Court filing
AMc Amended Brief in Opposition — In re NRA Business Expenditures Litigation (N.D. Tex.)
Filed November 20, 2020 in In re National Rifle Association Business Expenditures Litigation; one of 4 filings from this case.
Record facts
| Court | United States Judicial Panel on Multidistrict Litigation |
|---|---|
| Filed | 2020-11-20 |
Full text
BEFORE THE UNITED STATES PANEL
ON MULTIDISTRICT LITIGATION
IN RE: NATIONAL RIFLE
§
ASSOCIATION BUSINESS
§
EXPENDITURES LITIGATION
§
§
MDL Docket No. 2979
§
§
§
ACKERMAN MCQUEEN, INC., ET AL.’S AMENDED MEMORANDUM OF LAW IN
OPPOSITION TO THE NATIONAL RIFLE ASSOCIATION’S
MOTION TO TRANSFER1
1 The AMc Parties are filing this Amended Opposition pursuant to the Panel’s November 19, 2020
Order.
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TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
I.
INTRODUCTION ............................................................................................................... 1
II. BACKGROUND ................................................................................................................. 2
A. The AMc Litigation. ......................................................................................................... 2
B. AMc Litigation Against Stinchfield. ................................................................................ 7
C. Dell’Aquila Class Action Against the NRA. ................................................................... 8
D. NRA Litigation Against the New York Attorney General. .............................................. 9
III.
ARGUMENTS & AUTHORITIES ............................................................................... 10
A. The Actions Do Not Share a Common Factual Core. .................................................... 11
B. Consolidation Would Create Inefficiencies, Inconveniences, and Disruptions. ............ 14
C. Simple Alternatives to Centralization Can Be Easily Coordinated Among Parties. ...... 17
D. Consolidation Would Frustrate—and Be Frustrated by—Current Judicial Orders. ...... 18
IV.
PRAYER ........................................................................................................................ 20
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TABLE OF AUTHORITIES
Cases
Goldman Phipps PLLC v. Gray, Ritter & Graham, P.C., Civil Action No. 2:13-CV-00049, 2013
U.S. Dist. LEXIS 36482 (S.D. Tex. Mar. 15, 2013) ................................................................... 9
In re “East of the Rockies” Concrete Pipe Antitrust Cases, 302 F. Supp. 244 (J.P.M.L. 1969) . 19
In re 100% Grated Parmesan Cheese Mktg. & Sales Practices Litig., 201 F. Supp. 3d 1375
(J.P.M.L. 2016) ......................................................................................................................... 12
In re Air Crash near Ellabell, Ga., 396 F. Supp. 3d 1357 (J.P.M.L. 2019) ................................. 12
In re Air Crash over the S. Indian Ocean, 190 F. Supp. 3d 1358 (J.P.M.L. 2016) ...................... 12
In re Alexsam, Inc. ('608 & '787) Patent & Contract Litig., 437 F. Supp. 3d 1374 (J.P.M.L.
2020).......................................................................................................................................... 12
In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376
(J.P.M.L. 2011) ................................................................................................................... 11, 17
In re Covidien Hernia Mesh Prods. Liab. Litig., MDL No. 2953, 2020 U.S. Dist. LEXIS 144439
(J.P.M.L. Aug. 7, 2020)...................................................................................................... passim
In re CP4 Fuel Pump Mktg. Sales Practices, & Prods. Liab. Litig., 412 F. Supp. 3d 1365
(J.P.M.L. 2019) ....................................................................................................... 15, 17, 19, 20
In re CVS Caremark Corp. Wage & Hour Empl. Practices Litig., 684 F. Supp. 2d 1377 (J.P.M.L.
2010).......................................................................................................................................... 14
In re Drowning Incident at Quality Inn Northeast, Washington, D. C., on May 3, 1974, 405 F.
Supp. 1304 (J.P.M.L. 1976) ...................................................................................................... 12
In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242 (J.P.M.L. 1978)
............................................................................................................................................. 17, 18
In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices and Antitrust Litig., 268 F.
Supp. 3d 1356 (J.P.M.L. 2017) ................................................................................................. 11
In r: Facebook Use of Name And Likeness Litig., 816 F. Supp. 2d 1380 (J.P.M.L. 2011) .... 12, 14
In re Family Dollar Stores, Inc., MDL No. 2939, 2020 U.S. Dist. Lexis 96105 (J.P.M.L Jun. 2,
2020).......................................................................................................................................... 12
In re Fisher-Price Rock 'n Play Sleeper Mktg., Sales Practices, & Prods. Liab. Litig., 412 F.
Supp. 3d 1357 (J.P.M.L. 2019) ................................................................................................. 12
In re Ford Motor Co. F-150, 412 F. Supp. 3d 1355 (J.P.M.L 2019) ............................................ 13
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In re Fout & Wuerdeman Litig., 657 F. Supp. 2d 1371 (J.P.M.L. 2009) ..................................... 11
In re Gap, Inc., Covid-19 Lease Payment Litig., MDL No. 2960, 2020 U.S. Dist. LEXIS 183689
(J.P.M.L. Oct. 2, 2020) ............................................................................................ 11, 16, 17, 18
In re Hard Disk Drive Suspension Assemblies Antitrust Litig., 396 F. Supp. 3d 1374 (J.P.M.L.
2019).......................................................................................................................................... 13
In re Helicopter Crash Near Weaverville, Cal., on Aug. 5, 2008, 626 F. Supp. 2d 1355 (J.P.M.L.
2009).......................................................................................................................................... 11
In re Hotel Indus. Sex Trafficking Litig., 433 F. Supp. 3d 1353 (J.P.M.L. 2020) ........................ 16
In re Interstate Medicaid Patients at Good Samaritan Nursing Ctr., 415 F. Supp. 3891 (J.P.M.L.
1976).......................................................................................................................................... 11
In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig., 959 F. Supp.
2d 1375 (J.P.M.L. 2013) ........................................................................................................... 16
In re Narconon Drug Rehab. Mktg., Sales Practices & Prods. Liab. Litig., 84 F. Supp. 3d 1367
(J.P.M.L. 2015) ......................................................................................................................... 11
In re Peruvian Rd. Litig., 380 F. Supp. 796 (J.P.M.L. 1974) ....................................................... 13
In re Prevagen Prods. Mktg. & Sales Practices Litig., 437 F. Supp. 3d 1381 (J.P.M.L. 2020) .. 17
In re Radioshack Corp. “ERISA” Litig., 528 F. Supp. 2d 1348 (J.P.M.L. 2007) ........................ 13
In re Skywest Airlines, Inc., 396 F. Supp. 3d 1363 (J.P.M.L. 2019)............................................. 12
In re StockX Customer Data Sec. Breach Litig., 412 F. Supp. 3d 1363 (J.P.M.L. 2019) ............. 12
In re Truck Acc. Near Alamagordo, New Mexico, on June 18, 1969, 387 F. Supp. 732 (J.P.M.L.
1975).................................................................................................................................... 12, 19
In re Truecar, Inc., S'holder Derivative Litig., 412 F. Supp. 3d 1353 (J.P.M.L. 2019) ......... 11, 17
In re Wells Fargo Wage and Hour Emp’t Practices Litig. (No. III), 804 F. Supp. 2d 1382
(J.P.M.L. 2011) ......................................................................................................................... 15
In re Zeroclick, LLC, 437 F. Supp. 3d 1362 (J.P.M.L. 2020) ....................................................... 12
Statutes
28 U.S.C. § 1407 .................................................................................................................... passim
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Ackerman McQueen, Inc. (“AMc”), Mercury Group, Inc., Henry Martin, Melanie
Montgomery, William Winkler, and Jesse Greenberg (collectively, the “AMc Parties”) hereby
submit this Response in Opposition to the National Rifle Association’s (“NRA”) Motion to
Transfer Cases for Coordinated or Consolidated Pre-Trial Proceedings (the “Motion”) .
I.
INTRODUCTION
Since early 2018, the NRA has embarked on a scorched-earth litigation strategy across the
United States. At the center of this “shoot-first, aim later” strategy is AMc, its former long-term
partner that helped the NRA become the most powerful Second Amendment advocacy group in
the Nation. When the NRA knew its non-profit status may be called into question due to its own
mismanagement and illegal acts by its executives living an opulent life at the expense of the NRA
membership, NRA leaders and counsel created a strategy to falsely paint AMc and others as the
scapegoats for its own bad acts. Once again, the NRA seeks to portray itself as a victim. Setting
aside the blatant false statements and hyperbole, the Motion reflects the latest in a series of delay
tactics, where it is now seeking to invoke the procedures of 28 U.S.C. § 1407 for improper purposes
to prejudice and delay ongoing proceedings with a variety of opponents in the various forums.
Defining these four actions as centering on “how the NRA was spending its money” is
insufficient to shoehorn the wide variety of claims, parties, and factual allegations into one
centralized litigation.2 As set forth herein, the NRA’s Motion should be denied for three
independently sufficient reasons. First, the parties, claims, and facts underlying the four actions
do not arise from a common factual core. Second, centralization does not serve the convenience
of the parties and the witnesses. Third, consolidation would create inefficiencies and unfairly
disrupt and delay already scheduled discovery and trial schedules in the pending actions. With
2 See Memorandum of Law in Support of the NRA’s Motion to Transfer (“NRA Brief”).
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only four actions and few parties with common counsel, there are alternatives to centralization.
The New York’s Office of the Attorney General (“NYAG”), AMc’s counsel in three jurisdictions,
and other litigants would be hampered and prejudiced by being thrown together, when the matters
are distinctly different. The NRA has not met its burden to show that centralization would promote
any of the principles of 28 U.S.C. § 1407 and, as such, its Motion should be denied.
II.
BACKGROUND
A. The AMc Litigation.
1. History Between the NRA and AMc.
AMc is a public-relations (“PR”) and marketing company that formerly provided PR,
crisis-management, marketing, event, and media services for the NRA for nearly forty years until
the relationship was terminated in mid-2019. In response to frustrations about the mainstream
media expressed by the NRA’s longtime Executive Vice President, Wayne LaPierre (“LaPierre”),
AMc helped the NRA develop a digital branded media platform (“NRATV”) to produce and house
the NRA’s dedicated content, which enabled the NRA to respond to breaking news in real time.
During their multi-decade relationship, the parties developed working arrangements, such
as negotiating annual budgets covering a variety of tasks, and embodied their protocols in
successive versions of a contract (the “Services Agreement”). LaPierre controlled the process and
operated with full knowledge of the NRA’s expenditures with AMc.3 The parties abided by these
3 See Ex. D ¶¶ 3, 5, 10, 17 (MDL_APP 337-45) (“Mr. LaPierre and Mr. Phillips instructed
numerous representatives of AMc to intentionally provide vague invoices with brief descriptions
to the NRA because of Mr. LaPierre’s confidentiality concerns.”); Ex. E ¶¶ 3, 6-7, 17 (MDL_APP
347-54) (“both Mr. LaPierre and Mr. Phillips often reminded me and other AMc representatives
to intentionally keep AMc’s invoices to the NRA vague.”); Ex. F ¶¶ 2, 5-10, 14, 16-17 (MDL_APP
357-65) (“Mr. LaPierre stated on numerous occasions that Mr. Brewer was the only person that
was going to keep him out of jail.”); Ex. G ¶¶ 11-14 (MDL_APP 370-72) (“[Mr. LaPierre] also
told me during that same phone call that Mr. Brewer was going to be gone in 30-60 days because
he was going to have everything resolved with the New York Attorney General.”).4 See Ex. C-G
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protocols with minimal conflict for decades as the relationship flourished. Given the transparency
of the annual budgeting process, never in their long history did either party express mistrust of the
other side’s financial dealings—until LaPierre’s problems at the NRA began to mount, and the
NRA retained attorney William A. Brewer III (“Brewer”) and his law firm, Brewer Attorneys &
Counselors (the “Brewer Firm”), in March 2018.4
Brewer is the son-in-law of Angus McQueen, the late CEO of AMc, and the brother-in-
law of Revan McQueen, AMc’s current CEO, and has been a member of the family for over twenty
years.5 Brewer promotes his law firm as one that also offers PR services in-house, making the
Brewer Firm a direct competitor of AMc in the PR industry.6
The NRA, through the Brewer Firm, began conducting purported investigations and audits
of AMc’s records shortly after the Brewer Firm’s retention—nearly a year before litigation even
began. Even in the earliest stages of its investigation, the Brewer Firm communicated with AMc’s
counsel, including Dorsey & Whitney LLP (“Dorsey”), as the parties coordinated the review of
AMc’s documents and interview of witnesses.
2. The Virginia Action.
The NRA filed its first pretextual lawsuit against AMc in Virginia state court for the alleged
refusal to turn over records during these purported audits in breach of the parties’ Services
(MDL_APP 316-72).
4 See Ex. C-G (MDL_APP 316-72).
5 Ex. I ¶¶ 2, 5-6 (MDL_APP 429-31) (McQueen Decl.).
6 See id. ¶ 3 (MDL_APP 430-31); Public Affairs, BREWER ATTORNEYS, https://www.brewer
attorneys.com/the-art-of-advocacy (the firm “position[s] [its] clients to prevail both within and
outside the courtroom” and “pioneered … an Issues & Crisis Management group”); William A.
Brewer III, Advocacy as Art: Lawyers Must Engage in Issues and Crisis Management, TEXAS
LAWYER (May 6, 2019); https://www.law.com/texaslawyer/2019/05/06/advocacy-as-artlawyers-
must-engage-in-issues-and crisismanagement/?slreturn=20200013141434.
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Agreement.7 The NRA then sued AMc again in Virginia in May 2019 for breach of fiduciary duty
and a second breach-of-contract claim relating to allegations of “leaks,” and a defamatory extortion
narrative, claiming that AMc had conspired to overthrow LaPierre.8 Finally, the NRA filed a third
lawsuit against AMc in September 2019 for return of its physical property.9
The three Virginia lawsuits were eventually consolidated into a single case (the “Virginia
Action”) and significant discovery was conducted by the parties.10 Due to the competitive nature
of the Brewer Firm’s PR services, the Virginia court entered a two-tier protective order, providing
for both a “confidential” and “highly confidential” designation, which walled-off Brewer and his
PR department from gaining access to AMc’s highly confidential business information.11 In the
Virginia Action, the NRA is represented by the Brewer Firm and AMc is represented by Dorsey.
3. The Texas Action.
Concurrently with the Virginia Action, the NRA sued AMc in the Northern District of
Texas in August 2019 (the “Texas Action”), ultimately lodging all claims previously alleged in
the Virginia Action, along with new claims for intellectual property violations related to AMc’s
use of NRATV images on AMc’s own website, as well as for fraud and breach-of-fiduciary duty12
against AMc and its individual executives for alleged instances of fraudulent billing and
7 Ex. A-3 (MDL_APP 043-58). Evidence shows that LaPierre intended to sue AMc before the
audits had ever taken place. See Ex. A-4 (MDL_APP 059).
8 Ex. A-5 (MDL_APP 060-78).
9 A third alleged breach of the Services Agreement. Ex. A-6 (MDL_APP 079-91).
10 See, infra, Section II.A.4.
11 Ex. H at 41:6-42:22 (MDL_APP 414-15); Ex. A-2 (MDL_APP 024-42).
12 In a clear effort to make its case appear stronger than it really is, the NRA’s Motion makes the
blatant misrepresentation that “the NRA claims against Ackerman for fraud and breach of fiduciary
duty recently withstood a motion to dismiss.” See NRA Brief at 3. But AMc never filed a motion
to dismiss these claims, but rather moved to dismiss the NRA’s fraud claim against Mercury
Group, Inc. (which was granted) and the breach-of-fiduciary-duty claims against AMc’s individual
executives (also granted). See Ex. A-7 (MDL_APP 092-120).
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misrepresentations about NRATV analytics.13
Contrary to the NRA’s assertion that the claims in the Texas Action all concern the “central
issue of how the NRA was spending its money,”14 not a single one of the claims alleged by either
the NRA or AMc directly involves the issue of NRA spending. Rather, the only mention of NRA
spending in AMc’s pleadings relates to background information about expenses that the NRA
incurred using AMc credit cards (and failed to provide receipts for), and the clear incentive it
provided for the NRA to manufacture claims against AMc to deflect from political scrutiny
regarding this spending.15 Instead, the true “central issues” in the Texas Action vary widely and
involve several different core factual inquiries. At its heart, the Texas Action is a breach of
contract case relating to the NRA’s failure to pay AMc for services rendered. To avoid its
contractual obligations, the NRA preemptively manufactured false narratives against AMc, such
as the use of the NRA’s intellectual property, NRATV analytics, AMc’s billing, budgeting, and
record-keeping practices, and a fictional conspiracy to overthrow LaPierre, allegations that have
repeatedly been squarely rejected by sworn testimony. The NRA’s tortious actions have further
resulted in AMc asserting claims based upon the NRA and its counsel’s defamatory statements
against AMc, LaPierre’s false and fraudulent representations to AMc about future services, and
the NRA’s failure to pay for services rendered.16
13 NRA Brief, Collins Decl., Ex. A. After the initial filing in August 2019, the NRA amended its
pleadings in October 2019 to encompass these allegations, which is the current operative pleading.
14 NRA Brief at 8. The NRA also claims the Texas Action will entail discovery regarding the
“performance by various [AMc] executives of their fiduciary duties” in connection with the NRA.
NRA Brief at 8. Yet, these fiduciary duty claims against the individual executives have already
been dismissed in the Texas Action and therefore could hardly comprise a “central issue” of any
action. Ex. A-7 at 28 (MDL_APP 119) (dismissing both counts of the NRA’s individual breach-
of-fiduciary-duty claims against AMc’s executives).
15 NRA Brief, Collins Decl., Ex. B., at 83-84 ¶¶ 22-24, 92-93 ¶¶ 49-53.
16 NRA Brief, Collins Decl., Ex. B.
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The Northern District of Texas has already entered some key rulings in the Texas Action.
Over the NRA’s objections, an identical two-tier protective order was entered.17 In her order,
Magistrate Toliver specifically recognized the Brewer Firm’s intentional efforts to circumvent the
Virginia protective order and found good cause to maintain the two-tier structure for all discovery
in the Texas Action.18 In a separate order, the court in the Texas Action has also prohibited Brewer,
individually, from participating in any hearing or trial against AMc.19 Aside from this prohibition,
the NRA is represented by other members of the Brewer Firm, and AMc is represented by Dorsey.
4. Status of Discovery and Scheduling Order.
Based on amendments to the pleadings in the Texas Action and the Virginia Action, the
NRA and AMc’s claims eventually mirrored each other across both forums.20 The Virginia court
even ordered that all discovery from the Virginia Action could be used in the Texas Action,21
including at least twelve depositions and thousands of documents produced by both parties.22
Based on the identical claims, the Virginia state court stayed the Virginia Action pending the
outcome of the Texas Action,23 the NRA’s sole pending suit against AMc (the “AMc Litigation”).
Since April 2019, the NRA and AMc have conducted extensive discovery. The NRA
falsely claims that discovery in the AMc Litigation is still in its “early stages” and, even more
bizarrely, asserts that only 3,000 documents have been produced across both the AMc Litigation
17 Ex. A-8 (MDL_APP 121-125).
18 Id. at 4 (MDL_APP 124).
19 Ex. A-9 (MDL_APP 145).
20 Compare Ex. A-10 (MDL_APP 146-200) (NRA’s Amended Complaint in the Virginia Action)
to NRA Brief, Collins Decl., Ex. A (NRA’s First Amended Complaint in the Texas Action).
21 Ex. A-11 (MDL_APP 201-03) (order permitting use of discovery from the Virginia Action in
the Texas Action).
22 Ex. A ¶¶ 5-7 (MDL_APP 002) (Mason Decl.). In the Virginia Action, the NRA produced
approximately 28,000 documents and AMc produced approximately 18,000.
23 Ex. A-12 (MDL_APP 204-06) (Order Granting Motion to Stay in the Virginia Action).
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and the Stinchfield Litigation.24 Since April 2019, the parties have exchanged nearly 1,000
discovery requests in both forums and jointly produced over 250,000 documents.25 Although
discovery remains ongoing, both parties have completed the vast majority of the production
requested through written discovery. The NRA further misrepresents that thirty-six third-party
subpoenas are currently outstanding. To date, less than ten third-party subpoenas are truly
“outstanding” as the NRA asserts,26 and none of these are relevant to the other three Actions.27
On October 5, 2020, the NRA and AMc submitted a joint status report in the Texas Action.
Both parties requested a trial date in June 2021.28 On October 13, 2020, the federal court set the
Texas Action for trial on September 7, 2021 with a June 1, 2021 discovery deadline.29
B. AMc Litigation Against Stinchfield.
When the NRA severed ties with AMc in mid-2019, the NRA pulled the plug on NRATV,
where AMc employee Grant Stinchfield (“Stinchfield”) served as a host of “Stinchfield.”30 With
its funding cut, however, AMc was unable to fulfill its contracts with numerous NRATV
personalities, including Stinchfield, who eventually had to be laid off. Disgruntled at his loss of
income, Stinchfield executed an affidavit for the NRA containing false statements about AMc and
its executives. On December 20, 2019, AMc sued Stinchfield for libel and business disparagement
in the Northern District of Texas (the “Stinchfield Litigation”). AMc, as plaintiff in the Stinchfield
Litigation, is represented by Dorsey. Stinchfield is represented by the Brewer Firm.31 Unlike any
24 NRA Brief at 11-12.
25 Ex. A ¶ 2, 5-6, 8 (MDL_APP 001-03) (Mason Decl.). See also two sworn statements by NRA
counsel describing its production of 4,200 documents. Ex. J (MDL_APP 441-43); Ex. K
(MDL_APP 444-49).
26 NRA Brief at 12.
27 Ex. A ¶ 8 (MDL_APP 002).
28 Ex. A-13 at 13 (MDL_APP 221).
29 See NRA Brief, Collins Decl., Ex. D.
30 See NRA Brief, Shaw Decl., Ex. A.
31 See NRA Brief, Shaw Decl. ¶ 1.
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issues in the AMc Litigation, the Stinchfield Litigation involves only whether Stinchfield executed
a false affidavit and the extent of harm to AMc. The NRA is not a party.
A different Northern District judge, Judge Starr, has been presiding over the Stinchfield
Litigation since it began. Nevertheless, based on the same concerns about the Brewer Firm, Judge
Starr entered a substantially identical two-tier protective order to those issued in the AMc
Litigation.32 Moreover, because the parties share common counsel, AMc’s counsel has already
conferred with Stinchfield’s counsel and offered to coordinate their discovery efforts.33
Importantly, the Stinchfield Litigation is set for trial on May 17, 2021, and the discovery
deadline is approaching (December 21, 2020).34 Thus, even if centralization were appropriate,
which it is not, there would be no additional benefit to either party to the Stinchfield Litigation
arising from coordination of the Actions as requested in this Motion. To the contrary,
consolidation would certainly interfere with the deadlines and trial in the Stinchfield Litigation.
C. Dell’Aquila Class Action Against the NRA.
In 2019, members of the NRA filed a class action lawsuit in the Middle District of
Tennessee against the NRA for allegations of fraud relating to misrepresentations about how the
NRA members’ funds would be used (the “Dell’Aquila Class Action”).35 Thus, while the NRA is
the plaintiff in the AMc Litigation, and a non-party in the Stinchfield Litigation, in the Dell-Aquila
Class Action, the NRA is the defendant. The factual core of the Dell’Aquila Class Action will
relate to the representations made by the NRA to its members and whether the NRA’s use of
member funds was consistent with those representations. Neither of these inquiries is at issue in
32 Ex. B-1 (MDL_APP 284-306) (Protective Order, Stinchfield Litigation).
33 Ex. B ¶ 4 (MDL_APP 282) (Vanderwoude Decl.); Ex. B-3 (MDL_APP 315).
34 Id. ¶ 5 (MDL_APP 282) (Vanderwoude Decl.).
35 NRA Brief, Brewer Decl., Ex. A.
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the AMc Litigation or the Stinchfield Litigation.36 Moreover, a scheduling order in the
Dell’Aquila Class Action was only recently established on November 6, 2020, setting trial for
some time in the summer of 2022, long after the discovery periods and trials of the AMc Litigation
and Stinchfield Litigation will have concluded.37 AMc has no involvement in the matter.
D. NRA Litigation Against the New York Attorney General.
On August 6, 2020, the NYAG filed a lawsuit against the NRA in New York state court
seeking dissolution of the NRA’s New York charter (“NYAG State Action”).38 That same day,
the NRA sued the NYAG in the Northern District of New York for numerous civil rights violations
related to free speech, free association, and equal protection (“NYAG Federal Action”).39
The NRA makes much ado of the NYAG State Action against the NRA.40 Indeed, it is the
primary factual focus of the Motion,41 despite the fact that, as a state court matter, it is not one of
the Actions that can be consolidated.42 Notwithstanding its arguments that the NYAG State Action
is somehow a tag-along case under a strained “compulsory counterclaim” theory,43 it is implausible
that the NYAG’s dissolution of the NRA’s New York charter for financial malfeasance—clearly
an issue of New York law to be decided by New York courts—would ever end up in federal court,
much less in the Northern District of Texas. Moreover, a group of NRA members in the NYAG
36 See Chart of Claims, Appendix B.
37 Ex. L (MDL_APP 450-54) (Dell’Aquila Class Action, Initial Case Management Order (Nov. 6,
2020)).
38 NRA Brief, Rogers Decl., Ex. A.
39 NRA Brief, Rogers Decl., Ex. B.
40 NRA Brief at 1-6.
41 Id.
42 See Goldman Phipps PLLC v. Gray, Ritter & Graham, P.C., No. 2:13-CV-00049, 2013 U.S.
Dist. LEXIS 36482, at *5 (S.D. Tex. Mar. 15, 2013) (“That statute [28 U.S.C. § 1407] allows for
the consolidation into multidistrict litigation of cases already pending in different federal district
courts . . . Nothing about that procedural statute purports to confer jurisdiction over state law claims
pending in state court.”).
43 NRA Brief at 5 n. 9.
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State Action have recently asserted that the Brewer Firm has an irreconcilable conflict representing
both the NRA and LaPierre, whose interests would be opposed if it were shown that LaPierre had
breached his fiduciary duty to the organization as the NYAG claims.44
By contrast, the central issue in the NYAG Federal Action will focus solely on the conduct
of the NYAG and whether it violated the NRA’s civil rights.45 Yet, naturally, Texas district courts
would not normally have in personam jurisdiction over the NYAG in a matter like that. The
Motion perhaps represents an effort on the part of the NRA to litigate the majority of that matter
in a venue it perceives as politically “friendlier” to the NRA than New York.
As the NRA notes in its Motion, the NYAG has already begun an investigation of the NRA
and many thousands of documents were produced during that initial investigation.46 AMc and its
counsel have already cooperated with the NYAG’s investigation into the NRA, which can be easily
coordinated again in the future as the need arises, especially because the Brewer Firm is the sole
repository for NRA-related documents and Dorsey the sole repository for AMc-related documents.
III.
ARGUMENTS & AUTHORITIES
The NRA’s Motion should be denied because it does not meet the requirements, or serve
the purposes, of 28 U.S.C. § 1407 and because simple, practical alternatives are available in lieu
of consolidation. Transfer and centralization of related civil actions are permitted where (1) the
actions “involv[e] one or more common questions of fact”; (2) transfer “will be for the convenience
of parties and witnesses”; and (3) transfer “will promote the just and efficient conduct of such
actions.”47 Moreover, centralization is appropriate only where it “is necessary in order to eliminate
44 Ex. A-15 (MDL_APP 246-280) (Ltr. from G. Douglas to Hon. J.M. Cohen (Nov. 11, 2020)).
45 NRA Brief, Rogers Decl., Ex. B; Chart of Claims, Appendix B.
46 NRA Brief at 12.
47 28 U.S.C. § 1407(a).
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duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the
parties, their counsel and the judiciary.”48
The movant bears the burden of demonstrating that centralization is appropriate.49
Importantly, this Panel has repeatedly held that, where only a minimal number of actions are
involved, the movant bears an even heavier burden to show that the benefits of centralization
outweigh the disruption to the pending actions and the inconvenience to the parties whose action
is being transferred.50 The movant should also attempt to make a showing of how informal means
of coordination have been attempted, and failed, before resorting to panel intervention.51 In fact,
centralization should be the “last solution” after all other options have been considered.52 Here,
the NRA cannot meet the heavy burden to establish that centralization is appropriate.
A. The Actions Do Not Share a Common Factual Core.
Centralization is not appropriate in situations where individual fact issues predominate in
the separate cases.53 Rather, all actions must arise from a “common factual core,” 54 such as those
48 In re Helicopter Crash Near Weaverville, Cal., on Aug. 5, 2008, 626 F. Supp. 2d 1355, 1356
(J.P.M.L. 2009).
49 See, e.g., In re Fout & Wuerdeman Litig., 657 F. Supp. 2d 1371, 1371 (J.P.M.L. 2009).
50 In re Covidien Hernia Mesh Prods. Liab. Litig., MDL No. 2953, 2020 U.S. Dist. LEXIS 144439,
at *2 (J.P.M.L. Aug. 7, 2020); In re Interstate Medicaid Patients at Good Samaritan Nursing Ctr.,
415 F. Supp. 389, 391 (J.P.M.L. 1976).
51 See In re Gap, Inc., Covid-19 Lease Payment Litig., MDL No. 2960, 2020 U.S. Dist. LEXIS
183689, at *4-5 (J.P.M.L. Oct. 2, 2020); In re Truecar, Inc., S'holder Derivative Litig., 412 F.
Supp. 3d 1353, 1354 (J.P.M.L. 2019).
52 See, e.g., In re Gap, Inc., 2020 U.S. Dist. LEXIS 183689, at *4-5; In re Covidien, 2020 U.S.
Dist. LEXIS 144439, at *2; In re Best Buy Co., Inc., Cal. Song-Beverly Credit Card Act Litig., 804
F. Supp. 2d 1376, 1378 (J.P.M.L. 2011).
53 See In re: Narconon Drug Rehab. Mktg., Sales Practices & Prods. Liab. Litig., 84 F. Supp. 3d
1367, 1368 (J.P.M.L. 2015) (denying consolidation of 21 actions because, even though the actions
shared some common factual questions, discovery would involve too many case-specific facts to
benefit from MDL centralization).
54 See, e.g., In re EpiPen (Epinephrine Injection, USP) Mktg., Sales Practices and Antitrust Litig.,
268 F. Supp. 3d 1356, 1359 (J.P.M.L. 2017) (consolidating five antitrust actions against
manufacturers and distributers of a pharmaceutical product).
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often found in product-liability actions, antitrust actions, consumer actions, employment actions,
and voluminous personal-injury actions resulting from a single event, such as a plane crash.55
However, this Panel has held many times that the mere showing of common questions of
fact between actions sought to be transferred is not sufficient to warrant transfer.56 Even where
there is “general factual overlap among the actions,” the proponent of centralization must show
that “shared factual questions are sufficiently complex or numerous to justify centralization.”57
The NRA has failed to make this showing.
55 See, e.g., In re Fisher-Price Rock 'n Play Sleeper Mktg., Sales Practices, & Prods. Liab. Litig.,
412 F. Supp. 3d 1357 (J.P.M.L. 2019) (centralizing ten product-liability class); In re 100% Grated
Parmesan Cheese Mktg. & Sales Practices Litig., 201 F. Supp. 3d 1375 (J.P.M.L. 2016)
(centralizing eight consumer actions against related to false labeling); In re Air Crash over the S.
Indian Ocean, 190 F. Supp. 3d 1358 (J.P.M.L. 2016) (centralizing eight actions resulting from
plane crash). But cf. In re Air Crash near Ellabell, Ga., 396 F. Supp. 3d 1357, 1357-58 (J.P.M.L.
2019) (finding centralization not necessary for “only four actions, brought by two plaintiff groups,
in two districts, with no indication of more to come” even though the actions shared factual issues
because “[t]he small number of involved actions, minimal number of districts, and relatively few
parties suggest that informal coordination and cooperative efforts” by the courts and counsel was
“practicable and preferable” to centralization); In re Skywest Airlines, Inc., 396 F. Supp. 3d 1363,
1363-64 (J.P.M.L. 2019) (despite common factual questions, the Panel ruled against centralization
because it found the three actions not complex with few involved counsel and because plaintiffs’
counsel represented its willingness to coordinate on discovery and other pretrial matters.).
56 See In re Alexsam, Inc. ('608 & '787) Patent & Contract Litig., 437 F. Supp. 3d 1374, 1376
(J.P.M.L. 2020) (panel denied transfer in action by single patent-holder against five defendants for
patent-infringement claims because, although actions possessed “a degree of factual
commonality,” different claims, defendants, and key facts were present in each case); In re
Drowning Incident at Quality Inn Northeast, Washington, D. C., on May 3, 1974, 405 F. Supp.
1304 (J.P.M.L. 1976) (panel denied transfer in action against different defendants arising from the
same drowning incident); In re Truck Acc. Near Alamagordo, New Mexico, on June 18, 1969, 387
F. Supp. 732 (J.P.M.L. 1975) (denying transfer despite “common if not identical” questions of fact
because informal alternatives to consolidation were available).
57 In re: Facebook Use of Name And Likeness Litig., 816 F. Supp. 2d 1380 (J.P.M.L. 2011)
(denying transfer and centralization of three class actions against common defendant because,
although discovery in all actions would involve common fact questions, individual fact issues
would predominate, and the shared factual questions were not complex or numerous); see also In
re Zeroclick, LLC, 437 F. Supp. 3d 1362, 1362 (J.P.M.L. 2020); In re Family Dollar Stores, Inc.,
MDL No. 2939, 2020 U.S. Dist. Lexis 96105, at *2 (J.P.M.L Jun. 2, 2020); In re StockX Customer
Data Sec. Breach Litig., 412 F. Supp. 3d 1363, 1364 (J.P.M.L. 2019).
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As discussed above and in the Chart of Claims, the four Actions the NRA seeks to
consolidate have very little in common.58 Nevertheless, the NRA makes the creative (but legally
and factually incorrect) assertion that “how the NRA was spending its money” is a “central issue”
to all Actions.59 The NRA cites several cases for the proposition that common questions of fact
require consolidation.60 However, every case the NRA cited involves a distinguishable situation
where the movant sought to consolidate multiple cases against a single defendant,61 or where the
movant was a single plaintiff against numerous defendants.62 The other cases the NRA cited where
the Panel granted the request for centralization involved parties who agreed to consolidate or cases
involving a vastly greater number of parties or a significantly more complex discovery protocol.63
Here, the NRA did not cite a single case similar to the situation underlying this Motion
with the disparity in legal claims or procedural posture—where there are literally no overlapping
legal claims, or where the movant simultaneously appears in the posture of plaintiff, defendant,
and non-party in the actions it seeks to centralize.64 Moreover, unlike the NRA’s authority, there
is no agreement regarding centralization, and all non-movants are opposed.65
58 See Chart of Claims, Appendix B.
59 NRA Brief at 8.
60 NRA Brief at 8 n. 18, 14 n. 55.
61 See In re MI Windows & Doors, Inc., Prod. Liab. Litig., 857 F. Supp. 2d 1374, 1375 (J.P.M.L.
2012) (common defendant facing multiple plaintiffs alleging similar breach-of-contract claims);
In re Radioshack Corp. “ERISA” Litig., 528 F. Supp. 2d 1348, 1349 (J.P.M.L. 2007) (multiple
claims by employees against single employer); In re Conseco Life Ins. Co. Cost of Ins. Litig., 323
F. Supp. 2d 1381, 1383 (J.P.M.L. 2004) (single defendant against multiple plaintiff alleging
damages from defective product).
62 See In re Peruvian Rd. Litig., 380 F. Supp. 796, 798 (J.P.M.L. 1974) (cases by single plaintiff
related to one construction project).
63 See In re Hard Disk Drive Suspension Assemblies Antitrust Litig., 396 F. Supp. 3d 1374, 1374-
75 (J.P.M.L. 2019); In re Ford Motor Co. F-150, 412 F. Supp. 3d 1355, 1355-56 (J.P.M.L 2019);
In re IDT Corp. Calling Card Terms Litig., 278 F. Supp. 2d 1381, 1381-82 (J.P.M.L. 2003).
64 See Chart of Claims, Appendix B.
65 See, e.g., In re MI Windows & Doors, 857 F. Supp. 2d at 1375.
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Although there may be some similarities or general references to similar facts, i.e., a
“common factual core,” between the Dell’Aquila Class Action and the NYAG State Action
concerning whether the NRA officers misappropriated member funds, the NYAG State Action is
not eligible for consolidation in this matter regardless of how much those facts may overlap.66 The
NRA is simply trying to use the NYAG State Action to create the appearance of a common factual
core where none exists. The federal cases are simply too different to be consolidated:
•
The AMc Litigation concerns the conduct of AMc as against the NRA.
•
AMc’s counterclaims concern the conduct of the NRA and LaPierre as against AMc.
•
The Stinchfield Litigation concerns the conduct of Stinchfield as against AMc.
•
The Dell’Aquila Class Action concerns the conduct of the NRA officers as against its
members.
•
The NYAG Federal Action concerns the NRA’s allegations of misconduct of the
NYAG as against the NRA.67
The mere fact that the Actions might share some general factual overlap regarding the
background relationship between the NRA and AMc is insufficient without a showing that the
issues are sufficiently numerous or complex to justify centralization,68 especially in a circumstance
such as this one where the number of cases to be consolidated is so small (only four).69
B. Consolidation Would Create Inefficiencies, Inconveniences, and Disruptions.
Even in situations where actions do contain one or more common questions of fact, the
66 See 28 U.S.C. § 1407(a) (providing for centralization and transfer of actions only in federal
district courts). See also In re CVS Caremark Corp. Wage & Hour Empl. Practices Litig., 684 F.
Supp. 2d 1377, 1379 (J.P.M.L. 2010) (centralization “less convincing” when “only a few or
procedurally dissimilar cases were involved”).
67 See Chart of Claims, Appendix B.
68 See In re Facebook, MDL No. 2288, 2011 WL 4684354, at *1 (denying transfer when nothing
more than background facts overlapped).
69 See In re Covidien, 2020 U.S. Dist. LEXIS 144439, at *2-3 (Panel considered “minimal” and
denied transfer of twelve cases spread across nine districts and held movant to higher standard).
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Panel must also find that transfer “will be for the convenience of parties and witnesses” and “will
promote the just and efficient conduct” of the actions.70 In cases with multiple plaintiffs or
defendants and distinct theories of liability, there is a “usual reluctance” to consolidate due to the
likelihood of prolonging pretrial proceedings and disrupting the pending actions in a manner that
is both a burden to the transferee court and the parties.71 Furthermore, whether the non-movants
oppose the transfer and centralization is one factor considered by the Panel, opposition making
centralization a “less convincing” option for the Panel.72
In light of the wide variety of claims and factual inquiries involved in the Actions, along
with disparate procedural positioning of the NRA and AMc as plaintiff, defendant, and non-parties
in the various actions, the NRA’s Motion makes no showing of how any possible benefits of
centralization would outweigh the obvious disruption to the two actions pending in the Northern
District of Texas,73 both of which would be highly likely to lose their upcoming trial settings.
In negotiating the joint disclosures related to the scheduling order for the AMc Litigation,
counsel for the NRA represented that it could be ready for trial as early as June 2021.74 Yet now,
the NRA is apparently seeking a backdoor continuance of the AMc Litigation, along with the
70 28 U.S.C. § 1407.
71 See, e.g., In re CP4 Fuel Pump Mktg. Sales Practices, & Prods. Liab. Litig., 412 F. Supp. 3d
1365, 1367 (J.P.M.L. 2019) (holding consolidation would result in “significant inefficiencies and
delays, without producing any substantial offsetting benefits”); see also In re Hartford Covid-19
Bus. Interruption Prot. Ins. Litig., MDL No. 2963, 2020 U.S. Dist. LEXIS 183685, at *3-4
(J.P.M.L. Oct. 2, 2020) (“Efficiency here is best obtained outside the MDL context. If these actions
were centralized, the transferee court would have to establish a pretrial structure to manage
numerous plaintiffs, many of which are pursuing distinct theories of liability.”).
72 See In re Wells Fargo Wage and Hour Emp’t Practices Litig. (No. III), 804 F. Supp. 2d 1382,
1384 (J.P.M.L. 2011); In re CVS Caremark Corp. Wage & Hour Empl. Practices Litig., 684 F.
Supp. 2d at 1379 (centralization is “less convincing” when some of the parties oppose
centralization or “only a few or procedurally dissimilar cases were involved”).
73 See In re Covidien, 2020 U.S. Dist. LEXIS 144439, at *2.
74 Ex. A-13 at 13 (MDL_APP 221).
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Stinchfield Litigation, based on an entirely unrelated case by the NYAG in New York State and
the NRA’s elective civil-rights lawsuit it brought in response. Moreover, the NRA made no effort
to show how the issues were so complex, or discovery so time-consuming, that consolidation was
the best option.75 Indeed, the discovery period in the Stinchfield Litigation is nearly over and an
extensive amount of discovery has already been completed in the AMc Litigation.76 The NRA’s
Motion does nothing more than make bare allegations that consolidation would “eliminate
duplicative discovery” without demonstrating how or why this might be true, and asks the Panel
to overlook the significant discovery that has already occurred (without centralization).77
In further attempting to support the element of “just and efficient conduct” enabled by
consolidation, the NRA makes reference to the possibility of “tag-along” actions that might arise
in the future.78 However, the “mere possibility” of tag-along actions, without more, is not a factor
the Panel considers in support of consolidation.79
The NRA has failed to make any showing that consolidation of the Actions in the Northern
District of Texas would do anything but delay the AMc Litigation and Stinchfield Litigation trial
settings and inconvenience the Dell’Aquila plaintiffs, the NYAG, and, most importantly, the
transferee court as it could be challenged to monitor and oversee discovery in these vastly different
75 See In re Covidien, 2020 U.S. Dist. LEXIS 144439, at *2.
76 Ex. B ¶ 5 (Vanderwoude Decl.).
77 NRA Brief at 14. Although the NRA is the plaintiff in the AMc Litigation, it has not attempted
to take depositions in any meaningful manner for nearly a year.
78 Id.
79 See In re Gap, Inc., 2020 U.S. Dist. LEXIS 183689, at *4; In re Covidien, 2020 U.S. Dist. LEXIS
144439, at *3; In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig.,
959 F. Supp. 2d 1375, 1376 (J.P.M.L. 2013); In re Hotel Indus. Sex Trafficking Litig., 433 F. Supp.
3d 1353, 1356 (J.P.M.L. 2020) (“Plaintiffs also assert that the number of actions is likely to expand
substantially, referring to potentially 1,500 additional actions. But the mere possibility of
additional actions does not support centralization, even where thousands of actions are predicted.
Moreover, our decision to deny centralization in this matter is not based on an insufficient number
of actions, but rather the lack of common factual questions in this litigation.”).
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actions with different legal theories and facts. Because transfer and consolidation would not
promote the “just and efficient” conduct of these Actions, the NRA’s Motion should be denied.
C. Simple Alternatives to Centralization Can Be Easily Coordinated Among Parties.
As this Panel has often held, “centralization under Section 1407 should be the last solution
after considered review of all other options.”80 The movant should make a showing of the prior
efforts to coordinate discovery informally before seeking relief from the Panel.81 Informal
coordination methods include: (1) deposition notices filed in all actions; (2) stipulations that
discovery relevant to more than one action may be used in all actions; (3) orders from the current
courts directing the parties to coordinate their pretrial efforts; and (4) if the claims were truly
overlapping, stays of actions in certain courts pending outcome of other actions.82 Further, when
the parties are represented by common counsel, informal coordination is made even easier and the
risk of redundant discovery reduced—a factor that further weighs against centralization.83
The NRA made no showing of how or why informal coordination efforts were not feasible,
and failed to inform the Panel of the coordination efforts that have already occurred. Nevertheless,
AMc has already demonstrated that it is willing and able to coordinate informally with all other
parties in situations where common discovery might be needed. For instance, AMc has
80 See, e.g., In re Best Buy Co., Inc., 804 F. Supp. 2d at 1378.
81 See In re Truecar, Inc., S'holder Derivative Litig., 412 F. Supp. 3d at 1354 (refusing to centralize
when movant had not explored the option of informal coordination as an alternative to
centralization).
82 See In re Eli Lilly & Co. (Cephalexin Monohydrate) Patent Litig., 446 F. Supp. 242, 244
(J.P.M.L. 1978) (listing various methods for minimizing duplicative pretrial proceedings); see also
In re Gap, Inc., 2020 U.S. Dist. LEXIS 183689, at *4-5; In re Prevagen Prods. Mktg. & Sales
Practices Litig., 437 F. Supp. 3d 1381, 1382 (J.P.M.L. 2020); In re Truecar, Inc., S'holder
Derivative Litig., 412 F. Supp. 3d at 1354.
83 See In re Covidien Hernia Mesh Prods. Liab. Litig., 2020 U.S. Dist. LEXIS 144439, at *3-4; In
re CP4 Fuel Pump, 412 F. Supp. 3d at 1366; In re SLB Enter. Rico Litig., 412 F. Supp. 3d 1350,
1351-52 (J.P.M.L. 2019); In re Cymbalta (Duloxetine) Prods. Liab. Litig., 65 F. Supp. 3d 1393,
1394 (J.P.M.L. 2014).
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coordinated with the NYAG’s investigation into the NRA.84 Counsel for AMc has also attempted
to coordinate documents produced in the Stinchfield Litigation for use in the AMc Litigation
despite the NRA and the Brewer Firm’s refusal thus far.85 To the extent that any factual issues
overlap, AMc is willing to continue to coordinate with the NYAG and the Dell’Aquila plaintiffs,
as the need arises.86 And certainly, AMc can continue coordinating with the NRA’s counsel, as it
has been doing for over two years. Plus, depositions could potentially be cross-noticed to the
extent appropriate.87 Moreover, if the NRA truly believes any claims overlap, it would in large
part be due to the Brewer Firm’s insistence on its cross-country litigation strategy to financially
oppress its opponents into submission.88 The NRA is represented by a single law firm that has
spearheaded the NRA’s vexatious litigation strategy since early 2018 and, through this Motion, is
effectively seeking to unwind the litigious web it has woven.89 Regardless, even if claims actually
overlap (they do not), the NRA may move to stay certain actions pending the outcome of others,
as has been done relating to the Texas Action (namely, the staying of the Virginia Action).90
In sum, the parties have already demonstrated their ability to work together to coordinate
discovery, and numerous informal alternatives exist to the onerous relief the NRA seeks.
D. Consolidation Would Frustrate—and Be Frustrated by—Current Judicial Orders.
Finally, the Panel is typically “hesitant” to centralize cases when the need to protect trade
84 Ex. A ¶ 9 (MDL_APP 003) (Mason Decl.).
85 See Ex. B ¶ 4 (MDL_APP 282) (Vanderwoude Decl.).
86 Ex. A ¶ 9 (MDL_APP 003) (Mason Decl.).
87 See, e.g., In re Gap, Inc., 2020 U.S. Dist. LEXIS 183689, at *4-5; In re Eli Lilly, 446 F. Supp.
at 244.
88 See In re Snider, 437 F. Supp. 3d 1371, 1372 (J.P.M.L. 2020) (“Additionally, plaintiff appears
to seek centralization for an improper purpose – that is, to fix a perceived mistake in how he filed
his actions and to avoid a court he perceives as ‘hostile’ to his claims”).
89 Attached as Appendix A is a list of all litigation and arbitration the NRA filed or in which the
NRA been named as a defendant since May 2018.
90 See In re Eli Lilly, 446 F. Supp. at 244.
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secrets and confidential information would complicate case management.91 Further, transfer will
be denied when it appears that the movant’s request is made for an “ulterior motive” instead of the
designed purposes of Section 1407.92 Brewer is lead counsel in the NYAG Federal Action, and
the NRA has admitted in prior filings that Brewer oversees all of the NRA’s litigation.93
Here, in addition to the factors discussed above, consolidation is made further impractical
due to three judicial orders already in place in the Northern District of Texas. First, the AMc
Litigation and Stinchfield Litigation have two-tier protective orders in place.94 These protective
orders were customized for those actions, first in the Virginia Action, then in the two Northern
District courts, due to the uniquely competitive relationship between AMc and the Brewer Firm,
both of whom provide PR, crisis-management, and speech-writing services.95 These orders enable
AMc to designate certain business information as “highly confidential,” thereby preventing
Brewer and his PR department from accessing it. Consolidation of the Actions would likely
eviscerate these protective orders and complicate the management of documents and discovery.
Second, based on the family relationship between Brewer and AMc’s CEO and on
Brewer’s status as a competitor, Brewer himself has been prohibited from appearing on behalf of
the NRA or at any hearing or trial in the AMc Litigation.96 If these Actions were consolidated,
this prohibition would become largely meaningless and could threaten the protection of AMc’s
91 See In re CP4 Fuel Pump, 412 F. Supp. 3d at 1367.
92 See In re “East of the Rockies” Concrete Pipe Antitrust Cases, 302 F. Supp. 244, 255-256
(J.P.M.L. 1969) (Weigel, J., concurring); In re Alamagordo Truck Accident, 387 F. Supp. at 734.
93 See NRA Brief, Rogers Decl., Ex. B; Ex. A-14 at 1 (MDL_APP 230) (“The dispute centers on
Defendants’ efforts to attempt to disqualify indirectly the NRA’s lead litigation counsel, Mr.
William Brewer III, from this case . . .”).
94 See Ex. A-8 (MDL_APP 121-125); Ex. B-1 (MDL_APP 284-306).
95 See Ex. C at ¶ 3 (MDL_APP 317) (describing services provided by AMc); Public Affairs,
BREWER ATTORNEYS, https://www.brewerattorneys.com/the-art-of-advocacy (last visited Nov.
10, 2020) (describing PR services provided by the Brewer Firm).
96 See Ex. A-9 at 20 (MDL_APP 145).
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confidential information. Alternatively, centralization would unnecessarily complicate the
transferee court’s attempt to incorporate these additional orders into its case-management efforts.97
Finally, it is inconceivable that, after two years of their “spectator sport” litigation approach
and after numerous reports establishing that the NRA has paid the Brewer Firm tens of millions of
dollars, the NRA and Brewer Firm would now be concerned with efficiencies or conveniences for
the parties, witnesses, or courts. Centralization in this matter would benefit no one but the NRA,
its counsel, and their vexatious litigation strategy, and as such, the Motion should be denied.
IV.
PRAYER
For the reasons stated herein, centralization is not necessary for the convenience of the
parties and witnesses or to further the just and efficient conduct of any of the Actions. The AMc
Parties respectfully request that the Panel deny the NRA’s Motion.
97 See In re CP4 Fuel Pump, 412 F. Supp. 3d at 1367.
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Dated: November 20, 2020.
Respectfully submitted,
/s/ G. Michael Gruber
G. Michael Gruber, Esq.
Texas Bar No. 08555400
gruber.mike@dorsey.com
Jay J. Madrid, Esq.
Texas Bar No. 12802000
madrid.jay@dorsey.com
J. Brian Vanderwoude, Esq.
Texas Bar No. 24047558
vanderwoude.brian@dorsey.com
Brian E. Mason, Esq.
Texas Bar No. 24079906
mason.brian@dorsey.com
DORSEY & WHITNEY LLP
300 Crescent Court, Suite 400
Dallas, Texas 75201
(214) 981-9900 Phone
(214) 981-9901 Facsimile
ATTORNEYS FOR AMc PARTIES
PROOF OF SERVICE
In compliance with Rule 4.1(a) of the Rules of Procedure for the United States Judicial
Panel on Multidistrict Litigation, I hereby certify that copies of the foregoing Memorandum of
Law in Opposition to the NRA’s Motion to Transfer was served electronically via ECF on all
parties in all involved actions, on November 18, 2020.
/s/ G. Michael Gruber
G. Michael Gruber, Esq.
Case MDL No. 2979 Document 33 Filed 11/20/20 Page 25 of 25File and source
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