UPDATE (Dec 21): U.S. District Judge Denise Cote has selected
Hagens Berman and Cohen Milstein Sellers & Toll as co-lead
counsel in the litigation. In a statement, Cohen Milstein
partner Kit Pierson said, "We think this is a very important
case for American consumers. It is a privilege to represent the
class in this matter and we expect this case to move forward
Hagens Berman lost the battle over where the multidistrict
litigation of antitrust claims against Apple and several book
publishers should be based. Earlier this month the Judicial
Panel on Multidistrict Litigation agreed with Finkelstein
Thompson that the e-books MDL should be litigated in federal
court in Manhattan, where the publisher defendants are based,
and not in the Northern District of California, where Apple is
headquartered and where Hagens Berman filed the first e-books antitrust class action in August.
But that was really just a skirmish in the plaintiffs' war
to lead the case, which intensified Monday with the filing of
briefs in support of at least three rival lead counsel bids.
U.S. District Court Judge Denise Cote, who's overseeing the
cases, has a lot of reading to do over the holiday break.
The JPML's decision arguably puts Hagens at a disadvantage
since the firm is based on the West Coast. In fact, Grant &
Eisenhofer's lead-counsel brief plays up the firm's dedication
to New York, specifically stating that all of the G&E lawyers
slated to work on the e-books case are based in New York and
noting prominently that the firm worked with Finkelstein
Thompson to defeat Hagens Berman's bid to have the cases
consolidated in California. (Finkelstein and co-counsel Lovell
Stewart Halebian Jacobson said in their brief filed Monday that
they support Grant & Eisenhofer as lead, but that Finkelstein
is "ready, willing, and able" if Cote wants more than one
lead.) Grant & Eisenhofer, which asserted that it has developed
confidential publishing industry sources since it began
investigating the case in March, said it also has the support
of Robbins Geller Rudman & Dowd; Berger & Montague, and Faruqi
& Faruqi, among other firms.
Only one "outlier," according to G&E, opposes its
leadership bid. But the "outlier" -- Cohen Milstein Sellers &
Toll -- has its own list of supporters. The Cohen Milstein lead-counsel brief names (among others) Kirby McInerny; Girard
Gibbs; Pomerantz Haudek Grossman & Gross; and Milberg. What's
more, Cohen Milstein said its preference is a co-lead counsel
structure in which it controls the East Coast wing of the case
and Hagens Berman takes the lead on the West Coast.
In Dec. 1 letters to the Manhattan federal judge previously overseeing the e-books litigation, Grant & Eisenhofer and Cohen
Milstein both advocated for co-leadership with Hagens Berman,
but Grant & Eisenhofer seems to have moved toward a bid for
sole control, at least on an interim basis.
Hagens Berman, meanwhile, asserted in its lead-counsel brief Monday that Grant & Eisenhofer -- and everyone else who
has named Amazon or Random House as a defendant -- doesn't
really understand the alleged price-fixing conspiracy that
Hagens began investigating back in 2009. Amazon and Random
House, according to Hagens, stood against the conspiracy, and
should be treated as witnesses, not defendants. Hagens's brief
said the firm still backs co-leadership, as it did in the Dec.
1 letter, and does not advocate for one East Coast firm over
another. But if Cote intends to appoint only one interim lead
counsel, the brief said, it should be Hagens Berman. (Spector
Roseman Kodroff & Willissubmitted a brief supporting Hagens
Berman but also suggesting itself as an alternative.)
I called lawyers at G&E, Cohen Milstein, and Hagens Berman
but didn't hear back.
(Reporting by Alison Frankel)
Follow Alison on Twitter: @AlisonFrankel
Follow us on Twitter: @ReutersLegal