The plaintiffs lawyer who accused three attorneys of mismanaging the ignition-switch litigation against General Motors Co. has backed off his demands that a judge remove all of them. Still, the lawyer, Lance Cooper, is calling for the resignation of one of the lawyers, Bob Hilliard, claiming that his actions have imperiled the multidistrict litigation.
Cooper last month asked U.S. District Judge Furman of the Southern District of New York to remove lead counsel from their posts after the first bellwether trial fell apart over allegations that the plaintiff, Robert Scheuer, might have committed perjury and fraud. Lead counsel defend their handling of the multidistrict litigation.
On Feb. 5, Cooper fired back with a revised request to remove just Hilliard, of Hilliard Muñoz Gonzales in Corpus Christi, Texas, and replace him with two lawyers in charge of the personal injury and wrongful death litigation—one for federal cases, one for state court.
“The co-leads are getting ready to try a case in approximately a month that’s worse than the case they just tried,” Cooper told The National Law Journal on Monday. “This process is broken—this bellwether process—and it’s the most important process in helping the parties evaluate the case, which affects all the clients. Because it was broken in this way, the person leading the charge for the plaintiffs needs to be removed.”
Cooper, a former member of the MDL’s executive committee, dropped his call to remove the other lead attorneys, Elizabeth Cabraser and Steve Berman. Both lawyers “are primarily responsible for the economic loss claims and their removal could potentially harm the plaintiffs who have an interest in these claims,” Cooper wrote in a footnote in the papers filed on Friday in New York.
Cooper’s latest filing included emails and other documents that showed his disagreements with Hilliard may have started as early as fall 2014, when conflicts arose over discovery requests he was making in his own Georgia state court case. Cooper, in the Georgia case, first uncovered the ignition-switch defect.
In a letter to Furman on Sunday, Hilliard, Berman and Cabraser moved to strike many of Cooper’s documents as protected under the work-product doctrine. On Monday, Furman ordered Cooper, who resigned from the MDL committee a year ago, to return all copies of documents that might be privileged. The judge temporarily sealed the material.
Lead counsel also alleged Cooper had violated New York’s rules of professional conduct by investigating a settlement Hilliard reached with GM on Sept. 17 on behalf of 1,380 of his own clients. Cooper has accused Hilliard of breaching his fiduciary duty to all the plaintiffs in the MDL by cutting a sweetheart deal with GM as part of that settlement in which he would put his own remaining cases as bellwether trials. Five of the six bellwether trials slated for this year are Hilliard’s clients, including those that GM selected.
In an email to the NLJ, Hilliard said Cooper’s actions “are far ranging and professionally consequential.”
“There were a hundred other attorneys who sought and would have gladly accepted this appointment offered to Mr. Cooper,” he wrote. “The myopic arrogance required to thumb his nose at the entirety of the process, from appointment to now, is mind numbing in its level of unprecedented and unprofessional behavior.”
Cooper replied: “People can read the briefs and determine who’s behaved properly and who has not.”
The dispute has involved some of the most prominent mass tort professors in the country. In Cooper’s reply, professor Charles Silver of the University of Texas School of Law wrote that a lead attorney in an MDL who strikes a settlement on behalf of his own clients has a conflict because he owes a fiduciary duty to all the claimants.
Silver’s declaration aims to rebut a Feb. 1 response by GM that included a declaration by New York University School of Law professor Geoffrey Miller. Miller argued that lead MDL attorneys still owe a duty to their own clients.