What is Multidistrict Litigation (MDL)? How Does It Impact on Your Company? These are two excellent timely and critical questions. First, what is an MDL? This acronym refers to Multidistrict Litigation or the process by which multiple federal lawsuits pending in different federal courts are consolidated in a single federal court for pretrial purposes. Whether cases are consolidated is decided by the Judicial Panel on Multidistrict Litigation (JPML), comprising seven sitting federal district court and appellate court judges who are appointed by the Chief Justice of the US Supreme Court. Second, how does this impact on your company? It is important to keep in mind that MDLs are not limited to a particular industry. The MDL mechanism can impact on a wide swath of industries and types of cases. There are currently nearly 300 separate MDL proceedings pending in federal courts around the country and the subject matter of those proceedings ranges from air disasters, antitrust, automobile defects, oil spills, contract disputes, employment, sales practices, consumer fraud, product liability, pharmaceuticals, intellectual property, sports and securities fraud. MDLs are a valuable tool that companies can use to efficiently handle multiple filings in diverse jurisdictions, but at the same time such proceedings can trigger a multiplicity of new filings. As coordinating attorney for Kaye Scholer’s nationally recognized Product Liability Group, I authored the articles in this publication, and many were originally published in Law360 as part of my “And Now A Word from the Panel...” bimonthly column. They address the ABCs of the MDL process, the factors that the JPML considers in deciding whether to create an MDL and in which federal court an MDL proceeding will be venued. I invite you to explore this important tool in case management and welcome the opportunity to help you navigate the process, to demystify what might otherwise appear to be the mysteries of MDLs.
What Is Multidistrict
Litigation and the JPML?
Q. What is multidistrict litigation and the JPML?
A. Multidistrict litigation involves at least two federal lawsuits pending in different federal judicial districts. In 1968, Congress enacted the Multidistrict Litigation (MDL) statute (28 U.S.C. § 1407) in an attempt to alleviate the burden that multiple actions pending in courts around the country involving the same issue were placing on the
federal judiciary—and primarily in response to a price fixing scheme that had spawned numerous civil and criminal actions. With the enactment of the MDL statute, Congress also created the Judicial Panel on Multidistrict Litigation
(JPML), a body empowered to determine whether multiple actions involving one or more common questions of fact are consolidated in a centralized MDL proceeding and where that MDL proceeding will take place.
Importantly, MDL transfer is for pretrial coordination. As a general matter, under Supreme Court precedent, the MDL court cannot try cases sent to it from other judicial districts and (with the help of the JPML) must send the cases back to their original jurisdictions for trial.
Q. Why would a company/counsel want to consolidate?
A. At a certain point in the life of litigation arising from a single product or issue, there are quite simply “too many holes in the dike to plug.” From a cost and overall case management perspective, there can be a point where there are just too many cases to fight in too many different courts. Besides the need to monitor each individual case and (often) hire separate local counsel for each case, allowing separate cases to proceed in different jurisdictions places the company at risk of inconsistent rulings or, sometimes more troubling, inconsistent discovery orders in these multiple cases.
Q. Why might they NOT want to consolidate?
A. Creation of an MDL proceeding will often open the floodgates for counsel to file lawsuits, on the theory that they can piggy-back on the work of others in the MDL, while their individual cases may lay dormant for years. This can expose companies to more lawsuits and greater ultimate costs. Also, because the JPML also decides where the MDL proceeding will be located—and determining
The JPML meets every two months (generally on the last Thursday of the month) at various locations around the country, to hear arguments on motions to create MDL proceedings.
Decisions are generally issued within a few weeks of the hearing session.
where the JPML will likely create the proceeding is one of the most difficult decisions to predict (indeed, the JPML can decide to establish the MDL in a jurisdiction not suggested by
any of the parties or even where no current actions are pending)—there is a measure of uncertainty when one goes down the path of moving for an MDL proceeding and determining which judge will be selected or which
At a certain point in the life of litigation arising from a single product or issue, there are quite
simply “too many holes in the dike to plug.”
of effort. There are also some creative uses of the forum non conveniens transfer statute (28 U.S.C. § 1404) that can effectively transfer multiple actions to a single federal district court without use of the MDL system.
Q. Are there any types of cases that cannot be subject to an MDL proceeding?
circuit law will apply.
Q. Who makes the decisions/who is on this panel and how do they get selected?
A. The decision whether to create coordinated MDL pretrial proceeding is made by a Panel of seven judges, appointed by the Chief Justice of the U.S. Supreme Court. The seven judges are selected from among federal district court and federal appellate court judges, but no two judges on the JPML may be from within the same federal judicial Circuit. The JPML meets every two months (generally on the last Thursday of the month) at various locations around the country, to hear arguments on motions to create MDL proceedings. Decisions are generally issued within a few weeks of the hearing session.
Q. If you don’t get consolidated, do you have any recourse?
A. Not really, in terms of creating an MDL proceeding. Appeals from decisions of the JPML denying transfer are effectively barred by the MDL statute, which provides that “[t]here shall be no appeal or review of an order of the panel denying a motion to transfer for consolidated or coordinated proceedings.” But there are other ways to obtain the benefits of coordination without a formal MDL proceeding. As the JPML itself often acknowledges
when it denies a motion to create centralized proceedings, there are other informal methods courts and parties can employ to obtain the efficiencies of coordinated efforts, including informal coordination by federal judges to avoid the duplication of discovery. Parties can seek stays from the local district court judges to allow certain actions to proceed while others remain dormant to avoid duplication
A. Under the Class Action Fairness Act of 2005 (CAFA), cases (non-class actions) filed by 100 or more individual plaintiffs whose claims are proposed to be tried jointly in which there is minimal diversity and collectively seeking more than $5 million (known as a “mass action”) are subject to federal jurisdiction. But, in what appears to have been some form of legislative compromise in return for this expansion of federal jurisdiction, the cases removed from state court to federal court cannot be transferred to an MDL proceeding, “unless a majority of the plaintiffs in the action request transfer.”
Q. What is one of the biggest problems that MDL proceedings cannot solve?
A. Under our system of federalism (and the MDL statute), the JPML is powerless to coordinate state courts cases with federal cases arising from the same product or issue. It is not uncommon for parties to try to take an “end-run” around the federal MDL proceeding in an effort to obtain discovery and rulings that are broader than, or at odds with, that of the MDL proceeding. But the good news
is that we are seeing more MDL and state courts that are informally coordinating, and some have even held joint federal-state court hearings or issued joint rulings
applicable to both federal and state cases. Over the past few years, even the JPML has considered the existence of state court proceedings as a reason to create an MDL proceeding and/or where to locate an MDL, with the
suggestion that efforts can be made to coordinate both the federal and state court proceedings.
The ABCs of JPML Practice
Originally published as the 11th installment of “And Now a Word from the Panel ...,” a bimonthly column which “rides the circuit” with the Judicial Panel on Multidistrict Litigation as it meets at venues around the country.
This column will take a step back and provide its readers with a review of some fundamental panel practice pointers, which, as detailed below, we’ll refer to as the “ABCs of
JPML Practice.” But before providing further gloss on that acrostic, we cannot resist mentioning a somewhat intriguing MDL petition being heard at the October panel hearing. The petition involves local rules governing
attorney admission and several lawsuits naming members of the federal judiciary—including a member of the panel (who is also a district court judge in DC)!
A Multidistrict Litigation About Multijurisdictional Practice?
Perhaps appropriately for a “multidistrict” panel, an
MDL petition has made its way to the panel’s docket regarding the ability of attorneys in one jurisdiction to become admitted to practice in a federal district court within another jurisdiction, i.e., multijurisdictional practice (MJP). In re National Association for the Advancement of Multijurisdiction Practice Litigation (MDL No. 2568). The petition involves a total of three lawsuits filed in the District of Columbia, Maryland and New Jersey regarding those
district courts’ local rules for the admission of attorneys. Although there are variations in the admission rules at issue, the crux of the lawsuits is the inability of lawyers admitted in certain states to automatically gain admission in federal courts in other states, or what the plaintiffs refer to as the “Local Rule Balkanization.”
This panel petition raises several issues of import to panel motion practice —putting aside these cases’ impact on practitioners’ ability to become admitted to practice in other districts. Specifically:
- Is MDL centralization appropriate when relatively little factual discovery, if any, needs to be taken? These cases primarily address the local rules and potential constitutional arguments. If creation of an MDL necessitates the existence of “one or more common questions of fact” (28 U.S.C. § 1407 (a)), why are these cases ripe for centralization?
- Does the naming of all federal district judges in the districts in which the cases were filed preclude MDL centralization because judges in those districts would need to recuse themselves? As readers of
this column are aware, there is no prerequisite that either the selected MDL judge or the selected MDL transferee district have one of the pending subject cases. Curiously, the petitioner’s opening brief did not even suggest a particular MDL transferee district court. But in reply, the petitioners suggest using a relatively obscure statutory provision of the MDL
statute, authorizing the chief justice of the United States Supreme Court to select the MDL judge. 28 U.S.C.
- In addition, the MDL petition raises the recurring panel question of whether there is a critical mass of cases needed to justify creation of an MDL proceeding.
Although the MDL statute requires a minimum of two cases pending in different judicial districts, does the existence of three cases (all in districts along the Eastern Seaboard) warrant an MDL?
This petition again illustrates that although potential MDLs may cut across a variety of legal issues and subject areas, rules of general application for panel practice will often be gleaned from somewhat unusual petitions for creation of an MDL.
And Now a Word About the ABCs of JPML Practice! Having discussed a bit of alphabet soup with the interplay between MDL and MJP, and with the new school year upon us, it seems ripe to go back to the basics of the “ABCs of JPML Practice.” To be more precise, this column will explore three key areas of panel motion practice. Those ABCs, in chronological order but in reverse alphabetical order, are:
C is for Calendar
One of the most commonly asked questions regarding panel practice is: “When will the panel hear my motion?” The questioner is usually aware that the panel meets every other month. To confirm the precise date of the next hearing, your best bet (in the words of Yogi Berra) is “you could look it up.” The panel website provides a calendar of upcoming hearing dates and locations. If you are not near a computer, or would prefer not to “look it up,” the general
rule is that the panel meets on the last Thursday of the “odd” months (January, March, May, July, September and November). As we have noted in the past, this rule has its exceptions for holidays, snowstorms and possibly even Pro Bowl games.
The next question that is often asked is: “By when do I need to file an MDL motion to be heard at the next panel hearing?” A failure to watch the calendar could result in a time lag of as long as four months from the time an MDL motion is filed until the motion is heard. With more careful planning, the time lag may be as little as two months.
Generally, the panel sets its docket approximately six weeks (and perhaps as little as five weeks) prior to the next panel hearing. If history is a guide, an MDL motion will likely
need to be filed at least eight weeks prior to the next panel hearing to be heard at that session. A chart reflecting the last several panel hearing dates, when the session’s docket was released and the filing date of the last MDL motion to be heard at that panel session, is set forth below:
As a cautionary word, these are merely signposts and dockets could vary. Nevertheless, this emphasizes the import of watching the calendar in planning your trip to a possible MDL proceeding.
Panel Hearing Date
March 27, 2014
Hearing Docket Release Date
Feb. 21, 2014
Filing Date of Last MDL Motion on Docket
Feb. 3, 2014
May 29, 2014
April 14, 2014
March 28, 2014
July 31, 2014
June 16, 2014
June 2, 2014
Oct. 2, 2014
Aug. 19, 2014
Aug. 7, 2014
B is for Briefing
Once you have checked the calendar, your next step is to
brief your MDL motion. You may be briefing your initial application to create an MDL, your motion to vacate
a conditional transfer order (CTO), which identifies additional “tag along” cases for transfer to an existing MDL proceeding, or your motion to vacate a conditional remand order (CRO), which identifies cases for remand out of the MDL proceeding back to a transferor court. Practitioners should remember that in briefing an initial motion to create an MDL or in opposing such a motion, you can brief not only the substantive arguments regarding transfer but also
the choice of the MDL court and/or judge.
Once a motion is filed, parties generally have 21 days to file an opposition and replies are due seven days after the opposition. Mindful
of the panel’s hearing calendar, the panel may limit the length of time for an extension of these deadlines
and might even expedite the briefing schedule on a motion to vacate a CTO or CRO to ensure that the motion can be heard at the next immediate panel hearing.
A is for Argument
Practitioners should remember that in briefing an initial motion to create an MDL or in opposing such a motion, you
can brief not only the substantive arguments regarding transfer but also the choice of the MDL court and/or judge.
any developments in the cases subsequent to the completion of briefing.5 You can expect panel members to quickly focus on the key issues in their questioning, which may relate to why an MDL should be created or to the choice of venue. Although the panel generally hears argument by panel docket number (the lower the number, the earlier you will be heard), arguments may be called out of order.6 Arguments are usually limited to motions to create an MDL proceeding; the panel now rarely hears oral argument on motions to vacate a CTO or CRO.
As you prepare for the panel hearing, don’t forget to file
your “Notice of Presentation or Waiver of Oral Argument” form by the deadline, usually a few weeks before the panel hearing and which you can find on the panel docket for your case. The form informs the panel who will be arguing for a particular party, or whether the party wishes to waive oral argument. When you complete the form, you will also need to indicate whether your client supports or opposes creation of an MDL and your proposed MDL transferee court.
Finally, the big day arrives for your panel argument. The panel rules encourage parties with similar positions to confer in advance of a panel hearing and consider whether to appoint a single spokesperson for a particular position.2 Also, expect to check in early that day in the courthouse. For example, at the July panel hearing, counsel were advised
to arrive at 7:45 am (local time) to note their appearance and be assigned their allotted oral argument time.3 But don’t expect much time for your argument. The allotted time may often be only several minutes, with a maximum of 20 minutes for the matter, “[b]arring exceptional circumstances.”4 Be efficient in your presentation, without simply rehashing your briefs, and update the panel on
Once you complete your argument, the waiting begins for
the “D,” the panel’s decision. Fortunately, you will not need to wait long, as the panel generally issues its decisions within one to three weeks after the hearing. The decision will be available via the panel’s ECF system and on the panel’s website, which completes our “ABCs” (and “D”) of panel practice.
Will the panel create an MDL about MJP? Does it matter that district court judges, including a member of the panel, are defendants in the subject actions? What creative arguments will the panel face next? Stay tuned for our next edition of “And Now a Word from the Panel ...,” as the panel will “Do the Charleston”—Charleston, South Carolina, that is (and hopefully in mild weather)—at its post-Thanksgiving Dec. 4 session.
- “[U]pon request of the panel, a circuit judge or a district judge may be designated and assigned temporarily for service in the transferee district by the Chief Justice of the United States.”
- JPML Rule 11.1(e).
- http://www.jpml.uscourts.gov/sites/jpml/files/JPML-Oral_Argument_Guidelines July_2014_Hearing_ Session.pdf.
- JPML Rule 11.1(f).
- JPML Rule 11.1(e).
- http://www.jpml.uscourts.gov/sites/jpml/files/JPML-Oral_Argument_Guidelines-July_2014_Hearing_ Session.pdf.
Top 10 Venue Arguments
Originally published as the tenth installment of “And Now a Word from the Panel...,” a bimonthly column which “rides the circuit” with the Judicial Panel on Multidistrict Litigation as it meets at venues around the country.
As the panel heads to the “Heart of America” (Kansas City, Kansas) for its July 31 hearing, this column will take a bit of a detour from its regular format and present its “Top 10” list of arguments (some strange, yet true) made in support of a particular MDL venue. Some have worked and some have not. This column will provide practitioners with guidance as to the types of arguments that are more likely than others to carry the day. But before that countdown and on the heels of America’s birthday, let’s take a look back at the panel’s consideration of a group of cases involving Uncle Sam.
Looking Back: Uncle Sam and MDLs
Following its May hearing in the Windy City, the panel granted a motion for MDL centralization of four actions (with two potential tag-along actions) arising from an alleged outbreak of the Hantavirus at Yosemite National Park’s Curry Village during the summer of 2012. In re Yosemite Park Hantavirus Litigation (MDL No. 2532).1 So severe was the fallout from this outbreak that, under certain insurance indemnity agreements, the United States hired private attorneys to represent it in these cases.
The motion to create an MDL proceeding was filed by the United States. Various plaintiffs opposed. In deciding to grant the MDL motion, the panel applied principles
common to MDL motions, albeit laced with some nuances due to the presence of Uncle Sam as a defendant. In particular, the panel addressed two arguments raised by those opposing creation of an MDL: (1)The issues are not complex; and (2) voluntary cooperation among counsel and the parties obviated the need for a formal MDL proceeding.
Complexity (or lack thereof): Interestingly, in finding that the cases presented complex issues, the panel focused on the nature of legal defenses unique to these actions. Due to the presence of the federal government as a defendant, it was anticipated that the United States would assert defenses under the Federal Tort Claims Act (the “FTCA”). The panel found that “such defenses— in particular, the assertion of the ‘discretionary function’ and ‘independent contractor’ exceptions to the FTCA—often entail complicated and lengthy discovery practice.”2
Voluntary Cooperation: As is often argued (successfully) by those opposing MDL transfer, where there are alternative means of cooperation, such as common counsel, there is no need for an MDL. While the panel “applaud[ed] any voluntary efforts at coordinating the litigation,” there were several unique aspects to the discovery in these cases which complicated cooperation efforts. The discovery already served “involved numerous document requests, several depositions, and subpoenas of various third-party witnesses—including three members of Congress.” The panel was not convinced that plaintiffs’ discovery plan was “a workable substitute for centralization.”3
As is often argued (successfully) by those opposing MDL transfer,
where there are alternative means of cooperation, such as common counsel, there is no need for an MDL.
The lessons learned from this MDL decision are: (1) MDLs are available in all types of cases, no matter who the parties are and even if they are governmental entities; and
(2) while one must be mindful of the general principles that the panel will consider in deciding whether to create an MDL proceeding, the nuances of a particular set of
cases, especially those involving Uncle Sam, impact upon the application of these principles to the MDL motion at hand.
Top 10 Venue Arguments
One of the most interesting and least predictable aspects of panel practice is the issue of venue—i.e., to where will the lucky winners of MDL centralization be traveling for their MDL proceeding. While there is certainly a litany of factors that the panel considers as a basis for the selection of an MDL venue, it is somewhat intriguing to explore the creative (and even unusual) arguments presented to the panel as a basis for venue selection.
In examining which arguments actually carried the day with the panel with respect to recent MDL petitions, we offer the following gentle suggestions to practitioners:
- Be practical, concise and truthful;
- Ensure that your argument actually bears on why the venue is helpful for your cases — for example, highlighting that a particular venue hosts an annual bodybuilding convention won’t necessarily advance your advocacy (even if your MDL involves energy supplements and certainly if it does not);
- Serving as a tourism bureau spokesperson, or offering concierge or GPS services, has not always worked in the past.
1. 2014 WL 2547819 (J.P.M.L. June 4, 2014).
- Id. at *1.
These arguments are ranked in order of their creativity, and not in order of which are likely to prevail. The winning arguments from this list are identified at the end of this column.
There are “adequate hotel rooms within easy walking distance of the courthouse.”1
#9: Airport Hubs
“The Minneapolis-St. Paul International Airport ranks 16th in the nation in the number of travelers served with over 400,000 landings and takeoffs annually.”2
#8: The Map Maker
“The Southern District of Ohio, Eastern Division’s Joseph P. Kinneary U.S. District Court courthouse is centrally located geographically, in Columbus, Ohio, the 15th largest U.S. city, and therefore convenient and economical to access” (map included).3
See https://ecf.jpml.uscourts.gov/doc1/8501452773 (at 12).
#7 And Now a Word From the Tourism Bureau
“[Reno] has an active and vibrant tourism industry, [and] ample accommodations for visitors.”4
#6: And Now a Word About Our Hotels
“Las Vegas ... offers luxury hotel accommodations at inexpensive prices.”5
#5: More About Airports
“Gulfport is easily accessible by plane. Accordingly, convenience weighs in favor of transferring and consolidating these actions in the United States District Court for the Middle District of Louisiana.”6
#4: And Yet More About Airports
“Reno-Tahoe International Airport was named the Second Most Efficient Airport in North America by the Air Transport Research Society in 2011.”7
#3: The Convention Planner
“Many annual conventions, such as the Arnold Classic, are held in Columbus, Ohio, and draw visitors from throughout the country.”8 (Note: The Arnold Classic has nothing to do with golf or even the MDL at issue.)
“California is the most populous state in the nation — by far. It has over 37 million people, according to the 2010 Census ... [and] California’s population is one of the world’s most diverse. No race or ethnic group constitutes a majority of the state’s population.” (Emphasis in original.)9
#1: Olympic Fever/America’s Pastime?
“Sixty percent of the 1980 ‘Miracle on Ice’ US Olympic Hockey Team were players born and raised in Minnesota,” a state which is also recognized as the “State of Hockey.”10
- MDL No. 2522, Document No. 91.
- MDL No. 2515, Document No. 31 (map available at p. 12).
- MDL No. 2514, Document No. 22.
- MDL No. 2504, Document No. 1.
- MDL No. 2522, Document No. 1.
- MDL No. 2504, Document No. 22.
- MDL No. 2515, Document No. 31.
- MDL No. 2522, Document No. 20.
- MDL No. 2551, Document No. 10. The only winning arguments were those ranked #10 and #9 in our “Top 10” list. Minnesota’s nexus to the sport of hockey (#1) is the subject of an MDL motion regarding the NHL Concussion litigation, to be heard at the Panel’s upcoming July Session.
JPML Practice Trends
Originally published in January 2015, as “And Now a Word from the Panel...,” a column that rides the circuit with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country, entered its third year.
With winter in full gear and a blizzard pounding the Northeast, the panel once again heads south. This year, the panel returns to its more traditional January location in (hopefully) sunny and warm Miami, Florida. This is a shift from last year’s planned January venue of New Orleans, which was hit with a snow and ice storm, resulting in a rare
JPML “snow day” and postponement of the January hearing until the first week of February.
At the December hearing session in Charleston, South Carolina, the panel considered the second attempt by a distributor of dietary supplements to create an MDL
proceeding, with the exciting possibility of the first Hawaii MDL proceeding in nearly 20 years. But before looking at how the panel ruled on that motion, we take a broader look back at 2014. Specifically, what JPML trends did we see over the past year and how do those compare with prior years?
2014: By the Numbers
It was another busy year for the panel. Continuing the trend of the past several years, the panel is not simply rubber- stamping petitions for creation of an MDL. Although the panel continues to grant more MDL motions than it denies, the panel denied a substantial number of MDL motions. In
2014, as in 2013, the panel denied slightly more than a third of the MDL motions on which it ruled, a significant increase in denials from less than a decade ago. For example, only five years ago (in 2009), the panel denied less than 20 percent of the MDL motions that it considered.
Generally speaking, and as reflected in the chart below, 2014 was remarkably similar to 2013:
2014: MDL Venues
Looking beyond the raw numbers and at one of this column’s favorite topics, what did we learn in 2014 about the panel’s selection of MDL venues and the factors that it considers in selecting these venues?
Out of the 48 MDL proceedings that were created in 2014:
- 35 percent (17) are venued west of the Mississippi (California, Kansas, Louisiana, Minnesota, Missouri, Nevada, Texas, Utah)
- 31 percent (15) are venued in centrally located states (Kansas, Illinois, Louisiana, Minnesota, Missouri, Texas)
- 27 percent (13) are venued in the Northeast (Connecticut, Massachusetts, New Jersey, New York, Pennsylvania)
- 25 percent (12) are venued in Southern states (south of D.C.) (Florida, Georgia, Kentucky, Louisiana, South Carolina, Tennessee, Texas, Virginia, West Virginia)
A map depicting the states in which the new MDLs reside is below:
The factors used by the panel to decide the locale of new MDL proceedings are also similar to those used in prior years, including, but not limited to:
- Location of defendants’ headquarters
- Location of witnesses and documents
- Venue of pending actions
- A geographically centrally located forum
In what appears to be a new 2014 venue selection factor for
a products liability MDL, the panel recently chose a venue based on that district having the “broadest based complaint” of alleged defects.
Looking Back: If at First You Don’t Succeed, Try, Try Again (redux)
The December hearing once again presented the question as to when the panel will, or will not, create an MDL where it previously denied a motion to create an MDL for similar cases. In re Oxyelite Pro and Jack3D Products Liability
Litigation (No. II) (MDL No. 2582) (J.P.M.L. Dec. 12, 2014). In
April of 2014, the panel rejected the initial MDL application finding differences in the health risks and regulatory responses at issue in the various actions. The panel also noted that the class actions at issue raised unique issues relating to a prior state court class settlement agreement.
In its renewed application before the panel, the defendant distributor of the supplements (involving two lines of its products) argued that changed circumstances since its prior application warranted MDL centralization of 16 actions with a total of 45 plaintiffs in five different districts, with a few potential tag-along actions. Moreover, the movant excluded the class actions from the MDL petition. The panel was not persuaded. In denying the motion and the possibility of
an MDL proceeding in Hawaii, the panel considered the following factors:
- Growth of Litigation: The litigation had not grown significantly outside of Hawaii, where a single federal judge was already coordinating discovery and motion practice in 11 actions. Since the initial denial of an MDL motion, only one new federal action had been filed outside of Hawaii.
- Size and Geographic Location of the Litigation: The panel found that there were a limited number of actions. When the panel initially denied an MDL motion, there were 18 pending actions (nine at the time of the filing
of the motion and nine additional potential tag-along actions) in a total of six judicial districts. At the time of the renewed MDL motion, there were a similar number of actions — 16 pending actions in a total of five judicial districts, with only two additional potential tag-along actions. As noted above, most of the actions were pending in Hawaii.
- Lack of Common Factual Issues: The pending cases alleged ingestion of different products or combinations of products with different active ingredients.
- Informal Coordination: The panel observed that the parties had made efforts to informally coordinate the cases and the distributor defendant seeking MDL centralization had a national coordinating counsel.
In addition, the two principal plaintiffs’ counsel had undertaken efforts to advance informal coordination. Although there were discovery disputes, that did not negate the ongoing coordination and the disputes were the subject of ongoing negotiations.
The takeaway for practitioners is that while the panel may grant second chances to create an MDL and as the panel has noted in the past, there must be a significant change in circumstances to warrant a different result. In Oxyelite, the movant failed to make the showing. In fact, nothing much had changed. There was still essentially the same number of
actions in relatively few judicial districts. Moreover, the same lack of commonality among the actions that was initially found remained true months later.
What lies ahead in 2015 for the panel? Will there be other second attempts to create an MDL proceeding? Will the number of overall MDL proceedings remain stable in the new year or will the number of new MDLs outpace those that are terminated? What types of cases will be best suited for MDL treatment? What new issues will make their way to the panel at the next hearing session? Stay tuned for our March edition of “And Now a Word from the Panel” as for the seventh year in a row, the panel heads to a March hearing in San Diego, California — “America’s Finest City.”