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Judge Orders Litigation Management of Defense Counsel in Antitrust MDL

January 21, 2019 | Posted in : Defense Fees / Costs, Litigation Management

A recent Law 360 story by Anne Cullen, “Judge Orders Blue Cross Attys to Shape Up in Antitrust MDL,” reports that the Alabama federal judge overseeing sweeping antitrust litigation against the Blue Cross Blue Shield network has said he can no longer wait for the insurance giant’s army of lawyers to marshal themselves into a more manageable group, ordering a dozen attorneys into a "Council of Twelve" to streamline a leadership plan.  In an unusual decision handed down, U.S. District Judge R. David Proctor took it upon himself to straighten out Blue Cross’ defense team, noting that even though it’s rare for a court to set up lead counsel on the defendants’ side in multidistrict litigation, the court had “reached that point.”

“Since the inception of this litigation, the court has repeatedly requested that the defendants organize themselves in a manner that allows the court to interact with the defendants in a more manageable, representative manner,” Judge Proctor said.  “The defendants have been reluctant to scale down their ranks to operate in the streamlined manner envisioned by the court.”  “Therefore, the court undertakes that task itself, with input from all parties,” he added.

The attorneys Judge Proctor handpicked hailed from just seven of the more than two dozen firms defending Blue Cross in long-running litigation leveled by health providers and subscribers claiming the insurers agreed not to compete with one another in various markets through trademark licensing deals and other arrangements.

Three attorneys from Kirkland & Ellis LLP ended up on what Judge Proctor dubbed the “Council of Twelve,” while Hogan Lovells, Cravath Swaine & Moore LLP and Wallce Jordan Ratliff & Brandt LLC provided two lawyers each.  Attorneys from Maynard Cooper & Gale PC, Lightfoot Frankline & White LLC and Crowell & Moring LLP rounded out the dozen.  And that council is tasked with pulling together a plan to whittle the defense team into a more efficient machine by mid-February.

This isn’t the first time Judge Proctor has lost his patience with the Blue Cross team, as in May he chastised them over what he called a “discovery soap opera,” going as far as to toss in an animated GIF of Tom Hanks mouthing “Really?” into a discovery order.

In the ruling, he told the council that their appointments are not final.  “The court reserves the power to change the composition of the council in its sole discretion,” he said.  The case is In re: Blue Cross Blue Shield Antitrust Litigation, case number 2:13-cv-20000, in the U.S. District Court for the Northern District of Alabama.