Ready, Fire, Aim: A Lesson In Bad Legal Writing From The Lowe’s Drywall Class Action Settlement Kerfuffle

The internet has not been pleased with the proposed settlement reached between Lowe’s — which denies ever selling any tainted Chinese drywall — and the plaintiff’s attorneys in a Georgia state court class action.

There’s two problems with the proposed settlement, which has not yet been approved by a judge. First, the settlement is a dreaded coupon settlement (i.e., a settlement in which the plaintiffs get only coupons or vouchers to buy more stuff from the defendant), one that will use particularly unreliable notice procedures for letting potential class members know about the settlement. For more, see ProPublica and the Fulton County Daily Report.

Second, there’s already a federal multi-district litigation (“MDL”) case ongoing in the Eastern District of Louisiana designed to consolidate all of the Chinese drywall cases into a single MDL case.

I was going to write more about the case, with an emphasis on the interplay between the overlapping state and federal court cases and the interesting issues of federalism they raise, when I came to this part of a motion filed by the MDL plaintiff’s lawyers in opposition to the Georgia settlement:

The Georgia class action includes all of the plaintiffs within this Court’s jurisdiction in MDL 2047 and serves as an interference with and a roadblock to the Court’s management of and supervision over the resolution of Chinese Drywall cases. This Court has authority under the All Writs Act , 28 U.S.C. § 1651, to enjoin the Georgia proceedings as well as counsel associated with that conflicting case. Congress granted this MDL Court the power to enjoin state court proceedings where “necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” Id.; 28 U.S.C. §2283. Courts liberally invoke the “necessary in aid of its jurisdiction” exception to the Anti-Injunction Act “to prevent a state court from so interfering with a federal court’s consideration or disposition of a case as to seriously impair the federal court’s flexibility and authority to decide that case.” Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 295 (1970); In re Baldwin-United Corp., 770 F.2d 328, 337 (2nd Cir. 1985) (same); In re Corrugated Container Antitrust Litigation, 659 F.2d 1332, 1334 (5th Cir. 1981), cert. denied, 456 U.S. 936 (1982) (same); In re Joint E. & S. Dist. Asbestos Litig., 134 F.R.D. 32, 37 (E.&S.D.N.Y. 1990) (same); Martin H. Redish, The Anti-Injunction Statute Reconsidered, 44 U. Chi. L. Rev. 717, 754 (1977); In re Diet Drugs, 282 F.3d 220, 235 (3rd Cir. 2002) (recognizing “a category of federal cases for which state court actions present a special threat to the jurisdiction of the federal court”—namely, where “a federal court [is] entertaining complex litigation, especially when it involves a substantial class of persons from multiple states, or represents a consolidation of cases from multiple districts….”).

An injunction against the competing Georgia state court proceedings is appropriate here to allow this Court to “legitimately assert comprehensive control over [this] complex litigation.” United States v. International Brotherhood of Teamsters, 907 F.2d 277, 281 (2nd Cir. 1990); Standard Microsystems Corp. v. Texas Instruments Inc., 916 F.2d 58, 60 (2nd Cir. 1990); Carlough v. Amchem Prods., Inc., 10 F.3d 189, 204 (3rd Cir. 1993); Diet Drugs, 282 F.3d at 235; Corrugated Container, 659 F.2d at 1334; Newbe v. Enron Corp., 338 F.3d 467, 474-75 (5th Cir. 2003); Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202 (7th Cir. 1996); Class Plaintiffs v. City of Seattle, 955 F.2d 1268 (9th Cir.), cert. denied, 506 U.S. 953 (1992); White v. National Football League, 41 F.3d 402, 409 (8th Cir. 1994), cert. denied, 515 U.S.1137 (1995); James v. Bellotti, 733 F.2d 989, 994 (1st Cir. 1984); Battle v. Liberty National Life Ins. Co., 877 F.2d 877, 882 (11th Cir. 1989); In re Granada Partnership Sec. Litig., 803 F.Supp. 1236, 1246 (S.D. Tex. 1992); Joint E. & S. Dist. Asbestos Litig., 134 F.R.D. at 37.

Seriously?

It’s almost like the lawyers didn’t realize that Writing Bad Briefs: How To Lose a Case in 100 Pages or More, by Judge Gerald Lebovits, was satire:

String cite whenever possible. If you have 20 cases for the same proposition, add them all. To show that you’re smarter than the judge — a losing and therefore effective strategy — cite after every proposition in your brief, even for obvious statements. But don’t cite the record below. Pointless.

If you cite, don’t explain why your citations are relevant. Mention that the
cases are on point, but don’t say why. If you try to explain the case, make the case
more complicated than it is. If you want to be analytical and fancy, start every
paragraph with “My adversary’s argument is mendacious and ridiculous.” And never use parenthetical explanations after citations. Parentheticals just throw judges a curve.

What were those lawyers thinking?

Did they think Judge Fallon genuinely didn’t know that he could invoke the Anti-Injunction Act “to prevent a state court from so interfering with a federal court’s consideration or disposition of a case” or that he should “legitimately assert comprehensive control over [this] complex litigation,” and so needed a dozen-and-a-half cases as a reminder of those basic principles of federalism and MDL litigation?

If not, then what’s the point of all those string cites without even the slighest indication as to their relevance? Did they just cut-and-paste every arguably useful case, presuming that Judge Fallon would ask his clerks to fish through all eighteen cases (and one law review article) to find which one of them might actually pertain to this situation? Did they not realize that, since the docket in the MDL case had 5,156 entries, Judge Fallon and his clerks might have more pressing tasks than figuring out what relevance a law review article from 1977 — before most of the clerks were born — had to this situation?

There’s an old saying they taught me at Temple Law School: make it easy for the judge to rule in your favor. A long list of unexplained string cites doesn’t do that.

 

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