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Judge Agrees to Expand Plaintiffs Committees in Toyota MDL

Amanda Bronstad

The National Law Journal

May 17, 2010

A federal judge in California acceded to plaintiffs’ request for a robust litigation committee structure in appointing lead counsel for the multidistrict litigation against Toyota Motor Corp. over sudden unintended acceleration defects in its vehicles.

In an order released on Friday, U.S. District Judge James Selna appeared receptive to arguments by the attorneys that the litigation required more than a dozen lawyers behind the wheel — the original number that he anticipated would be required.

“The structure is somewhat larger than the Court initially envisioned,” Selna wrote. “However, the Court became convinced at the initial hearing that a larger group of counsel is needed to meet the needs of this case.”

Nearly 70 plaintiffs’ attorneys spent Thursday in Selna’s Santa Ana, Calif., courtroom attempting to convince him that there should be more members on the committees in charge of the litigation. Each argued for a leadership role in the MDL.

The MDL involves more than 200 lawsuits divided into two groups: those seeking economic losses on behalf of consumers and others who have lost value on their Toyotas, and those seeking damages for people who have been injured or killed in a Toyota.

Leading the economic loss committee will be Steve Berman, managing partner of Seattle’s Hagens Berman Sobol Shapiro; Frank Pitre of Cotchett, Pitre & McCarthy in Burlingame, Calif.; and Marc Seltzer, a partner in the Los Angeles office of Houston’s Susman Godfrey, according to Friday’s order.

Heading the liaison committee for the personal injury and wrongful death cases will be Elizabeth Cabraser of San Francisco’s Lieff Cabraser Heimann & Bernstein and Mark Robinson Jr., senior partner at Robinson, Calcagnie & Robinson in Newport Beach, Calif.

“It’s a privilege that Judge Selna chose us to handle this massive litigation against Toyota,” Berman said in an e-mailed statement on Friday. “It’s a great responsibility to lead a class of this magnitude and it’s something we believe Hagens Berman has the experience and talent to achieve on behalf of the consumers we represent.”

Selna expanded the lead counsel committee for the economic loss cases to nine members, including Berman and Seltzer, who represent the consumer plaintiffs, and Pitre, who represents nonconsumers such as car dealerships and rental car companies.

Of the remaining members, four will represent consumers: Benjamin Bailey of Bailey & Glasser in Charleston, W.V.; Stanley Chesley, president of Cincinnati’s Waite, Schneider, Bayless & Chesley; Jayne Conroy of Hanly Conroy Bierstein Sheridan Fisher & Hayes in New York; and Michael L. Kelly of Kirtland & Packard in El Segundo, Calif.

Two will represent the nonconsumers: Richard Arsenault, senior partner at Neblett, Beard & Arsenault in Alexandria, La.; and Jerome Ringler of Ringler Kearney Alvarez in Los Angeles.

The judge also expanded the size of the liaison committee for the personal and wrongful death cases to nine members, including Cabraser and Robinson. The other members are: Lewis “Mike” S. Eidson, a partner at Colson Hicks Eidson in Coral Gables, Fla.; Mark Lanier of The Lanier Law Firm in Houston; Richard D. McCune, a partner at McCuneWright in Redlands, Calif.; W. Daniel “Dee” Miles, a shareholder at Beasley, Allen, Crow, Methvin, Portis & Miles in Montgomery, Ala.; Brian Panish, a partner at Panish, Shea & Boyle in Los Angeles; Hunter Shkolnik, a partner at Rheingold, Valet, Rheingold, Shkolnik & McCartney in New York; and Donald H. Slavik, a partner at Milwaukee’s Habush Habush & Rottier.

The order sets forth a core discovery committee with nine members, all of whom will come from the other two committees. Another three liaison counsel will work with lawyers in a series of state cases against Toyota and other types of federal cases, including shareholder litigation. Serving in that role will be Wylie Aitken, founding partner of Aitken * Aitken * Cohn in Santa Ana; Dawn Barrios of Barrios Kingsdorf & Casteix in New Orleans; and Gretchen M. Nelson of the Los Angeles office of Kreindler & Kreindler.

Selna permitted one or more counsel to handle specific duties “limited to a particular factual or legal area,” according to the order. He specifically designated Monica Kelly of Ribbeck Law Chartered in Chicago to serve as consultant to the liaison committee and lead counsel committee for Toyota consumers and others outside the United States.

The committee size and selections reflected in large part the recommendations of Berman, Cabraser and Seltzer, who had been appointed temporary lead counsel in the cases.

“He was impressed with all the different battles that will go on in this case,” Berman said of the judge.

On the defense side, Selna elaborated on a temporary order he issued on Wednesday appointing Cari Dawson and Lisa Gilford of Alston & Bird as lead defense counsel in the economic loss cases, and Vince Galvin and Joel Smith of Bowman and Brooke as lead counsel in the personal injury and wrongful death cases for Toyota. Galvin and Gilford also will serve as the defense’s liaison counsel to the state cases and other federal cases.

The next hearing in the case is scheduled for May 28, when Selna is expected to issue a scheduling order for pleadings, including the consolidated class action complaint for the economic loss claims and motions related to the personal injury and wrongful death cases.

“The Court intends for such motions to serve as bellwethers which will provide the parties guidance with respect to the same issues in other cases before further motions practice proceeds,” he wrote.

Selna also is expected to issue an evidence preservation order.

“It is a great honor to have been selected and appointed by the court to lead this litigation, but it is also a tremendous challenge and responsibility for any lawyer and law firm,” Miles said via e-mail. “We asked the court for this challenge and we accept our appointment with full appreciation of its importance to the families of the deceased victims, consumers and businesses who have suffered as a result of these alleged automotive defects in Toyota products.”

Arsenault, in an e-mailed statement, said that “few decisions by the court in complex litigation are as difficult and sensitive as the appointment of designated counsel. Now with an organized structure and corresponding appointments in place, the litigation can proceed under Judge Selna’s capable supervision.”

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