U.S. District Judge Lucy Koh, Northern District of California. (Jason Doiy)
SAN JOSE — A group of San Diego law firms has won the coveted lead role in a series of class actions against genetic testing company 23andMe Inc., ending a weekslong feud between plaintiffs attorneys.
Gayle Blatt of Casey Gerry Schenk Francavilla Blatt & Penfield and Mark Ankcorn of the Ankcorn Law Firm will represent a potential class of customers who bought genetic testing kits from 23andMe. Plaintiffs argue they are entitled to compensation after the U.S. Food and Drug Administration found claims 23andMe made about the kits’ medical benefits were unverified.
For weeks attorneys representing plaintiffs in nine cases filed throughout the U.S. had been jockeying for power, with three groups filing motions to be appointed interim class counsel. The cases have been transferred or are in the process of being transferred to the San Jose courtroom of U.S. District Judge Lucy Koh, who put an end to the fight Wednesday night with a concise, two-page order issued just two hours after the lead counsel hearing ended.
The Ankcorn and Casey Gerry group, which filed the first complaint against 23andMe in the Southern District of California, beat out Bethesda, Md.-based Charles LaDuca of Cuneo Gilbert & LaDuca, as well as a team made up of Los Angeles-based Marc Godino of Glancy Binkow & Goldberg and San Francisco-based Rosemary Rivas of Finkelstein Thompson.
A main factor in Koh’s decision was how the competing firms proposed to handle a pending motion to compel arbitration, filed by 23andMe’s counsel at Orrick, Herrington & Sutcliffe, that loomed over Wednesday’s proceedings.
“The issue of arbitration will immediately affect the interests of the putative class,” Koh wrote. “[Blatt and Ankcorn] have been the most active and consistent in opposing arbitration, filing an early motion (now withdrawn) to enjoin co-pending arbitrations that may affect class interests.”
Cuneo Gilbert was less consistent about opposing arbitration. LaDuca’s rivals argued his firm conceded ground to the defense by filing an arbitration complaint in addition to two separate federal court complaints.
“They have conceded a fundamental issue in this case—the applicability of 23andMe Inc.’s arbitration clause—by pursuing arbitration in an attempt to leverage a stake for themselves in the case to the detriment of the class,” Glancy Binkow attorneys wrote in a brief filed prior to Wednesday’s hearing.
Cuneo Gilbert has since stepped aside from the pending arbitration, leaving those proceedings in the hands of San Francisco’s Audet & Partners.
“We did withdraw just in the interest of silencing the critics,” LaDuca told Koh.
He argued filing in both forums helped ensure his clients would be represented in the event Koh upholds 23andMe’s motion to compel arbitration.
The two additional complaints Cuneo Gilbert filed in federal court also muddled the litigation, the competing plaintiffs firms contended.
“These actions seem to have only increased the number of attorneys and jurisdictions involved, creating duplication of effort and expense,” Ankcorn and Blatt wrote.
In contrast, Koh wrote Ankcorn and Blatt made efforts to coordinate among plaintiffs. Attorneys representing plaintiffs in four other 23andMe cases have put their support behind the Ankcorn and Casey Gerry attorneys.
During the hearing, Koh brought up a potential vulnerability Blatt and Ankcorn could face if appointed. Ankcorn originally sued 23andMe on behalf of Lisa Casey, the wife of Casey Gerry partner David Casey.
Blatt and Ankcorn were quick to deny any impropriety. Lisa Casey withdrew as plaintiff because she was uncomfortable with the media attention she received, Ankcorn told Koh. Several weeks later, the Casey Gerry firm joined the case.
“The innuendo, the speculation, the assumption, the cruising around websites to find relationships, doesn’t really advance the ball here,” Blatt said Wednesday.
When asked if the defense might use that husband-wife relationship against plaintiffs, Blatt said, “Bring it on. … If they want to hear about it, trust me it will not affect or do anything to injure the class.”
Koh didn’t mention the husband-wife relationship in her order.
Ankcorn and Blatt’s lead counsel position also will likely score them an invitation to a June mediation previously closed to the San Diego attorneys. Only counsel in favor of arbitration had been invited, but 23andMe attorney James Kramer, chairman of Orrick’s securities litigation and regulatory enforcement group, told Koh over speakerphone Wednesday the defense intends to include whichever lead plaintiff was appointed.
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