Photo illustration: Jason Doiy/ALM

Plaintiffs lawyers vying for leadership roles in the multidistrict litigation over alleged iPhone battery defects have filed competing motions over whether their proposals adhere to recent court rulings, such as an influential decision in the Anthem data breach case.

In a motion for lead counsel filed on Thursday, Joseph Cotchett, of Cotchett, Pitre & McCarthy in Burlingame, and Laurence King, of San Francisco's Kaplan Fox & Kilsheimer, said their proposed slate of more than 40 attorneys had the “resources necessary to finance a case of this magnitude.”

“We think this is one of the largest consumer class actions in America—perhaps one of the largest in history,” said Cotchett Pitre's Mark Molumphy, a proposed secondary contact for lead counsel. “And we are very pleased to be able to garner the support of some of the most prominent class action firms to participate with us in this case.”

But Steve Berman, of Seattle's Hagens Berman Sobol Shapiro, said their proposal was far from the efficient structure that judges have been looking for, citing U.S. District Judge Lucy Koh's orders in the Anthem case trimming the proposed leadership team and hiring a special master to review a $38 million billing request by 53 law firms. By comparison, he proposed a “core team” of himself and three other lawyers at his firm to lead the cases against Apple Inc.

“The structure likely to be proposed by Mr. Cotchett threatens to become the Full Attorney Employment Act of 2018,” Berman wrote. In an email, he added: “Judge has a stark choice—lean and mean and efficient my slate—bloated and political Cotchett slate.”

U.S. District Judge Edward Davila of the Northern District of California has scheduled a May 10 hearing in San Jose on the leadership motions.

About 80 class actions have been filed alleging Apple intentionally slowed down iPhones to force consumers to buy new devices. Apple acknowledged that software upgrades could have slowed down the phones but insisted it was done to conserve battery power.

“This case needs a large team,” said Kaplan Fox's David Straite, another proposed secondary contact for lead counsel. “There are more than 1 billion iPhones that have been sold and, just counting iPhone 6 and 7, it's in the hundreds of millions of phones affected. Also, it's international in scope.”

The Cotchett/Kaplan motion noted that the law firms represent 120 of the 151 plaintiffs who have sued and that the structure is modeled on the leadership team that U.S. District Judge Charles Breyer in San Francisco appointed in the Volkswagen emissions case.

They also noted that their group would be diverse—something that the plaintiffs bar and judges have increasingly encouraged. And they defended their selection process: They vetted applications from more than 40 law firms.

“The majority group was crafted through a transparent and collaborative process open to any plaintiffs' counsel who had a case on file and who wished to participate,” they wrote.

But William Audet, of San Francisco's Audet & Partners, in a separate motion on Thursday, said discussions weren't so collaborative.

“As is typical in a case of this magnitude, certain firms have been convened behind the scenes meetings, calls, and the like in an effort to curry favor and support for these firms' appointment as lead counsel,” he wrote. Not all firms got opportunities to seek leadership roles, despite assurances to the contrary, and the proposed co-leads “treated the list of participating firms as a state secret,” he wrote.

Dueling Visions

Berman wrote there was no need for “layer upon layer of committees and inter-firm complexities.”  He made particular mention in his motion of a Feb. 1 ruling by Koh, also in San Jose, to appoint a special master in the Anthem data breach case after 53 law firms—49 more than she had appointed—sought $38 million in fees from the $115 million settlement.

On April 25, the special master's report proposed cutting $9 million off that award, noting that much of the work was duplicative.

“With a large, multipronged structure such as that which we expected to be proposed, the system itself is prone to engendering the problems that arose in Anthem,” Berman wrote. “This is good reason to reject such a structure.”

The Cotchett/Kaplan attorneys acknowledged the Anthem decision in their motion, noting that each member of the executive committee would have “a defined and nonoverlapping role.”

They also mentioned Koh's Feb. 1 order in the Yahoo data breach case, which required lead counsel to get court approval for any additional firms they wanted to bring in to assist them. To avoid such a scenario, they wrote, they identified 15 additional firms up front—so there would be no surprises.

“Here, we have the post-Anthem world,” said Kaplan Fox's Straite. “The problem is when you bring in all these firms midway through the litigation and are not familiar with the case, there's inefficiencies. So our structure does something innovative. We think this could be a model for complex litigation in the future.”

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