U.S. District Judge Lucy Koh, Northern District of California. (Jason Doiy)
SAN JOSE — U.S. District Judge Lucy Koh is moving forward to impose order on the quagmire of litigation over 23andMe’s DNA testing kits.
With nine plaintiffs lawyers in court for a case management hearing Wednesday and another six ready to chime in over the phone, Koh was clearly displeased. “This is not in the interest of any putative class to have this many people,” she said. “Everyone’s been running wild for months with no organization.”
To illustrate her point, Koh held up the stack of four joint case management briefs she received before the hearing. “It’s too much,” she said.
The attorneys represent plaintiffs in nine class actions filed against 23andMe Inc. after the U.S. Food and Drug Administration asserted medical claims the company made about its DNA testing kits were unverified. Most of the suits have been transferred to Koh’s courtroom, but plaintiffs attorneys are feuding over whether the case belongs in district court or must be arbitrated.
Burlingame’s Cotchett, Pitre & McCarthy has filed a class arbitration complaint that another group has tried to block. Two San Diego firms—the Ankcorn Law Firm and Casey Gerry Schenk Francavilla Blatt & Penfield—are seeking to be appointed joint interim class counsel, with other firms expected to follow suit.
Koh made it clear Wednesday her first order will be to appoint lead counsel, although Orrick, Herrington & Sutcliffe partner Robert Varian, representing 23andMe, unsuccessfully tried to persuade Koh to first address his firm’s pending motion to compel arbitration. As far as he is concerned, the case already has a lead counsel.
“The obvious plaintiffs firm to mediate with is the Cotchett firm,” Varian said, “because they filed in the right place.”
Orrick invited Cotchett and the other firms in favor of arbitration to a preliminary mediation session scheduled for June 23 in San Francisco. The remaining firms have been left out because, according to Varian, it would be pointless to attempt to mediate with a “mass of jockeying plaintiffs firms.”
But the excluded attorneys, including Mark Ankcorn of Ankcorn Law, objected to a settlement possibly being reached in secret. “There is potential for the arbitration train to really run off the tracks,” Ankcorn said.
Koh also expressed concerns.
“You don’t think the settlement approval hearing will be a huge mess because you didn’t give all these lawyers a chance to get a piece of the action?” she asked the defense.
Varian’s team has informally agreed to postpone arbitration pending Koh’s ruling on the motion to compel, set to be argued in June.
In light of that news, Ankcorn agreed Wednesday to withdraw the motion for a temporary restraining order and preliminary injunction blocking arbitration his team filed in early April.
Koh also questioned why one group of attorneys, led by Missouri attorney Michael Flannery of Cuneo Gilbert & LaDuca, has filed two separate suits in the Northern District of California, one in Massachusetts, plus an arbitration complaint—filings that have annoyed other attorneys, who view them as duplicitous.
“We wanted to make sure those plaintiffs were represented in the jurisdiction where they felt most comfortable,” Flannery told Koh.
The case might yet become more complex. Flannery revealed Wednesday a firm he is associated with may file at least one more suit.
Koh made it clear she has no patience for stragglers.
“Whoever’s going to join this party, they need to join now,” she said. “I don’t know who this mysterious firm is, but they need to act.”
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