parties and witnesses, in the interest of justice, a
district court may transfer any civil action to any other district or division where it might have
been brought.” In applying § 1404, a court must first determine whether venue is proper in both
the original district and the district to which transfer is sought. Keating Fibre Int’l, Inc. v.
Weyerhaeuser Co., 416 F. Supp. 2d 1048, 1053 (E.D. Pa. 2006). If so, the court then weighs a
variety of factors to determine whether transfer is appropriate. Id.
Normally, this multi-factor balancing inquiry requires courts to assess “both the private
interests of the parties and public-interest considerations.” Atl. Marine Constr. Co. v. U.S. Dist.
Court, 134 S. Ct. 568, 574 (2013). But the existence of a valid forum selection clause alters the
analysis. “When parties agree to a forum-selection clause, they waive the right to challenge the
preselected forum as inconvenient or less convenient for themselves or their witnesses, or for
their pursuit of the litigation. A court accordingly must deem the private-interest factors to
weigh entirely in favor of the preselected forum.” Id. at 582. Thus, where a valid forumselection clause exists, courts may only transfer cases outside of the preselected forum where
public interest factors outweigh the presumed private interests in enforcing the clause. Id. at 575.
“Because public-interest factors will rarely defeat a transfer motion, the practical result is that
forum-selection clauses should control except in unusual cases.” Id. at 577.
Here, Viridian’s contract provides “[v]enue for any lawsuit brought to enforce any term
or condition of this Agreement shall lie exclusively in the Commonwealth of Pennsylvania.”
MTD Ex. 4 at *2. In a reversal of typical roles, Viridian, the corporate defendant and drafter of
the mandatory forum selection clause, seeks to avoid it, while Landau, the consumer plaintiff,
seeks its strict enforcement. Given the existence of the clause, only public interest
considerations can support transfer.
Courts in Third Circuit evaluate the public interest in transfer by weighing a nonexhaustive list of factors articulated in Jumara v. State Farm. The Jumara factors are:
the enforceability of the judgment; practical considerations that could make the
trial easy, expeditious, or inexpensive; the relative administrative difficulty in the
two fora resulting from court congestion; the local interest in deciding local
controversies at home; the public policies of the fora; and the familiarity of the
trial judge with the applicable state law in diversity cases.
55 F.3d 873, 879–80 (3d Cir. 1995).
Viridian argues that there is an overwhelming public interest in transfer because moving
the case to Judge Underhill’s docket will facilitate coordination with Sanborn, Steketee, Mirkin,
and Hembling. According to Viridian, such coordination will conserve judicial resources by
streamlining discovery and by avoiding duplicative litigation in matters that “involve completely
overlapping subject matter.” MTT at 8. Viridian also argues that, because the putative classes in
Hembling and Landau both include Pennsylvania consumers, trying Landau in Pennsylvania
could prejudice members of the overlapping putative classes and lead to claim-splitting.
Relatedly, Viridian notes that it ultimately revised its Pennsylvania contracts, and more recent
iterations of its Terms and Conditions contain a mandatory forum selection clause that requires
contract disputes to be litigated in Connecticut rather than here. According to Viridian,
Pennsylvania customers who are bound by the Connecticut forum selection clause will not be
able to join Landau’s class action if the case is brought in the Eastern District of Pennsylvania;
Viridian therefore asks that this case be transferred to facilitate Landau’s representation of a
consolidated class of Pennsylvania plaintiffs. Finally, Viridian maintains that transfer serves the
public interest in comity between federal courts because it avoids the risk of inconsistent
rulings. 5 In sum, as to the Jumara public interest factors, Viridian’s argument for transfer is
based on “practical considerations that could make the trial easy, expeditious, or inexpensive” in
the District of Connecticut. 6
Viridian also complains that having to try cases in Pennsylvania and Connecticut would subject it to the
“considerable burdens” of duplicative discovery requests and motion practice. MTT at 13. As already noted, such
considerations of private convenience are barred under Atlantic Marine, which presumes that a forum selection
clause manifests the intent of the parties to try cases in the preselected forum. This approach is particularly apt here.
Viridian drafted the forum selection clause that it now seeks to escape; any harm that Viridian suffers from having to
defend itself in two states is therefore self-inflected.
Landau separately argues that transfer is inappropriate because this case could have been brought in Connecticut
because of the forum selection clause. This argument is patently lacking in merit under Atlantic Marine, 134 S. Ct.
Viridian’s argument that transfer will conserve judicial resources is not without force, but
it exaggerates the extent to which Landau overlaps with the Connecticut cases and therefore
overstates the benefits of transfer. While all five cases concern similar allegations, the applicable
law varies from case to case. Differences in controlling law weigh against transfer because I
have already invested considerable time in evaluating Landau’s claims under Pennsylvania
contract law and the UTPCPL, while Judge Underhill has not yet been required to undertake a
similar inquiry. The duplication of legal analysis that would necessarily attend a transfer of this
case offsets, at least in part, any potential efficiency gains from consolidation.
Further undermining Viridian’s case for transfer, there appear to be important factual
differences between Landau on the one hand, and Sanborn, Steketee, and Mirkin on the other.
Viridian now claims that the contracts in Landau and the Connecticut cases are materially
identical but its current posture is flatly contradicted by its earlier position. When arguing in
support of its Motion to Strike, Viridian described its various state contracts as containing
“numerous material differences among the variable rate terms.” MTS at 14. Specifically,
Viridian stressed distinctions between the contract in Landau and the contract in Steketee: while
the former promised that variable rates would fluctuate “based on wholesale market conditions,”
the latter described “market conditions” as just one of “several factors” that would impact rates,
which could also vary due to “operation costs, and other factors.” Id. Given the central
importance of precise contract language to any breach of contract analysis, these differences
undermine Viridian’s argument that Landau is on all fours with the Connecticut cases and that
transfer is therefore necessary to avoid duplicative litigation.
Viridian’s claim that transfer is necessary to coordinate discovery between Landau and
the Connecticut cases is similarly unpersuasive. That argument is belied by the parties’
agreement to share with counsel in Hembling and Landau all documents produced in Sanborn,
Steketee, and Mirkin. With this agreement in place, I fail to see how trying Landau in the
Eastern District of Pennsylvania will force Viridian “to duplicate efforts with respect to written
discovery [and] the production of thousands of documents.” MTT at 13.
Moreover, I am unconvinced that the specter of overlapping classes in Hembling and
Landau tips the scales in favor of transfer. During oral argument, Viridian implied that it would
not oppose attempts by counsel in Hembling to bring claims on behalf of Pennsylvania
consumers. In rebuttal, Landau urged that I place no weight on these seeming assurances from
Viridian. He noted that Hembling has no representative plaintiff from Pennsylvania and does not
involve any Pennsylvania state law claims. Landau further maintains that Viridian is likely to
oppose a motion for class certification in Hembling, notwithstanding its current assurances
before the court. Given Viridian’s demonstrated willingness to reverse itself to advance tactical
litigation objectives, I tend to agree. The possibility that Hembling and Landau might feature
overlapping classes does not mandate transfer.
Nor does Viridian’s use of a Connecticut forum selection clause in its more recent
Pennsylvania contracts. While Viridian argues that these Connecticut forum selection clauses
will balkanize Landau’s putative class by requiring some Pennsylvania consumers to try breach
of contract claims in Connecticut, it is unclear how many of Viridian’s Pennsylvania customers
are subject to the newer version of its contract and it is therefore impossible to say how much
havoc the Connecticut forum selection clauses might wreak on Landau’s attempt to certify a
class. Furthermore, as Viridian strenuously argues here, forum selection clauses are not ironclad and may give way where public interest factors overwhelmingly favor their abrogation.
Thus, even if Landau remains in this District, it might still be possible to certify a consolidated
class of Pennsylvania consumers, notwithstanding a forum selection clause that directs some
those consumers to bring claims in Connecticut.
Viridian’s last argument in favor of transfer is that placing Landau on Judge Underhill’s
docket will avoid conflicting judgments between courts of equal rank. I see at least two
problems with this claim. First, as noted above, the contract terms and applicable law in Landau
differ from the contract terms and applicable law in the Connecticut cases. In light of these
differences, Viridian’s presumption that a consistent outcome across cases is necessarily required
does not withstand scrutiny. Second, I question whether the growing practice of aggregating
cases before a single judge is always wise. The law develops through the exchange of ideas. No
single case necessarily embodies the complexities or nuances of subjects as vast as the delivery
of electricity to consumers. No one set of lawyers necessarily advances all of the relevant issues
courts should consider. And, as exemplified by the UTPCPL claims in this case and the scope of
the first-filed rule, not every jurist comes to the same conclusion on the same question of law,
even within a single district. Landau 2016 WL 6995038, at *6. The law benefits from this
intellectual give-and-take. Considerations of judicial efficiency and predictability are important,
but the mere “possibility of inconsistent results,” MTT at 8, does not compel transfer—especially
with different contracts and different controlling law.
Finally, at least one of the other Jumara public interest factors weighs against transfer:
“the local interest in deciding local controversies at home.” As Landau notes, there is a growing
recognition among courts in this District that Pennsylvania has a strong local interest in trying
suits brought by its residents against energy service companies operating inside its borders. In
Silvis v. Ambit Energy, L.P., one court found that this local interest grew out of Pennsylvania’s
traditional role as a regulator of retail electricity markets:
Pennsylvania has historically regulated the supply of energy to its residents, and
continues to do so actively in important ways even after partially deregulating the
industry in 1996. For example, the Pennsylvania Public Utility Commission
(“PUC”) mandates licensure for private energy suppliers like Defendants [(and
like Viridian)] who wish to service the Commonwealth's market[.]
90 F. Supp. 3d 393, 399 (E.D. Pa. 2015) (Robreno, J.). The court in Kantor v. Hiko Energy, LLC
struck a similar note, while also finding that the state’s local interest in trying UTPCPL claims
against companies like Viridian was especially strong since the enactment of the UTPCPL
“exemplified . . . Pennsylvania’s interest in protecting its citizens from unfair trade practices.”
No. CIV.A. 14-5585, 2015 WL 4770778, at *5 (E.D. Pa. Aug. 13, 2015) (Savage, J.). 7
Silvis and Kantor were well-reasoned decisions and persuade me that Pennsylvania has
an important interest in the rights of Pennsylvania electricity consumers, especially where the
contracts at issue were formed here and the alleged misrepresentations occurred here as well.
Accordingly, venue in a district court sitting in Pennsylvania is appropriate.
The combination of Pennsylvania’s local interest in trying Landau and the presumed
private interests of the parties in trying this case in the preselected forum outweighs the public
interest in favor of transfer. Viridian’s Motion to Transfer will be denied.
If I deem transfer improper, Viridian asks that I stay this case pending resolution in the
Connecticut cases. “The power to stay is incidental to the power inherent in every court to
dispose of cases so as to promote their fair and efficient adjudication.” United States v. Breyer,
41 F.3d 884, 893 (3d Cir. 1994). A stay, however, “is an extraordinary measure,” and demands
“compelling reasons for its issuance.” Id. For the reasons discussed below, Viridian’s Motion to
Stay will be granted.
Although state authorities have not launched a public inquiry into Viridian, as was the case in Kantor,
Pennsylvania’s interest remains strong.
Two factors strongly support staying this case. First is the possibility of overlapping
classes in Landau and Hembling. While this consideration did not tip the scales in favor of
transfer, it nonetheless weighs heavily in favor of a stay. The complaints in both Hembling and
Landau allege that Viridian breached its contractual obligation to base changes in its variable
rates on wholesale market conditions. However, after examining Landau’s Complaint, I found
that he failed to plead factual allegations supporting this particular breach of contract theory.
Landau, 2016 WL 6995038, at *3–4. Specifically, I noted that Landau had never actually
alleged that Viridian’s variable rates were out of sync with wholesale electricity prices—only
that these rates were higher than the retail rates charged by the local utility company. Id. The
complaint in Hembling (like the consolidated complaint in the other Connecticut cases) does not
suffer from this pleading defect. Rather, it clearly alleges that Viridian’s rates rose as wholesale
prices remained steady or fell.
That Viridian failed to base its variable rates on wholesale market conditions appears to
be one of the stronger allegations against the company; it also appears to be among the claims
that are most likely to support a class action. Landau’s failure to state a claim based on this
breach of contract theory may therefore harm Pennsylvania consumers if his case is permitted to
move forward. If, on the other hand, Landau is stayed until motions for class certification are
resolved in Hembling, and if the plaintiffs in Hembling succeed in certifying a class of Viridian’s
Pennsylvania customers, then Pennsylvania consumers may still seek relief based on the breach
of contract theory that Landau effectively forfeited through sloppy pleading. The interests of
Pennsylvania consumers therefore support issuance of a stay.
Sharp practices by Landau’s counsel further weigh in favor of a stay. Under the Eastern
District of Pennsylvania’s Local Rules, attorneys can mark a case as “related” when it “relates to
property included in another suit, or involves the same issue of fact or grows out of the same
transaction as another suit, or involve the validity or infringement of a patent involved in another
suit.” Local Rule of Civil Procedure 40.1(b)(3). When a case is marked as related, instead of
being randomly assigned, it is given to the judge who presided over the earlier-filed suit.
Attorneys mark cases as “related” on a “Civil Cover Sheet” and a “Designation Form,”
both of which are submitted to the Clerk of Court along with the Complaint. The Designation
Form further requires that attorneys specify why a given case is related to a previously filed case.
This is done by checking “yes” or “no” next to one of four grounds for “relatedness,” each of
which correspond to the Local Rules. Lest there be any doubt, above those “yes” or “no” boxes,
the Designation Form explains that “[c]ivil cases are deemed related when yes is answered to
any of the following.”
Both the Local Rules and the Designation Form make it abundantly clear when cases are
related. Nevertheless, Landau’s counsel marked this case as related to Sobiech v. U.S. Gas &
Electric, Inc., No. 14-cv-4464 (E.D. Pa. filed July 25, 2014), a case that does not concern the
same property or transaction as the present action. Underscoring the baselessness of this action,
counsel checked the “no” box next to each of the grounds for relatedness specified on the
Designation Form. 8
Because there was no apparent reason to mark Landau as related to Sobiech, counsel’s
actions raise a compelling inference of judge-shopping. Supporting this inference, Landau’s
Response to Viridian’s Motion to Dismiss relied heavily on my (inapposite) opinion denying a
motion to dismiss in Sobiech. See, e.g., Resp. to MTD at 3 (“Your Honorable Court recently
faced a similar set of facts and denied Defendant’s motion to dismiss in Sobiech.”). Moreover,
Regrettably, the Clerk’s office failed to enforce the Local Rule, and I did not catch its oversight until after making
a series of important rulings.
when given the chance to explain themselves, neither of Landau’s attorneys was able to offer any
reason for marking Landau and Sobiech as related, and simply apologized for having made a
The practice of judge-shopping raises serious questions of professional ethics and
undermines trust in the court’s impartiality. Some consequence should follow. Had I not
already invested substantial time and effort in this matter, I would have sent the case back for
reassignment. But judicial economy would be undermined by late reassignment. Instead, I find
that staying this matter imposes an appropriate penalty. The similar allegations in Landau and
the four Connecticut cases mean that some common questions of law and fact are likely to arise
in each action, particularly on motions for class certification. Judge Underhill’s decisions on
those motions will not necessarily control the outcome in Landau, but they will undoubtedly
inform my approach. Therefore, by staying this case and deferring to Judge Underhill’s initial
handling of the Connecticut cases, I will at least partially attenuate any taint, and erode whatever
advantage Landau’s counsel hoped to gain by having me preside over the case.
Finally, a stay is appropriate here because the burdens it would impose on Landau are
minimal. Counsel in Sanborn, Steketee, and Mirkin have agreed to file motions for class
certification by mid-October and Hembling’s stay will be lifted pending resolution of those
motions. During the finite duration of this stay, Landau will have access to documents produced
through discovery in the Connecticut cases and will therefore have an opportunity to develop his
case. Both Landau and Viridian are further encouraged to use this stay to determine how many
Pennsylvania consumers are subject to Pennsylvania forum selection clauses, and how many are
subject to Connecticut forum selection clauses. Resolution of this factual question will
streamline litigation when this stay is lifted.
Based on the forum selection clause, differences in the underlying facts and applicable
law in Landau and the Connecticut cases, and Pennsylvania’s strong interest in trying UTPCPL
claims against energy services companies, I find that transfer is improper in this case. I am
convinced however, that equitable considerations warrant a stay. Viridian’s Motions to Transfer
will be denied, but its Motion to Stay will be granted. An appropriate order follows.
/s/ Gerald Austin McHugh
United States District Judge
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