Opinion
MDL No. 1430, Master File No. 01-CV-10861-RGS.
December 21, 2004
ORDER ON MDL PLAINTIFFS' MOTION TO ENJOIN SPECIFIC CONDUCT OF INTERVENOR'S COUNSEL
On November 24, 2004, this court preliminarily approved a class settlement agreement reached by the Multi-District Litigation (MDL) parties in this complex litigation over the pricing of the drug Lupron®. The MDL plaintiffs now ask that the court enter an order enjoining the law firm of Kline Specter (KS), counsel for the intervenors Valerie Samsell and Milton Greene, from engaging in improper communications with the Lupron Purchaser Class as a weapon in its avowed campaign to scuttle the settlement. More specifically, the MDL plaintiffs complain that KS has: (1) improperly communicated with members of the Lupron® Purchaser Class; (2) disseminated false, misleading and confusing information to members of the Lupron® Purchaser Class concerning both the MDL settlement and the status of other state court proceedings related to Lupron®; (3) improperly solicited opt-outs from the MDL settlement; and is (4) pursuing plans to conduct individual trials of Lupron®-related claims in state court proceedings (presumably as a means of distracting or harassing the MDL defendants). The MDL defendants join the MDL plaintiffs in seeking relief.
After reviewing the plaintiffs' filings, the court issued a short order of notice to KS, directing it to file an opposition to the plaintiffs' motion on or before December 17, 2004. On December 20, 2004, the court received a memorandum opposing both MDL plaintiffs' and defendant's emergency motions, including an affidavit of Donald Haviland, Jr., Esq., a principal of KS.
DISCUSSION
"Because of the potential for abuse [in class actions], a district court has both the duty and the broad authority to exercise control over a class action and to enter appropriate orders governing the conduct of counsel and parties. . . . But this discretion is not unlimited, and indeed is bounded by the relevant provisions of the Federal Rules of Civil Procedure, including Rule 23(d), governing class actions which gives the court discretion to `make appropriate orders: . . . (3) imposing conditions on the representative parties or on intervenors . . . [and] (5) dealing with similar procedural matters.'" Gulf Oil Co. v. Bernard, 452 U.S. 89, 99-100 (1981). Any restriction on speech imposed in this context must be supported by a
clear record and specific findings that reflect a weighing of the need for a limitation and the potential for interference with the rights of the parties. Only such a determination can ensure that the court is furthering, rather than hindering, the policies embodied in the Federal Rules of Civil Procedure, especially Rule 23. In addition, such a weighing — identifying the potential abuses being addressed — should result in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances.Id., at 101-102.
The court has undertaken its own review of the KS websites,www.lupronlaw.com and www.lupronclass.com. The court finds that the banner welcoming potential members to "the class" and inviting Lupron® purchasers "to register for the Lupron class action," is blatantly misleading and deliberately intended to deceive potential plaintiffs into believing that the websites are either court-sanctioned or sponsored by the MDL plaintiffs. After clicking on the registration icon, the first field poses the following question. "Did you or someone you know pay for Lupron® injections between 1985 and the present?" If answered affirmatively, a second field prompts the user to fill out "registration" information. The personal information section is immediately followed by the option, "I would like to decline the defendants' offer to settle and be included in litigation in the state courts." The typical registrant would not know that he or she is not in fact registering as a plaintiff in the MDL action, or that if he or she elects to be included "in litigation in the state courts" there may be no recovery at all. KS and Attorney Haviland are perfectly free to criticize the proposed settlement agreement. However, they are not privileged to engage in deceptive conduct manipulating the very consumers they claim to protect.
ORDER
Plaintiffs' Motion to Enjoin Conduct is therefore ALLOWED in part. KS is to remove forthwith the "Register for the Lupron Class Action" field from its Lupron websites (including but not limited to www.lupronlaw.com and www.lupronclass.com.). KS will produce within five business days to the court a complete list of any "registrations" that occurred prior to the issuance of this injunction. The list may be submitted under seal pending further orders of the court. KS will immediately place information in a prominent location on its Lupron®-related websites clearly explaining that the content of these sites has not been approved by the MDL court and that the sites are not affiliated with the MDL plaintiffs' counsel. A hearing will be held in Thursday, January 6, 2005 at 10:30 a.m., in Courtroom 21 at the John Joseph Moakley Courthouse to determine whether further relief, as requested by the MDL plaintiffs and defendants, is warranted.
SO ORDERED.