Lead counsel picked in Toyota class action

Steve Korris May 20, 2010, 11:59am

SANTA ANA, Calif. (Legal Newsline) - Daniel Becnel of Reserve, La., pushed all his persuasive powers on a judge picking leaders for a national class action over Toyota accelerators, but Becnel didn't make the cut.

The lead counsel committee that U.S. District Judge James Selna appointed on May 14 for economic class actions didn't include Becnel.

Dozens of lawyers competed for appointments after the U.S. Judicial Panel on Multi District consolidated federal cases on April 9 and transferred them to Selna.

None tried harder than Becnel. He applied first, on April 22.

"While it is not my intention to try to influence the court, I do not believe anyone in the country has as much experience that I have in MDLs over the past 25 years," Becnel wrote.

"My work ethic and that of my office is unparalleled in the country," he wrote.

"Three of my sons are lawyers," he wrote, and he described their achievements.

"My practice has allowed me to appear in over 40 chemical fires, explosions, train derailments and the like cases," he wrote.

"Our office was involved in the South Carolina train derailment which killed seven and injured 6,000," he wrote.

"My office was also hired by 83,000 people in the Katrina flood cases against the U.S. Army Corps of Engineers," he wrote.

In a supplement on April 26, he advised Selna to set up a program to comply with a new Supreme Court decision on attorney fees.

"A further suggestion is that the committee members be appointed for a one year term, subject to reappointment by the court should people who are appointed fail to pay assessments and/or fail to perform services required on behalf of individual clients and/or the class," he wrote.

In a supplement on April 30, he wrote that he and brother Robert Becnel provided information to Congress on the cause of the oil rig failure that took 11 lives.

"My office not only filed the first lawsuit in that case but also filed for the MDL," he wrote.

"Despite having taken a few days to handle that matter, I have continued to work on the Toyota case," he wrote.

Selna received 75 applications, not only for the class action leadership group but also for a group guiding personal injury and wrongful death litigation.

Selna indicated from the start that he would appoint separate leaders for the groups.

Ben Barnow of Chicago proposed to split the economic loss cases into two groups, one for consumers and one for dealers, rental agencies and fleet owners.

He predicted conflicts of interest over a limited pool of assets and wrote, "It is unclear at this stage just what assets Toyota brings to this litigation."

Barnow wrote that Moody's downgraded its credit rating.

"Toyota forecasts an operating loss of $1.65 billion for the fiscal year," he wrote.

On May 3, Selna gave everyone three days to respond.

Becnel answered first, in two days, writing that interests of consumers and others were largely aligned.

Individuals asserting unjust enrichment or diminished value were situated similarly to rental agencies seeking damages for their losses, he wrote.

On May 6, Mark Moore of Los Angeles wrote that all plaintiffs had an overriding common interest in holding Toyota liable and recovering damages and restitution.

He wrote that Toyota has hundreds of billions in market capitalization and at least $40 billion in cash on hand.

Eric Snyder of Charleston, W.V., wrote that a conflict may arise where a defendant's resources are insufficient to satisfy all claims.

"That circumstance is not alleged here," he wrote.

"Decisions will be made by committee, and there should be no opportunity for any attorneys to unduly influence the course of the litigation," he wrote.

Elizabeth Cabraser of San Francisco and Mark Robinson of Newport Beach, Calif., wrote that Toyota's revenues in 2009 exceeded $200 billion.

"Prioritized discovery into Toyota's finances is relevant for many reasons, including punitive damages claims," they wrote.

Others perceived conflicts of interest for dealers and rental companies.

Burton Finkelstein of Washington wrote that dealers may have long term relations with Toyota and may have received information buyers didn't receive.

Jerome Ringler of Los Angeles perceived a conflict between a rental car class and others because rental companies sell cars directly to consumers at the end of their useful life.

On May 14, Selna declared concerns over conflict of interest speculative in view of Toyota's $2.2 billion profit for the fiscal year ending March 31.

Rather than split economic loss leadership, he created a single committee of nine and loaded it with seven consumer lawyers.

He appointed three leaders, picking Steven Berman of Seattle and Marc Seltzer of Los Angeles for consumers and Frank Pitre of Burlingame, Calif., for the others.

He picked consumer lawyers Benjamin Bailey of Charleston, W.V., Richard Arsenault of Alexandria, La., Stanley Chesley of Cincinnati, Jayne Conroy of New York and Michael Kelly of El Segundo, Calif.

Selna picked Ringler to represent nonconsumers.

For the personal injury committee, Selna named Cabraser and Robinson as leaders.

He also appointed Lewis Eidson of Coral Gables, Fla., Mark Lanier of Houston, Richard McCune of Redlands, Calif., Daniel Miles of Montgomery, Ala., Brian Panish of Los Angeles, Hunter Shkolnik of New York and Donald Slavik of Milwaukee.

He scheduled a hearing May 28 to set a deadline for filing a consolidated class action complaint or complaints, and a hearing June 25 on discovery.

The multi district panel chose California's Central District because Toyota maintains American headquarters there and more cases were pending there than anywhere else.

Multi district judges preside over pretrial proceedings.

For trials, they send cases back to courts where they started.

Lawyers had filed 299 federal cases and 99 state court cases as Of May 12, according to a Toyota lawyer seeking consolidation of 15 state court suits in Texas.

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