Since May 2011, here are the most-cited reasons the JPML has denied Section 1407 centralization of products liability and sales/marketing cases:

The limited number of parties and involved counsel make informal cooperation practicable and preferable to formal centralization.

  • MDL 2366 – IN RE: LOUISIANA-PACIFIC CORP. TRIMBOARD SIDING MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, 6/11/12 Order Denying Transfer (denying transfer of five actions, in part, because “plaintiffs in some of the actions share counsel, and defendant is represented by the same counsel in all actions”)
  • MDL 2340 – IN RE: FRESH DAIRY PRODUCTS ANTITRUST LITIGATION, 4/17/12 Order Denying Transfer (“Plaintiffs in the consolidated actions share counsel, and at least some defendants (including, for example, National Milk Producers Association and Dairy Farmers of America, Inc.) are represented by the same law firms in both movants’ action and the consolidated actions. Given the limited number of actions, we believe that informal cooperation among the involved attorneys is quite practicable.”)
  • MDL 2310 – IN RE: TRILEGIANT MEMBERSHIP PROGRAM MARKETING AND SALES PRACTICES LITIGATION, 12/9/11 Order Denying Transfer (denying centralization of six actions, in part, because “[t]he relatively few involved counsel also weighs against centralization, and should facilitate informal coordination and cooperation across the actions”)
  • MDL 2300 – IN RE: PLAVIX PRODUCTS LIABILITY LITIGATION, 12/14/11 Order Denying Transfer (denying centralization of 12 actions, in part, due to the “limited number of actions and relatively few involved counsel”)
  • MDL 2237 – IN RE: CHILEAN NITRATE PRODUCTS LIABILITY LITIGATION, 5/20/11 Order Denying Transfer (denying centralization of two actions, in part, because “plaintiffs in both actions are represented by one law firm, and another law firm represents SQMNA in both actions. In these circumstances, informal cooperation among the involved attorneys is both practicable and preferable. . . . [Defendant] represents that it has already offered to coordinate discovery, and that it is agreeable to the use of depositions of its witnesses in both actions.”)
  • MDL 2230 – IN RE: QUAKER OATS TRANS-FAT MARKETING AND SALES PRACTICES LITIGATION (denying centralization 4/8/11) (noting that the litigation involves a single defendant and one firm represents the plaintiffs in 4 of 5 actions)
  • MDL ____ – In re: Boehringer Ingelheim Pharm., Inc., Fair Labor Standards Act Litig., 763 F. Supp. 2d 1377, 1378-79 (J.P.M.L. 2011) (denying centralization of four actions in which plaintiffs in three actions shared counsel and, in all actions, the common defendant was represented by the same law firm, concluding that “alternatives to formal centralization, such as voluntary cooperation among the few involved counsel and courts, appear[ed] viable”).
  • MDL _____ – In re Rite Aid Corp. Wage and Hour Emp’t Practices Litig., 655 F. Supp. 2d 1376, 1377 (J.P.M.L. 2009) (denying centralization where plaintiffs in four of six actions shared counsel)

Common factual questions are not sufficiently complex or numerous.

  • MDL 2392 – IN RE: WAGGIN’ TRAIN CHICKEN JERKY PET TREAT PRODUCTS LIABILITY LITIGATION, 9/28/12 Order Denying Transfer (“Although all actions share some factual issues regarding whether chicken jerky dog treats were contaminated by a common source in China, we are unconvinced, on the record before us, that those issues are sufficiently complex or numerous to warrant the creation of an MDL.”)
  • MDL 2374 – IN RE: HONEY PRODUCTION MARKETING AND SALES PRACTICES LITIGATION, 8/2/12 Order Denying Transfer (“Although the actions share some common factual questions regarding the filtration of pollen from honey products, these questions do not appear sufficiently complex or numerous to justify Section 1407 transfer at this time.”)
  • MDL 2348 – IN RE: CREST SENSITIVITY TREATMENT & PROTECTION TOOTHPASTE MARKETING AND SALES PRACTICES LITIGATION, 6/11/12 Order Denying Transfer (“Although the three actions share some factual issues regarding whether P&G deceptively marketed its Crest Sensitivity Treatment and Protection toothpaste,1 we are unconvinced, on the record before us, that those issues are sufficiently complex to warrant the creation of an MDL.”)
  • MDL 2310 – IN RE: TRILEGIANT MEMBERSHIP PROGRAM MARKETING AND SALES PRACTICES LITIGATION, 12/9/11 Order Denying Transfer (denying centralization of six actions, in part, because “[t]he movants have not convinced us that any common factual questions are sufficiently complex or numerous to justify Section 1407 transfer at this time. . . . Although all actions contain allegations of the same basic scheme concerning post–transaction internet marketing and enrollment in membership programs, the differences among the actions will reduce any efficiencies to be gained from centralization. Plaintiffs’ motion encompasses cases against different defendants and alleging varied RICO enterprises. Much of the pretrial proceedings, therefore, likely will vary across the actions, including discovery targeted to the unique defendants in each action and issues, such as arbitration agreements, specific to those defendants.”)
  • MDL 2306 – IN RE: SKINNYGIRL MARGARITA BEVERAGE MARKETING AND SALES PRACTICES LITIGATION, 12/14/11 Order Denying Transfer (denying centralization of six actions, in part, because “[t]hese putative nationwide class actions may share some factual questions regarding the defendants’ marketing practices, but the central allegation that Skinnygirl Margarita beverage was marketed as being all natural despite some level of sodium benzoate appears to be undisputed, and plaintiffs have failed to detail how pretrial proceedings would benefit from centralization. Consequently, the common material disputed facts may be limited in number.”)
  • MDL 2248 – IN RE: NUTELLA MARKETING AND SALES PRACTICES LITIGATION, 8/16/11 Order Denying Transfer (“The actions may share some factual questions regarding the common defendant’s marketing practices, but these questions do not appear complicated. Indeed, the parties have not convinced us that any common factual questions are sufficiently complex or numerous to justify Section 1407 transfer at this time. Cooperation among the parties and deference among the courts should minimize the possibility of duplicative discovery and inconsistent pretrial rulings.”) (citing In re: General Mills, Inc., Yoplus Yogurt Prods. Mktg. and Sales Practices Litig., 716 F. Supp. 2d 1371 (J.P.M.L. 2010) (denying motion for centralization of four actions pending in four districts); In re: DirectBuy, Inc., Mktg. and Sales Practices Litig., 682 F. Supp. 2d 1349, 1351 (J.P.M.L. 2010) (same))
  • MDL ___ – In re AriZona Beverage Co. Products Mktg. and Sales Practices Litig., 609 F. Supp. 2d 1369 (J.P.M.L. 2009).

The actions involve dissimilar legal or factual issues.

  • MDL 2447 – IN RE: MAYBELLINE NEW YORK AND L’ORÉAL PARIS COSMETIC PRODUCTS MARKETING AND SALES PRACTICES LITIGATION, 6/6/13 Order Denying Transfer (“Although all four actions involve allegations that defendants’ lip products do not remain on wearers’ lips for the durations advertised, those products are not the same across all actions. In the Southern District of New York and Northern District of Californian actions, the involved lip products are Maybelline’s SuperStay 10HR Stain Gloss and SuperStay 14HR Lipstick. In the Southern District of California and Eastern District of California actions, the involved product is SuperStay 24HR Lip Color. In addition, two of the actions implicate products not found in any other action. Specifically, the Northern District of California action involves allegations concerning certain mascara products, and the Eastern District of California action involves allegations concerning a foundation product.”)
  • MDL 2374 – IN RE: HONEY PRODUCTION MARKETING AND SALES PRACTICES LITIGATION, 8/2/12 Order Denying Transfer (“In contrast, the differences among the actions are both significant and numerous. The actions involve different defendants, marketing different honey products, and involve different state regulations subject to different legal challenges by the defendants. Plaintiffs have not alleged any conspiracy, collaboration, or other industry-wide conduct by the defendants that would justify centralizing actions naming different honey retailers and producers as defendants.”)
  • MDL 2339 – IN RE: TEAMSTER CAR HAULER PRODUCT LIABILITY LITIGATION, 4/17/12 Order Denying Transfer (denying centralization of eleven personal-injury actions involving allegedly defective trailers, in part, because “the defects alleged and injuries suffered vary among these actions, and various additional defendants are named based on different theories of liability”)
  • MDL 2321 – IN RE: YELLOW BRASS PLUMBING COMPONENT PRODUCTS LIABILITY LITIGATION, 2/9/12 Order Denying Transfer (denying centralization of 13 actions involving brass plumbing component, in part, because “the dissimilarity of numerous claims convince us that the significant inconvenience to the parties and practical case management challenges presented by centralization outweigh its benefits”)
  • MDL 2306 – IN RE: SKINNYGIRL MARGARITA BEVERAGE MARKETING AND SALES PRACTICES LITIGATION, 12/14/11 Order Denying Transfer (denying centralization of six actions; “centralization may not prevent either conflicting or multiple rulings, because plaintiffs bring their claims under the laws of different states. Under some state laws, the state of mind or reliance by individual purchasers may be a critical factor; in others it may not. These issues would not involve common discovery.”)

Alternatives to centralization are preferable (e.g., 1404 transfer; dismissal or stay under the first-to-file doctrine; agreement to voluntarily dismiss actions in favor of one district, etc.)

  • Centralization under Section 1407 “should be the last solution after considered review of all other options.” In re Best Buy Co., Inc., California Song-Beverly Credit Card Act Litig., 804 F. Supp. 2d 1376, 1378 (J.P.M.L. 2011). These other options include “Section 1404 transfer; dismissal or stay under the first-to-file doctrine; agreement by plaintiffs to voluntarily dismiss their actions in favor of one district; and cooperation and coordination among the parties and the various transferor courts.” See MDL 2397 – IN RE: GERBER PROBIOTIC PRODUCTS MARKETING AND SALES PRACTICES LITIGATION, 10/16/12 Order Denying Transfer.
  • MDL 2392 – IN RE: WAGGIN’ TRAIN CHICKEN JERKY PET TREAT PRODUCTS LIABILITY LITIGATION, 9/28/12 Order Denying Transfer (“Various mechanisms are available to minimize or eliminate the possibility of duplicative discovery even without an MDL. In these circumstances, informal cooperation among counsel and coordination among the involved courts are, in our judgment, preferable to formal centralization. Notices of deposition can be filed in all related actions; the parties can stipulate that any discovery relevant to more than one action can be used in all those actions; or the involved courts may direct the parties to coordinate their pretrial activities.”); MDL 2348 – IN RE: CREST SENSITIVITY TREATMENT & PROTECTION TOOTHPASTE MARKETING AND SALES PRACTICES LITIGATION, 6/11/12 Order Denying Transfer (same)
  • MDL 2374 – IN RE: HONEY PRODUCTION MARKETING AND SALES PRACTICES LITIGATION, 8/2/12 Order Denying Transfer (“Available alternatives to centralization may minimize whatever possibilities exist of duplicative discovery or inconsistent pretrial rulings.”)
  • MDL 2237 – IN RE: CHILEAN NITRATE PRODUCTS LIABILITY LITIGATION, 5/20/11 Order Denying Transfer (denying transfer, in part, because “[defendant] represents that it has already offered to coordinate discovery, and that it is agreeable to the use of depositions of its witnesses in both actions”)

Transfer under 28 U.S.C. 1404 would be preferable.

  • MDL 2397 – IN RE: GERBER PROBIOTIC PRODUCTS MARKETING AND SALES PRACTICES LITIGATION, 10/16/12 Order Denying Transfer (detailed discussion of the advantage of section 1404 transfer over section 1407 transfer)
  • MDL 2392 – IN RE: WAGGIN’ TRAIN CHICKEN JERKY PET TREAT PRODUCTS LIABILITY LITIGATION, 9/28/12 Order Denying Transfer
  • In re Republic Western Ins. Co. Ins. Coverage Litig., 206 F. Supp. 2d 1364, 1365 (J.P.M.L. 2002)

Actions were at widely varying procedural stages.

  • MDL 2366 – IN RE: LOUISIANA-PACIFIC CORP. TRIMBOARD SIDING MARKETING, SALES PRACTICES AND PRODUCTS LIABILITY LITIGATION, 6/11/12 Order Denying Transfer (denying transfer of five actions primarily because “such a significant procedural disparity among the subject actions”)
  • MDL 2339 – IN RE: TEAMSTER CAR HAULER PRODUCT LIABILITY LITIGATION, 4/17/12 Order Denying Transfer (“centralization is not warranted here, as some of the actions have been pending in state or federal court for several years, and several are procedurally so far advanced that discovery is completed or nearly completed”)
  • MDL 2321 – IN RE: YELLOW BRASS PLUMBING COMPONENT PRODUCTS LIABILITY LITIGATION, 2/9/12 Order Denying Transfer (denying centralization of 13 actions involving brass plumbing component, in part, due to “the relatively advanced progress of the District of Arizona Richards action”)
  • MDL 2300 – IN RE: PLAVIX PRODUCTS LIABILITY LITIGATION, 12/14/11 Order Denying Transfer (denying centralization of 12 actions, in part, because 10 actions were commenced four to five years before the other 2 actions and “[m]oving defendants themselves acknowledge that they have completed all document production in the constituent District of New Jersey actions (approximately 3.5 million pages); the parties have served and responded to other written discovery; and most, if not all, depositions of the plaintiffs have been completed.”)
  • In re Ambulatory Pain Pump-Chondrolysis Prods. Liab. Litig., 709 F. Supp. 2d 1375, 1378 (J.P.M.L. 2010) (denying centralization of 102 personal injury actions, in part because the actions were at “widely varying procedural stages”)).

Too few actions to warrant consolidation.

  • MDL 2340 – IN RE: FRESH DAIRY PRODUCTS ANTITRUST LITIGATION, 4/17/12 Order Denying Transfer (“there are, as a practical matter, really only two actions in this docket, as the three Northern District of California actions have been consolidated”)
  • MDL 2292 – IN RE: HIGHWAY ACCIDENT IN FULTON COUNTY, OHIO, ON AUGUST 2, 2009, 12/13/11 Order Denying Transfer (denying centralization of two actions)
  • MDL 2237 – IN RE: CHILEAN NITRATE PRODUCTS LIABILITY LITIGATION, 5/20/11 Order Denying Transfer (denying centralization of two actions, in part, because “[t]here are . . . only two actions at issue”) (citing In re Transocean Ltd. Secs. Litig., 753 F. Supp. 2d 1373, 1374 (J.P.M.L. 2010) (“As we have stated in the past, where only a minimal number of actions are involved, the moving party generally bears a heavier burden of demonstrating the need for centralization.”))

Plaintiffs in one action moved for preliminary approval of a proposed nationwide settlement.

  • MDL 2341 – IN RE: BUILDING PRODUCTS OF CANADA CORP. ORGANIC SHINGLES PRODUCTS LIABILITY LITIGATION, 4/17/12 Order Denying Transfer (denying centralization because Plaintiffs in one action “filed a motion for preliminary approval of class action settlement, which defendants represent would cover all claims in the actions before the Panel”)
  • MDL 2232 – IN RE: POWER BALANCE, LLC, MARKETING AND SALES PRACTICES LITIGATION, 4/8/11 Order Denying Transfer (noting that “[c]entralization at this time could delay the [preliminary settlement] proceedings as well as entail additional expense for the litigants and the courts to establish an MDL proceeding with little benefit”)
  • In re Power Balance, LLC, Mktg. & Sales Practices Litig., 777 F. Supp. 2d 1345, 1346 (J.P.M.L. 2011)
  • In re Toyota Motor Corp. Prius HID Headlamp Prods. Liab. Litig., 754 F. Supp. 2d 1380, 1381 (J.P.M.L. 2010)

Some of the actions are (or will be) proceeding to arbitration.

  • MDL 2321 – IN RE: YELLOW BRASS PLUMBING COMPONENT PRODUCTS LIABILITY LITIGATION, 2/9/12 Order Denying Transfer (denying centralization of 13 actions involving brass plumbing component, in part, given that “that one of the actions is being arbitrated and others could proceed to arbitration”)

All defendants uniformly oppose centralization.

  • MDL 2306 – IN RE: SKINNYGIRL MARGARITA BEVERAGE MARKETING AND SALES PRACTICES LITIGATION, 12/14/11 Order Denying Transfer (denying centralization of six actions, in part, because “all defendants uniformly oppose centralization [] a factor which is quite influential where other factors do not strongly favor centralization”)

Localized, intervening causation issues thwart efficiencies of centralization.

  • MDL 2444 - IN RE: SPRAY POLYURETHANE FOAM INSULATION PRODUCTS LIABILITY LITIGATION, 6/6/13 Order Denying Transfer (denying transfer of eight actions primarily because “individualized facts concerning the chemical composition of the different products, the training and practices of each installer, and the circumstances of installation at each residence will predominate over the common factual issues alleged by plaintiffs”)
  • MDL 2321 – IN RE: YELLOW BRASS PLUMBING COMPONENT PRODUCTS LIABILITY LITIGATION, 2/9/12 Order Denying Transfer (denying centralization of 13 actions involving brass plumbing component, in part, because “significant localized intervening causation issues are expected to be at play (i.e., the applicable standards according to which the fittings were made, the thickness of the product, manufacturing conditions, proper installation/training, local water quality, compliance with local building codes, etc.) in each action”)

Proponents of centralization lacked specifics at the JPML hearing.

  • MDL 2381 – IN RE: INTUITIVE SURGICAL, INC., DA VINCI ROBOTIC SURGICAL SYSTEM PRODUCTS LIABILITY LITIGATION, 8/3/12 (“Throughout the briefing process, and when questioned at oral argument, the parties seeking centralization made only vague generalizations about the specific nature of any common questions of fact, where discovery and pretrial proceedings will overlap, and how many cases are expected to be filed.”)

Not practical to centralize actions involving certain claims and remand the remaining actions.

  • MDL 2393 – IN RE: UPONOR, INC., F1960 PLUMBING FITTINGS PRODUCTS LIABILITY LITIGATION, 9/27/12 Order Denying Transfer (“The exceedingly general language that the homeowners employ in most actions to describe the defective components at issue makes it impossible in most cases to transfer “F1960 claims” and then separate and remand, pursuant to Section 1407(a), non-F1960 claims.”)

Trade secrets militate against centralizing competitors.

  • MDL 2444 - IN RE: SPRAY POLYURETHANE FOAM INSULATION PRODUCTS LIABILITY LITIGATION, 6/6/13 Order Denying Transfer (“placing direct competitor manufacturer defendants into the same litigation would require protecting trade secret and confidential information from disclosure to all parties and complicate case management”)