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Downing v. Goldman Phipps, PLLC

United States Court of Appeals, Eighth Circuit

August 22, 2014

Don M. Downing; Adam J. Levitt, on behalf of themselves and those similarly situated, Plaintiffs - Appellants
v.
Goldman Phipps, PLLC; Goldman, Pennebaker & Phipps, P.C.; Martin Phipps; Keller Stolarczyk, PLLC; Mikal C. Watts, PC; Mikal C. Watts; Stephen B. Murray, Sr.; Murray Law Firm; Charles A. Banks; Banks Law Firm, Defendants - Appellees

Submitted June 11, 2014.

Petition for certiorari filed at, 01/16/2015

Page 907

Appeal fro United States District Court for the Eastern District of Missouri - St. Louis.

For Don M. Downing, Adam J. Levitt, on behalf of themselves and those similarly situated, Plaintiffs - Appellants: Richard J. Arsenault, Jennifer M. Hoekstra, Neblett & Beard, Alexandria, LA; Stacey Kelly Breen, Wolf & Haldenstein, New York, NY; Grant Lavalle Davis, Davis & Bethune, Kansas City, MO; Don Manley Downing, Gretchen Garrison, Jason D. Sapp, Saint Louis, MO; Adam J. Levitt, Grant & Eisenhofer, Chicago, IL; Scott Ashley Powell, Hare & Wynn, Birmingham, AL.

For Goldman Phipps, PLLC, Goldman, Pennebaker & Phipps, P.C., Martin Phipps, Keller Stolarczyk, PLLC, Mikal C. Watts, PC, Mikal C. Watts, Stephen B. Murray, Sr., Murray Law Firm, Defendants - Appellees: Michael Gross, Saint Louis, MO; Peter W. Herzog Jr., Michael A. Vitale, Herzog & Crebs, Saint Louis, MO; Kimberly S. Keller, Kellar & Stolarczyk, Boerne, TX; Martin John Phipps, Goldman & Phipps, San Antonio, TX.

For Charles A. Banks, Banks Law Firm, Defendants - Appellees: Curtis Bowman, Bowman Law Firm, Mountain Home, AR; James Allen Carney, Carney & Bates, Little Rock, AR; Michael Gross, Saint Louis, MO; Peter W. Herzog Jr., Michael A. Vitale, Herzog & Crebs, Saint Louis, MO; Kimberly S. Keller, Kellar & Stolarczyk, Boerne, TX; Martin John Phipps, Goldman & Phipps, San Antonio, TX; Breean Walas, North Little Rock, AR.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

OPINION

Page 908

MURPHY, Circuit Judge.

Plaintiff class representatives Don Downing and Adam Levitt (Downing), lead counsel in a large multidistrict litigation (MDL) against Bayer CropScience LP and other defendants (Bayer), brought this action for unjust enrichment and quantum meruit against other plaintiff lawyers. The class alleges these other lawyers benefitted in their state court actions from litigation materials and work product generated in the MDL by the plaintiff class but refused to pay for it. Defendants include attorneys and firms Martin J. Phipps, Mikal C. Watts, Charles A. Banks, Goldman Phipps PLLC, Goldman Pennebaker & Phipps P.C., Mikal C. Watts P.C., Banks Law Firm PLLC, Keller Stolarczyk PLLC (the Phipps group), Steven B. Murray and the Murray Law Firm (Murray), all of whom had represented clients in both the federal MDL and the state court actions against Bayer. The district court granted defendants' motion to dismiss for lack of personal jurisdiction, and Downing appeals. We reverse and remand.

I.

Thousands of long grain rice producers located primarily in Arkansas, Louisiana, Mississippi, Missouri, and Texas, as well as certain rice millers and dealers, sued Bayer in federal and state court for damages resulting from a widespread contamination of the United States rice supply. The Judicial Panel on Multidistrict Litigation (JPML) transferred all of the federal actions to the United States District Court for the Eastern District of Missouri for its oversight and administration. The defendants' cases were among those transferred for administration from other districts by the JPML.

A number of attorneys sought to be appointed lead counsel for MDL plaintiffs including Steven Murray. His application stated that he had made a judgment that his clients' interests were best served " by being in the federal system," and that he " embrace[d] the MDL process." At an April 12, 2007 hearing attended by Murray and Martin Phipps, the district court appointed Don Downing and Adam Levitt as co lead counsel and also appointed an executive committee. The court ordered all plaintiffs to act only through this leadership and ordered the leaders to act on behalf of all the federal plaintiffs on all matters, including directing and conducting settlement negotiations. This leadership filed a motion for class certification, which the Phipps group opposed. Phipps came to Missouri for the May 22, 2008 hearing on this motion to certify a plaintiff class. The district court denied the motion.

Leadership moved to establish a common benefit fund for attorney compensation. The leaders sought to require contribution from all MDL recoveries, as well as from non MDL recoveries whose counsel had access to the MDL work product. A majority of MDL attorneys supported the motion, and some counsel for state court clients agreed to contribute to the fund. The Phipps group and Murray objected to its creation, however, as well as to the court's jurisdiction to require contribution from state court ...


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