Law360, August 10, 2023
A trio of firms including Cohen Milstein accused rival firms vying to be lead plaintiffs’ counsel in an antitrust suit against fragrance manufacturers of trying to “stuff the ballot box,” saying a Lieff Cabraser declaration in support of the rivals is just the latest attempt to inappropriately place a finger on the scale.
Quinn Emanuel Urquhart & Sullivan LLP, Cohen Milstein Sellers & Toll PLLC and Calcagni & Kanefsky LLP are seeking to be named co-lead counsel in the case, and in a Tuesday letter to a New Jersey federal judge, an attorney for Calcagni & Kanefsky said the rival firms are “transparently” trying to improve their odds through the declaration from Lieff Cabraser in support of their bid.
The firms complaining in Tuesday’s letter — which collectively call themselves the Market-Allocation Group in a nod to their case’s legal theory — allege that the rival firms Nussbaum Law Group PC, Korein Tillery PC and Hausfeld LLP, calling themselves the Price-Fixing Group, think lining up “votes” from “self-interested” firms like Lieff Cabraser will improve their odds.
The Tuesday letter, written by Eric T. Kanefsky of Calcagni & Kanefsky, says that “in the past few days, after briefing on the issue of lead-counsel was complete, yet another law firm (Lieff Cabraser) filed yet another copycat complaint and yet another copycat ‘declaration’ in support of the Price- Fixing Group’s leadership application.”
“Cabraser, like the other firms supporting the Price-Fixing Group, are transparently pre-arranging themselves to stuff the ballot box with the ‘votes’ of self-interested attorneys,” the letter continued. “But the effort is both procedurally improper and self-defeating.”
Rule 23 of the Federal Rules of Civil Procedure does not allow for the court to simply count votes, according to the letter.
“This is for good reason: the votes of attorneys may inform the court about what is in the best interest of the attorneys, but very little about what is in the best interest of the class,” the letter reads, italicizing “attorneys” and “of the class” for emphasis.
The Price-Fixing Group filed a proposed class action in April against Givaudan SA, International Flavors & Fragrances Inc., Symrise AG and Firmenich SA, alleging the fragrance companies fixed their prices. The suit came one month after the Swiss Competition Commission announced a global investigation into the companies.
The Market-Allocation Group argued in July it has a more complete theory of liability than its rivals to drive the suit. The defendant companies, it holds, were not simply fixing prices, but rather segmenting the market through a “gentleman’s agreement” to produce only certain fragrances — even though they had the technology to reverse-engineer competing products and re-create them.
In a declaration on Monday, a partner for Lieff Cabraser Heimann & Bernstein LLP, Lin Y. Chan, said the firm represents Yosh Han, a perfume maker and direct purchaser, in a related lawsuit before the court alleging a cartel among fragrance manufacturers. That case is Han v. International Flavors & Fragrances. The declaration said the firm supports the Price-Fixing Group’s bid to be lead plaintiff and lead counsel.
“We are cognizant that Quinn/Cohen Milstein criticize the size of the group supporting Nussbaum, Korein Tillery, and Hausfeld,” Chan said in the declaration. “Efficiency concerns, however, can be effectively managed through protocols that streamline litigation and limit duplicative work.”
In response, Kanefsky said among other things that the declaration “is improper because it serves as a de facto unauthorized sur-reply brief for the Price-Fixing Group,” and that the declaration shows an intent to have a “thirteenth firm join their group, which is yet another firm for lead counsel to dole assignments out to.”
He added “We carry no such ‘gravy train’ behind us, and thus will operate far more efficiently.”
In a Thursday reply in support of its cross-motion for appointment of lead counsel, the Market-Allocation Group said the Price-Fixing Group “mischaracterizes our plan for litigating this case. It is true that, for simplicity, our papers use theory-based labels for the competing groups of counsel.”
“It is also true that our firms uniquely developed a market allocation theory,” the motion continued. “But contrary to the Price-Fixing Group’s assertions, none of this means we have ‘forsworn’ pursuing other theories.”
Counsel for the Market-Allocation Group and Price-Fixing Group did not immediately respond to requests for comment.
Our Own Candle Co. Inc., Candle Shoppe of the Poconos Inc., B&E Associates Inc., Demeter F.L. Inc. and Hanna’s Candle Co. are represented by Linda Nussbaum of Nussbaum Law Group PC, Christopher Burke of Korein Tillery PC, Hilary Scherrer of Hausfeld LLP and James E. Cecchi of Carella Byrne Cecchi Olstein Brody & Agnello PC.
Crimson Candle Supplies LLC is represented by Eric Kanefsky, Ralph J. Marra, Thomas R. Calcagni and Martin Gandelman of Calcagni & Kanefsky LLP, Michael Eisenkraft, Laura Posner, Christopher Bateman, Zachary Krowitz, Nina Jaffe-Geffner and Daniel H. Silverman of Cohen Milstein Sellers & Toll PLLC, Daniel L. Brockett, Manisha M. Sheth and Jeremy D. Andersen of Quinn Emanuel Urquhart & Sullivan LLP, and Curt Lockhart of Lockhart IP.
Givaudan Fragrances Corp., Givaudan Flavors Corp. and Ungerer & Co. Inc. are represented by Kevin Reed Reich of Gibbons PC.
International Flavors & Fragrances Inc. is represented by Boris Bershteyn, Matthew Martino, Tansy Woan and Andrew Muscato of Skadden Arps Slate Meagher & Flom LLP.
The case is Our Own Candle Co. Inc. v. Givaudan SA et al., case number 2:23-cv-02174, in the U.S. District Court for the District of New Jersey.
–Additional reporting by Jake Maher. Editing by Linda Voorhis.
By Craig Clough on 8/14/2023 at 2:10 PM
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