Bahamas Surgery: Case 2:14-cv-08390-DMG-PLA Document 624 Filed 05/10/19 Page 15 of 15 Page ID #:44126

Case 2:14-cv-08390-DMG-PLA Document 624 Filed 05/10/19 Page 1 of 15 Page ID
#:44112
1 WILLIAM C. HEARON, P.A.

William C. Hearon (admitted pro hac vice)
2 1 S.E. Third Avenue
Suite 3000
3 Miami, Florida 33131
Ph: 305-579-9813
4 Fax: 305-358-4707
bill@williamhearon.com
5
AI LAW
6 Ahmed Ibrahim, State Bar No. 238739
4343 Von Karman Ave, Suite 250
7 Newport Beach, CA 92660
Ph.: 949-260-1240
8 Fax: 949-260-1280
aibrahim@ailawfirm.com
9
Attorneys for Plaintiffs, Individually and On
10 Behalf of All Others Similarly Situated
11
UNITED STATES DISTRICT COURT
12
CENTRAL DISTRICT OF CALIFORNIA
13
14 BAHAMAS SURGERY CENTER, LLC, CASE NO.: 14-CV-08390 DMG (PLA)
15 Plaintiff,
vs. WILLIAM HEARON AND
16 AHMED IBRAHIM’S REPLY IN
KIMBERLY-CLARK CORPORATION,
17 a Delaware Corporation, and HALYARD SUPPORT OF MOTION TO
HEALTH, INC., a Delaware APPOINT INTERIM
18 Corporation, CLASS COUNSEL
19
Defendants. Hearing Information:
20
21
Date: May 24, 2019
Time: 9:30 a.m.
22 Courtroom: 8C
23
24
25
26
27
28
REPLY IN SUPPORT OF MOTION TO APPOINT INTERIM CLASS COUNSEL

#:44113
1 TABLE OF CONTENTS
2
3 I. INTRODUCTION………………………………………………...…………….1
4
II. THE RECEIVER’S OBJECTIONS TO MESSRS. HEARON AND IBRAHIM
5 SHOULD BE DISREGARDED BECAUSE THE RECEIVER ADVISED
THEM THAT HE DOES NOT SUPPORT NOR OPPOSE THEIR
6
MOTION………………………………………………………………………..1
7 III. ANY CONCERNS ABOUT MR. AVENATTI’S CONTINUING ROLE ARE
8 MOOT BECAUSE HE HAS ALREADY AGREED TO STEP DOWN AS
LEAD CLASS COUNSEL………………………………………..……………2
9
10
IV. THE RECEIVER’S SUPPOSED “WARNING” SIGNS ARE RED
HERRINGS……………………………………………………..………………4
11
V. THE MOVING PARTIES DO NOT HAVE ANY CONFLICTS OF
12 INTEREST WITH THE CLASS………………………………..……………...6
13 VI. THE RECEIVER’S ARGUMENT THAT MOVING PARTIES ARE
14 OPPOSED TO THE CONCEPT OF SETTLEMENT NEGOTIATIONS. IS
WITHOUT MERIT……………………………………...……………………...8
15
VII. THE RECEIVER’S PROPOSED COUNSEL IS NOT A BETTER
16
ALTERNATIVE TO MOVING PARTIES BECAUSE MOVING PARTIES
17 HAVE THE MOST INTIMATE KNOWLEDGE AND EXPERIENCE
CONCERNING THE RELEVANT ISSUES ON APPEAL …………..………9
18
19 VIII. THE ADVISORY BRIEF OF DEFENDANTS SHOULD BE

IGNORED……………………………...……………………………………...10
20
IX. CONCLUSION………………………..………………………………………11
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1 TABLE OF AUTHORITIES
2
3 CASES
4 Allen v. Hyland's Inc., 300 F.R.D. 643 (C.D. Cal. 2014) …………………………………7
5 Kayes v. Pacific Lumber, 51 F.3d 1449 (9th Cir. 1995) ………………………………….7
6 Sandoval v. Ali, 34 F. Supp. 3d 1031 (N.D. Cal. 2014) …………………………………..7
7 Sullivan v. Chase Inv. Servs. of Bos., Inc., 79 F.R.D. 246 (N.D. Cal. 1978) ………...…...7
8
9 TREATISES
10 William B. Rubenstein, 1 Newberg on Class Actions § 3:75 (5th ed.) …………………..7
11
12
13
14
15
16
17
18
19
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25
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1 I. INTRODUCTION
2 Attorneys William C. Hearon and Ahmed Ibrahim (“Moving Parties”) file this
3 reply in support of their motion to be appointed interim class counsel and to respond to
4 the points raised (i) by Brian Weiss, receiver for Eagan Avenatti, LLP (the “Receiver”) in
5 his opposition to Moving Parties’ motion and (ii) by defendants Kimberly-Clark
6 Corporation and Halyard Health, Inc. (“Defendants”) in their brief responding to the
7 motion.
8 As a preliminary matter, the matters argued in both briefs should be disregarded
9 because both the Receiver and Defendants advised Moving Parties during the Rule 7-3
10 meet and confer communications that they did not support or oppose Moving Parties’
11 motion. Although nothing has changed between the time they met and conferred in early
12 April and the present, the Receiver has now reversed course and fully opposes the
13 Moving Parties’ motion. The Receiver should not be permitted to “game” and
14 manipulate the meet and confer process. He must be held to the position he articulated at
15 the conclusion of this process.
16 The remainder of the Receiver’s arguments must be rejected. Nothing presented in
17 the Receiver’s opposition changes the simple fact that Moving Parties are the most
18 knowledgeable and experienced attorneys concerning the issues presently on appeal
19 before the Ninth Circuit and that they have the support of the capable, duly-appointed
20 class representative in this litigation. Despite the Receiver’s best efforts to lodge
21 unfortunate personal attacks against Moving Parties through innuendo and rank
22 speculation, the Receiver has presented no evidence establishing that Moving Parties are
23 either unfit to represent the class or have a conflict of interest. On the contrary, the
24 Receiver and his proposed counsel’s clear collection motive raises a very real concern
25 that their interests actually conflict with those of the class.
26 II. THE RECEIVER’S OBJECTIONS TO MESSRS. HEARON AND IBRAHIM
27
SHOULD BE DISREGARDED BECAUSE THE RECEIVER ADVISED
THEM THAT HE DOES NOT SUPPORT NOR OPPOSE THEIR MOTION
28
On April 1 and 2, the Court denied, without prejudice, the competing motions of
1
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1 the Moving Parties and the Receiver on the basis that there was a failure to comply with
2 Local Rule 7-3. [Dkt 606-607.] Moving Parties thus spoke with and corresponded with
3 the Receiver and his counsel regarding the relief sought in this motion. This process was
4 not confined to a single phone call, but several phone calls; during which Moving Parties
5 responded to all inquiries from the Receiver and his counsel. Not all of those
6 communications have been accurately reflected in the Receiver’s filings.
7 At the conclusion of this process on April 15, 2019, the Receiver, through his
8 counsel, stated to Mr. Hearon the following position as it relates to Moving Parties’
9 motion:
10 Mr. Weiss has fully considered your request that he support
11 your and Ahmed’s application to replace Mr. Avenatti as class
counsel. He will neither support nor oppose that application.
12 This decision is based on your and Ahmed’s representations
13 that you have no understanding with Mr. Avenatti (and
implicitly no intention) to support his or any associated entity’s
14 claim for compensation as counsel for the class, outside of the
15 claim of the Eagan Avenatti estate. If that is not correct, you
should so advise the Court.
16
[Hearon Supp. Decl., Ex. A (emphasis added).]
17
Thus, as of April 15, the Receiver neither supported not opposed Moving Parties’
18
motion. Nothing has changed between April 15 and the filing of the Receiver’s
19
opposition on May 3. The Receiver must, therefore, be held to this position. To hold
20
otherwise would render the Local Rule 7-3 process and the Court’s April 1 and 2 orders
21
meaningless.
22
III. ANY CONCERNS ABOUT MR. AVENATTI’S CONTINUING ROLE ARE
23 MOOT BECAUSE HE HAS ALREADY AGREED TO STEP DOWN AS
24 LEAD CLASS COUNSEL
25 The Receiver argues that Mr. Avenatti cannot continue as class counsel due to the
26` criminal allegations made against him. This argument is moot. Mr. Avenatti has already
27 agreed to step down from his role as lead class counsel. [Dkt 609-4 (Avenatti Decl.), ¶2.]
28 If the motion of Messrs. Hearon and Ibrahim is granted, they, alongside experienced
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1 appellate counsel Stuart Esner, will take over the duties on behalf of the class of handling
2 the Ninth Circuit oral argument and any subsequent petitions before the Ninth Circuit or
3 U.S. Supreme Court that may be filed. Moving Parties do not expect to have any
4 continuing need for such consultation and input as the case progresses through the
5 appellate phase.
6 The Receiver insinuates that Moving Parties’ request to be appointed as “interim”
7 class counsel as opposed to permanent class counsel should be viewed with suspicion.
8 The Receiver’s stated concerns are without merit, as it is the appellate process that
9 immediately lies ahead and is of the utmost concern and focus.
10 At present, Mr. Avenatti is the duly appointed class counsel pursuant to this
11 Court’s orders. [Dkt 270 at p. 35; Dkt 452 at 2.] Moving Parties do not control Mr.
12 Avenatti and thus are not in the position to compel him to permanently vacate his role as
13 class counsel. Although Moving Parties believe Mr. Avenatti’s knowledge about this
14 case from the inception of the litigation and his positive contributions as lead trial counsel
15 are unmistakable, the determination of whether Mr. Avenatti will be permitted to
16 continue to serve in a capacity as counsel is for the Court, and not for Moving Parties, the
17 Receiver, Defendants, or Mr. Avenatti to determine. At this time, however, the Court
18 need not make this determination as Mr. Avenatti has agreed in writing to step aside as
19 lead class counsel. [Dkt. 609-4.] The only question ripe for the Court is who is best
20 suited to represent the interests of the class through the appellate process. 1
21 1
To be clear, Moving Parties are not opposed to a permanent appointment as class
22 counsel, but believe that such a decision is best left for a later time when the case returns
to the district court.
23 2
Kayes v. Pacific Lumber, 51 F.3d 1449 (9th Cir. 1995), is inapposite. There, the Court
24 found there was a potential conflict of interest because the plaintiffs’ counsel
25
simultaneously represented a fund and two individual plaintiffs “with respect to
individual annuities not covered by the present suit.” Id. at 1465 (emphasis added). In
26` other words, unlike here, the factual allegations of the two lawsuits were not related.
27
Likewise, Sullivan v. Chase Inv. Servs. of Bos., Inc., is distinguishable because the
28
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1 IV. THE RECEIVER’S SUPPOSED “WARNING” SIGNS ARE RED

HERRINGS
2
The Receiver’s attempts to fabricate “warning” signs supposedly indicating
3
Moving Parties are under Mr. Avenatti’s influence must be rejected. Moving Parties
4
have done nothing improper, and the Receiver’s contentions are completely without
5
merit.
6
First, as discussed above, Moving Parties’ basis for seeking an “interim”
7
appointment at this time is fully justified. It has nothing to do with being a “caretaker”
8
for Mr. Avenatti.
9
Second, there is nothing improper about Mr. Avenatti filing a declaration in
10
support of Moving Parties’ motion. Mr. Avenatti is the duly-appointed class counsel,
11
was lead trial counsel, and has been intimately involved in the case from even before its
12
filing. Because Moving Parties worked on the successful prosecution of this action with
13
Mr. Avenatti and consequently are also very knowledgeable about this case, there is
14
nothing surprising about the fact that Mr. Avenatti would file a declaration in support of
15
the other attorneys who tried the case.
16
Third, there is also nothing improper about Mr. Ibrahim continuing to work on
17
some of the cases he was involved with while he was with Eagan Avenatti. On the
18
contrary, it would be surprising if Ibrahim did not work on any cases he previously
19
worked on while at EA given his built-in knowledge of those cases and the assistance
20
required by the clients under the unique circumstances present.
21
Moreover, to be clear, Mr. Avenatti has not “transferred” any cases to Mr. Ibrahim.
22
Clients, not receivers or Mr. Avenatti, decide who they wish to serve as their counsel.
23
That is what happened here. This is true of both the Medline v. Kimberly-Clark case and
24
Alpha GRP, Inc. v. Subaru of America, Inc. case where the clients elected to retain Mr.
25
Ibrahim. [Ibrahim Supp. Decl., ¶2; see also Dkt 617-1 (Weiss Decl., Ex. 4—reflecting
26`
substitution of counsel signed by client).] In the case of the Herrick v. National Football
27
League case, the putative class representative filed a declaration supporting Mr. Ibrahim’s
28
appointment as co-class counsel, and the matter is being briefed and will be pending
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1 before the district court in Ohio. [Id.; see also Dkt 617-1 (Weiss Decl., Ex. 5).] And
2 finally, the Receiver is factually incorrect with regards to Mr. Ibrahim’s role in the
3 Naeyaert v. Kimberly-Clark case. [Weiss Decl., ¶¶6-7.] He does not represent Mr.
4 Naeyaert. Rather, he requested withdrawal from the case, which the district court
5 approved. [Dkt 617-1 (Weiss Decl., Ex. 2).]
6 Fourth, the Receiver alleges wrongdoing with regards to Mr. Avenatti’s supposed
7 contact with Rashel Campos of Bahamas Surgery Center, the class representative. As an
8 initial matter, to be clear, Mr. Hearon told the Receiver and his counsel that he did not
9 know if Mr. Avenatti had contacted Ms. Campos, but that he would not be surprised if he
10 had done so. But notwithstanding, the Receiver fails to establish anything improper
11 occurred even if there was contact between Mr. Avenatti and Ms. Campos. Mr. Avenatti
12 remains class counsel. Plainly, there is nothing wrong with class counsel contacting the
13 class representative and, indeed, he would be expected to share with the class
14 representative the important development of his decision to step down as lead class
15 counsel.
16 In addition, Ms. Campos made her choice clear as to whom should take over
17 prosecution of the case in the declaration she filed with the Court. Ms. Campos and
18 Bahamas have no obligation to take the Receiver’s phone calls or to meet with the
19 Receiver and his proposed class counsel. In fact, their attempts to interfere with an
20 existing attorney-client relationship should be viewed with disapproval.
21 Fifth, Moving Parties do not “echo” Mr. Avenatti’s position that he was appointed
22 class counsel. They state a fact by citing the Court’s orders. [Dkt 270 at p. 35; Dkt 452
23 at 2.]
24 Finally, the Receiver’s personal attacks by innuendo designed to impugn Moving
25 Parties’ character should be rejected. The Receiver has not evidence of any wrongdoing
26` that would render Moving Parties unfit to serve as class counsel. Mr. Hearon’s personal
27 relationship with Mr. Avenatti is simply irrelevant to the Court’s inquiry, and would be
28 no different than if Moving Parties asked the Court to draw conclusions about Mr. Frank
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1 based on the fact that he was Mr. Avenatti’s partner during a period when many of the
2 alleged events occurred as reflected in the indictment filed by the Receiver. Similarly,
3 Greg Barela’s unproven accusations have no relevance—particularly where the Receiver
4 himself concedes he “is not aware of any evidence that would support the allegations
5 against Ibrahim[.]” [Dkt 617 at 4:26-28.]
6 In sum, the Receiver has not raised any “warning” signs regarding Moving Parties’
7 independence from Mr. Avenatti or their fitness to serve as interim class counsel. Each
8 point raised is a red herring.
9 V. THE MOVING PARTIES DO NOT HAVE ANY CONFLICTS OF
10 INTEREST WITH THE CLASS
11 The Receiver next resorts to far-fetched contentions that Moving Parties cannot
12 serve as class counsel because their interests conflict with those of the class. The
13 Receiver’s contentions are without merit.
14 First, as explained above, Mr. Ibrahim is not representing Christopher Naeyaert in
15 his action against Kimberly-Clark Corporation. The Receiver’s initial argument of a
16 conflict of interest, therefore, falls flat.
17 Second, Mr. Ibrahim’s representation of Medline does not pose a conflict with the
18 interests of the class. “[O]nly client conflicts that are material and presently manifest—
19
rather than merely trivial, speculative, or contingent on the occurrence of a future event—
20 will affect the adequacy of class counsel.” William B. Rubenstein, 1 Newberg on Class
21 Actions § 3:75 (5th ed.). Here, the Receiver’s supposition that Mr. Ibrahim has a
22 contingency interest in the outcome of the Medline matter is once again factually
23 incorrect. [Ibrahim Supp. Decl., ¶3.] Further, far from having a conflict, Mr. Ibrahim’s
24 representation of Medline creates a commonality of interest between him and the class.
25 As noted by a leading class action treatise:
26` In general, class counsel may represent multiple sets of

litigants—whether in the same action or in a related
27 proceeding—so long as the litigants’ interests are not inherently
28 opposed. Indeed, courts have recognized that concurrent
representation may enable counsel to leverage a better
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1 settlement for both sets of plaintiffs due to a defendant’s desire

to obtain a global resolution. Representing multiple clients in
2 parallel proceedings will also benefit the class to the extent that
3 class counsel gain useful legal and factual knowledge in
pursuing the concurrent action.
4
William B. Rubenstein, 1 Newberg on Class Actions § 3:75 (5th ed.) (emphasis added);
5
see also Sandoval v. Ali, 34 F. Supp. 3d 1031, 1046 (N.D. Cal. 2014) (notwithstanding
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principle of appearance of divided loyalties, “class counsel will not necessarily be
7
disqualified merely for representing another class against the same defendants when, for
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instance, the purported conflicts are illusory and speculative, the class has co-counsel
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untainted by the conflict, and there were procedural safeguards protecting the class’s
10
interests, such as requiring disclosure of the potential conflict to class members and
11
requiring court approval for settlements.”); Allen v. Hyland's Inc., 300 F.R.D. 643, 665
12
(C.D. Cal. 2014) (finding that “potential conflict of interest [arising from parallel
13
representation] was ‘very speculative’ where a conflict would require the following
14
confluence of circumstances: (1) the parallel case to be certified as a class action, (2) the
15
plaintiffs in both cases to obtain favorable judgments, and (3) the defendants to be unable
16
to satisfy the judgments.”) (Gee, J.).
17
Here, both cases are against the same Defendants, involve the same non-compliant
18
MicroCool Gowns, and involve the same allegations that Defendants misrepresented and
19
concealed material facts. The interests of Mr. Ibrahim and the class could thus not be
20
more aligned. Further, Mr. Ibrahim has co-counsel in both cases. Therefore, if appointed
21
interim class counsel, Moving Parties would be fully committed to the cause of
22
demonstrating that Kimberly-Clark and Halyard misled customers. 2
23
24 2
Kayes v. Pacific Lumber, 51 F.3d 1449 (9th Cir. 1995), is inapposite. There, the Court
found there was a potential conflict of interest because the plaintiffs’ counsel
25
simultaneously represented a fund and two individual plaintiffs “with respect to
26` individual annuities not covered by the present suit.” Id. at 1465 (emphasis added). In
27
other words, unlike here, the factual allegations of the two lawsuits were not related.
Likewise, Sullivan v. Chase Inv. Servs. of Bos., Inc., is distinguishable because the
28 potential conflict in that case was the risk that payment by the defendant in one case
Continued on the next page
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1 While all of this discussion is of academic interest, one must question its relevance
2 in the case at bar where a judgment has already been obtained, and is on appeal, and the
3 judgment amount has been fully bonded. [Dkt. 584-585.]
4 Finally, it is Receiver’s proposed counsel, not the Moving Parties, who have a
5 glaring conflict of interest with the class. By virtue of its status as a judgment creditor of
6 Eagan Avenatti, Jason Frank Law, PLC is plainly motivated to obtain a settlement as fast
7 as possible in order to satisfy all or even a portion of the asserted $10 million debt,
8 irrespective of whether an expeditious settlement would be in the interests of the class.
9 Indeed, the Receiver’s statement that has an “understanding . . . that Defendants are
10 amenable to serious settlement discussions” raises serious concerns about whether the
11 Receiver and its proposed counsel are already undermining the interests of the class by
12 engaging in settlement negotiations before they have even been appointed class counsel.
13 VI. THE RECEIVER’S ARGUMENT THAT MOVING PARTIES ARE
14 OPPOSED TO THE CONCEPT OF SETTLEMENT NEGOTIATIONS IS
WITHOUT MERIT
15
As noted in Plaintiff’s Opposition to Defendants’ Motion for a New Trial, “[s]ince
16
the verdict, Plaintiffs have repeatedly attempted to resume settlement discussions with the
17
Defendants in accordance with the Court’s strong suggestion made on the record
18
immediately following the verdict that the parties should attempt to resolve the matter.
19
Defendants have refused to have any such negotiations.” [Dkt 542 at 3 n. 3.] The
20
Receiver’s insinuation, therefore, that Plaintiff and its counsel are to blame for the
21
absence of settlement negotiations is simply inaccurate.
22
Further, the Receiver’s contention that Moving Parties told his counsel that there
23
have been no settlement negotiations is also inaccurate. In an e-mail to the Receiver’s
24
counsel, Mr. Hearon stated that “I understand there were one or more mediations in the
25
case before I made an appearance. Neither I nor Ahmed were present for any mediation,
26`
Continued from the previous page
27
would diminish the amount available to the same defendant to satisfy a recovery in the
28 second case. 79 F.R.D. 246, 258 (N.D. Cal. 1978). That concern is not implicated here.
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1 and we have no knowledge of whether or not there were any substantive offers or
2 demands.” [Hearon Supp. Decl., Ex. A.] Mr. Hearon also stated that “Judge Gee advised
3 the parties at the end of trial that she thought it would be a good idea for the parties to
4 explore settlement (or words to that effect). I recall that we noted in post-trial filings that
5 we had reached out to the defendants about having settlement discussions, but to our
6 knowledge, they never responded.” [Id.] In addition, Mr. Hearon advised the Receiver’s
7 counsel that they participated in a conference call with a Ninth Circuit mediator, but that
8 no demands or offers were conveyed during the call. [Id.]
9 But more importantly, the Receiver erroneously implies that Moving Parties are
10 altogether opposed to the concept of negotiating a settlement. This is completely false.
11 Moving Parties do not oppose the idea of a settlement. Indeed, Mr. Hearon is himself an
12 experienced mediator and is thus more than capable of, and willing to, negotiating a
13 settlement for the class should an offer ever be made. Here, the issue is not the
14 willingness or capability of negotiating a settlement; it is instead the absence of
15 settlement offer, post-trial, that is fair to the class and takes into account the egregious
16 wrongdoing of Defendants, as reflected by the judgment entered.
17 Receiver’s arguments pushing for settlement discussions make apparent that he
18 does not have the interests of the class at heart. He is instead driven exclusively by a
19 collection motive—i.e., to obtain a cheap and quick settlement to pay his fees and those
20 of his counsel, and to ensure the largest creditor of Eagan Avenatti is paid. As noted
21 above, the Receiver’s statement that it is his understanding that Defendants are amenable
22 to a settlement is highly concerning because it suggests that the Receiver is already
23 undermining the interests of the class by collaborating with Defendants when neither the
24 Receiver nor his chosen counsel have authority to represent or to speak for the class.
25 VII. THE RECEIVER’S PROPOSED COUNSEL IS NOT A BETTER
26` ALTERNATIVE TO MOVING PARTIES BECAUSE MOVING PARTIES
HAVE THE MOST INTIMATE KNOWLEDGE AND EXPERIENCE
27 CONCERNING THE RELEVANT ISSUES ON APPEAL
28 As previously argued in their motion and their opposition to the Receiver’s motion
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1 to appoint Frank, Sims & Stolper LLP as class counsel, Moving Parties are best suited to
2 represent the interests of the class by taking over the prosecution of this case through the
3 appellate process. [See Dkt 609 at pp. 1-3; Dkt 619 at pp. 4-5.] Moving Parties have a
4 more intimate knowledge of the case. The work performed by Frank, Sims & Stolper on
5 this action was relatively minimal and was not relevant to the issues on appeal. Moving
6 Parties will not repeat those arguments here.
7 VIII. THE ADVISORY BRIEF OF DEFENDANTS SHOULD BE IGNORED
8 Defendants Kimberly-Clark and Halyard also filed a brief indicated they have no
9 position on who should be appointed as replacement counsel, but nevertheless offering
10 unsolicited commentary. The Court need not consider the points made by Defendants.
11 First, Defendants plainly have no standing to recommend to the Court who should
12 be appointed as class counsel in the litigation. Allowing the defendants in a class action
13 to dictate who should be appointed as their opposing counsel in the litigation and what
14 factors the Court should apply in making the appointment would set a very dangerous
15 precedent.
16 Second, Defendants’ primary concern is to ensure Mr. Avenatti is removed as class
17 counsel. For the same reasons stated above in section III, supra, any such concern is
18 moot.
19 Third and most importantly, Defendants’ contentions should be disregarded
20 because Defendants take no position on the outcome of the competing motions before the
21 Court. As with the Receiver, Moving Parties met and conferred with counsel for
22 Defendants. As a result of the meet and confer correspondence, defense counsel sent an
23 e-mail to Moving Parties stating that “Kimberly-Clark Corp. has no objection to the
24 removal of Mr. Avenatti as appointed counsel for the class. Kimberly-Clark takes no
25 position at this time on who should be appointed as replacement class counsel.” [Hearon
26` Supp. Decl., Ex. B (emphasis added).] According to counsel for Avanos Medical (the
27 new name for Defendant Halyard): “Avanos takes the same position as Kimberly-Clark
28 with respect to your contemplated motions.” [Hearon Supp. Decl., Ex. B.]
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1 Therefore, there is no need for the Court to entertain any of the considerations
2 suggested by Defendants. The Court is capable of determining what factors and
3 considerations are appropriate in deciding who should take over duties as class counsel in
4 this case. 3
5 Finally, Moving Parties contend the Court has jurisdiction to decide the question of
6 who should be appointed class counsel even thought the case is up on appeal under the
7 authority previously cited for the Court. However, if Court does not have jurisdiction,
8 then it should issue an indicative ruling under Rule 62.1 of the Federal Rules of Civil
9 Procedure.
10 IX. CONCLUSION
11 For the reasons stated above, attorneys William Hearon and Ahmed Ibrahim
12 respectfully request that the Court GRANT their motion to be appointed as interim class
13 counsel, and DENY the Receiver’s motion to appoint Jason Frank, Scott Sims, and
14 Andrew Stolper of Frank, Sims & Stolper, LLP as class counsel.
15
Dated: May 10, 2019 WILLIAM C. HEARON, P.A.
16
17 By: /s/ William C. Hearon
William C. Hearon
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Defendants have also suggested certain discovery take place relating to the inquiry on
22 who should be appointed class counsel. Moving Parties oppose any such discovery as
being unnecessary for the Court to rule on the pending motions. Moving Parties have
23
already answered all questions during the meet and confer process to the best of their
24 ability posed by the Receiver and Defendants’ counsel, including information about
Moving Parties’ proposed fees. However, if the Court is inclined to order any discovery,
25
one of the principal topics for discovery would have to include the relationship and
26` communications between the Receiver and/or the Frank Sims & Stolper firm on the one
27
hand, and Defendants’ counsel on the other hand, from 2017 to the present, to assess
whether the Receiver or Frank, Sims & Stolper have any disqualifying conflicts of
28 interest.
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1
AI LAW
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3 By: /s/ Ahmed Ibrahim
Ahmed Ibrahim
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Attorneys for Plaintiff, Individually and
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On Behalf of All Others Similarly Situated
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Case 2:14-cv-08390-DMG-PLA Document 625 Filed 05/13/19 Page 1 of 3 Page ID #:44138
Michael J. Avenatti, Esq. (Bar No. 206929)

1 10000 Santa Monica Blvd., 21st Floor
Los Angeles, CA 90067
2 Tel: (949) 887-4118
m@thefight.us
3
Attorney for Bahamas Surgery Center, LLC;
4 Michael Avenatti and Avenatti & Associates, APC
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 BAHAMAS SURGERY CENTER, LLC,
CASE NO.: 14-CV-08390 DMG (PLA)
12 Plaintiff,
vs. LEAD CLASS COUNSEL
13
MICHAEL AVENATTI’S SUR-
KIMBERLY-CLARK CORPORATION,
14 a Delaware Corporation, and HALYARD REPLY IN FURTHER
HEALTH, INC., a Delaware OPPOSITION TO RECEIVER’S
15 Corporation,
MOTION FOR “INDICATIVE
16 RULING” (1) REMOVING EAGAN
Defendants. AVENATTI LLP AND MICHAEL
17
AVENATTI AS CLASS COUNSEL
18 AND (2) APPOINTING JASON M.
FRANK, SCOTT H. SIMS AND
19
ANDREW D. STOLPER OF
20 FRANK, SIMS & STOLPER, LLP
AS LEAD CLASS COUNSEL [DKT
21
610]
22
23 Hearing:
Date: May 24, 2019
24 Time: 9:30 a.m.
25 Place: Courtroom 8C
350 West 1st Street
26 Los Angeles, CA 90012
27
28
LEAD CLASS COUNSEL MICHAEL AVENATTI’S SUR-REPLY IN FURTHER OPPOSITION TO
RECEIVER’S MOTION FOR “INDICATIVE RULING” [DKT 610]
1 In light of new issues and arguments first raised by the Receiver in his Reply [Dkt.
2 622], Lead Class Counsel Michael Avenatti (“Avenatti”) respectfully submits this Sur-
3 Reply for consideration by the Court.
4
5 First, there is no evidentiary support for nearly all of the alleged factual assertions
6 made in the Reply. As this Court well knows, attorney argument is not evidence.
7 Accordingly, this Court should disregard those assertions when ruling on the motion. This
8 includes but is not limited to any claim that Avenatti has violated any court order relating
9 to the Receiver. Any such claim is baseless.
10
11 Second and critically, neither the Receiver nor Frank, Sims and Stolper refute the
12 allegations made by Avenatti in his Opposition relating to Franks, Sims and Stolper
13 previously assisting the Defendants in this matter and attempting to decertify the class and
14 derail the proceedings. The reason is clear – because those allegations are entirely accurate.
15 As a result, it is impossible for Frank, Sims and Stolper to now be appointed to represent
16 the class – the same class they worked against and attempted to harm.
17
18 Third, Eagan Avenatti, LLP is not “counsel of record” nor are they class counsel.
19 Law firms do not serve as counsel of record in proceedings before this Court. Specific
20 attorneys do. This is why the Court requires admission to practice before the Court by
21 attorneys, as opposed to law firms. Indeed, this Court’s local rules relating to admission
22 and withdrawal of counsel on a particular matter are clear – in each case, specific attorneys
23 represent clients. EA was never appointed class counsel in this matter, EA does not
24 represent any class member, the Receiver is not a lawyer, and no party to this case has
25 requested the Receiver file his motion. Thus, EA and the Receiver have no standing
26 regardless of whether EA’s name at one point appeared in a caption.
27
28
1
1 Fourth, the claim that Avenatti has done nothing to settle this case in nearly four
2 years is absolutely false and demonstrates that the Receiver and Frank, Sims and Stolper
3 have no boundaries as to what they will say or do to accomplish their goal.1 Prior to trial,
4 Avenatti engaged in (i) multiple days of mediation with the Defendants before the Hon.
5 Louis Meisinger2 (retired) and (2) well over 30 phone calls and emails with the mediator,
6 all in an effort to resolve this matter. This conduct occurred across a time period of almost
7 18 months. In fact, at one point late in the process, Judge Meisinger made an unsuccessful
8 mediator’s proposal to the parties. Following trial, Avenatti again attempted to resolve the
9 case through Defendants’ counsel, as well as through Judge Meisinger. Indeed, Avenatti
10 informed this Court of these efforts post-trial in various pleadings filed long ago. As a
11 result, the claim by the Receiver and his counsel should be seen for what it is – a complete
12 fabrication designed to deceive the Court.
13
Dated: May 13, 2019
14
15
By: /s/ Michael J. Avenatti
16 Michael J. Avenatti
17
18
19
20
21
22
23 1
As reflected in the Declaration of Mr. Hearon previously filed, and contrary to the false
24 statements by the Receiver and his counsel, at no time did Mr. Hearon tell the Receiver or
his counsel that there had not been any settlement efforts in nearly four years. More
25 importantly, neither the Receiver nor his counsel have ever made a single inquiry of
26` Avenatti relating to prior settlement efforts or discussions in this case.
2
If the Court has any questions as to Avenatti’s settlement efforts and the blatant
27
misrepresentation by the Receiver and his counsel, the Court is urged to contact Judge
28 Meisinger directly at 213-622-1002 or judgemeisinger@signatureresolution.com.
-2-

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Case 2:14-cv-08390-DMG-PLA Document 624 Filed 05/10/19 Page 1 of 15 Page ID

1 WILLIAM C. HEARON, P.A.

REPLY IN SUPPORT OF MOTION TO APPOINT INTERIM CLASS COUNSEL

19 VIII. THE ADVISORY BRIEF OF DEFENDANTS SHOULD BE

1 IV. THE RECEIVER’S SUPPOSED “WARNING” SIGNS ARE RED

13 Receiver’s contentions are without merit.

14 First, as explained above, Mr. Ibrahim is not representing Christopher Naeyaert in

15 his action against Kimberly-Clark Corporation. The Receiver’s initial argument of a

16 conflict of interest, therefore, falls flat.

25 As noted by a leading class action treatise:

26` In general, class counsel may represent multiple sets of

1 settlement for both sets of plaintiffs due to a defendant’s desire

Michael J. Avenatti, Esq. (Bar No. 206929)

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