Originally appeared in Law360 on July 28, 2015.
Welcome to the latest edition of “And Now a Word from the Panel,” Multidistrict a column which “rides the circuit” with the Judicial Panel on Litigation as it meets on a bimonthly basis at venues around the country. This month the panel heads to San Francisco, California, for its July hearing session, the second panel hearing this year in California.
Looking Back: An MDL Connoisseur? As we celebrate the 46th anniversary of mankind’s first walk on the moon, this month’s column appropriately explores the impact of the “rocket docket” on the selection of an MDL venue. In several prior columns, we have examined various MDL venue selection factors. But is the perceived speed with which a proposed MDL transferee district handles cases a relevant factor? Before reaching that issue, we look again at the latest MDL scorecard for 2015. At the May session in Minneapolis, the panel grante10 out of the 14 MDL motions before it, boosting its 2015 record of granting MDL motions to slightly above .500 (granting 18 out of 35 motions). In addition, before speeding off to the world of rocket dockets, we examine yet another denial of an MDL petition.
At its May session, the panel considered whether to create an MDL proceeding for two actions (and another two related actions) arising from the marketing of wines, allegedly containing inorganic arsenic, by 28 producers and distributors. In re California Wine Inorganic Arsenic Levels Products Liability Litigation (MDL No. 2632).
Not surprisingly, and based on a number of factors with which readers of this column are likely familiar, the panel denied this motion. Specifically, the panel considered the following:
Minimal Number of Actions. With only two actions subject to the motion (and even with an additional two related actions), the minimal number of actions imposed “a heavier burden” on the party seeking MDL centralization “to demonstrate that centralization is appropriate.” The panel reiterated that “the mere possibility of additional actions does not convince us that centralization is warranted.”
Limited Number of Counsel. Counsel seeking MDL centralization was counsel of record or coordinating counsel in all of the actions. The panel further observed that the limited number of plaintiffs’ counsel “already are working together” and “informal cooperation among counsel and coordination among the involved courts are ... preferable to formal centralization.”
Procedural Posture of Cases. The panel observed that “[a]ll actions are in their infancy, which will further facilitate informal coordination.” Interestingly, this early stage procedural posture is sometimes used as a basis to create an MDL proceeding; it is when cases are at different or more advanced stages, that their procedural posture militates against creation of an MDL.
In denying this MDL motion, the panel referenced an additional and interesting argument against creation of an MDL. As mentioned, there were two actions subject to the original MDL motion, with two additional related actions. The parties argued against creating an MDL “based on circumstances allegedly indicating that movant’s counsel caused the filing of the related actions before the panel for the sole purpose of bolstering his motion.” The panel cited prior precedent finding that “where a Section 1407 motion appears intended to further the interests of particular counsel more than those of the statute, we would certainly find less favor with it.” Nevertheless, the panel resisted “delv[ing] into movant’s motives, as [the Panel] denied the motion on other grounds.” This suggests that the panel might be open to arguments that a party has attempted to “manufacture” an MDL by timing the filing of additional cases.
Looking Back (Again): The Rocket Docket MDL?
At the May session, the panel also considered an MDL motion involving 10 actions, and 113 additional related actions, arising from the sale and marketing of laminate flooring. In reLumber Liquidators Chinese-Manufactured Flooring Products Marketing, Sales Practices and Products Liability Litigation (MDL No. 2627). Although the grant of the motion was not surprising, the panel’s discussion of the choice of MDL venue is instructive. The panel ultimately selected the Eastern District of Virginia, where the defendant was based, over the objections of certain parties who “suggested that this MDL was not suited to the speed of the district’s ‘Rocket Docket.’” The panel rejected this argument because plaintiffs were unable to “articulate precisely how proceeding at an expeditious pace would prejudice the parties.” Certain parties had argued that the district is “known for its efficiency. In fact, last year, for the seventh year in a row, the Eastern District of Virginia had the fastest trial docket in the country.”
Although no actions subject to the motion were pending in the judicial district, the panel found the district to be an appropriate MDL venue because:
Location of Defendant. Defendant was headquartered in the district and witnesses and documents would be located there.
Few MDLs in District. The district is one “to which [the Panel has] transferred relatively few MDLs.” In fact, there were no other existing MDLs in the district.
Related Case in District. A securities action against Lumber Liquidators (filed in 2013) was pending in the district, an action which included allegations concerning formaldehyde emissions from laminate flooring.
This is not the first time that the panel has considered the issue of “rocket dockets” and the same federal judicial district as an MDL venue. A decade ago, the United States unsuccessfully argued that an MDL arising from the treatment of individuals in detention centers located in Iraq and Afghanistan should be venued in the Eastern District of Virginia. In opposition to the government’s arguments in favor of selecting that “rocket docket” district, some plaintiffs argued that an MDL “is not a race to the finish line. ... [T]he key is access to the discovery that is essential to trial preparation.” The panel ultimately granted that MDL motion, but selected the nation’s capital, the District of Columbia, as the venue, providing a “particularly appropriate forum for lawsuits brought against the Secretary of Defense and three senior military officers for conduct that allegedly transpired in connection with their work for the United States.”
The lesson for practitioners is that the panel will consider a multitude of factors in selecting an MDL venue, but a district’s reputation for the expeditious handling of cases is not a per sebasis to reject that district as an MDL destination. The Lumber Liquidators decision also reminds us that the presence of an action in the selected MDL district is not required.
What will the hearing in the “City by the Bay” bring? What interesting issues will face the panel next? What factors will the panel consider in selecting the venue for future MDL proceedings? Stay tuned for our next edition of “And Now a Word from the Panel,” as the panel heads back East to this writer’s hometown, the “Big Apple” (New York, New York), for another somewhat rare October (rather than September) session.