Welcome to the latest 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 we close out the calendar year and this column's fourth year, the panel moves from our nation's capital to "the Queen City," Charlotte, North Carolina, for its Dec. 1 hearing session.
At its September hearing session in DC, the panel created a host of new MDL proceedings, granting a whopping nine of the thirteen MDL petitions that it considered at that hearing session—batting .692 for the session. This represented a change in course for the panel, which until September had created only 14 new MDLs for the entire year!
In addition, the overall number of pending MDL proceedings has dwindled by another notch, to 245 (down from 248 two months ago), with the panel continuing to clear out MDL dockets, terminating a total of 53 existing MDLs this year through mid-November.1
This month's column revisits a critical—and arguably the least predictable—facet of panel practice, namely, the panel's selection of the venue for a new MDL proceeding. A number of years ago and in honor of the tenth edition of this column, we explored the "top 10" venue arguments.2
Of course, sports featured prominently, including our #1 venue argument that a proposed MDL proceeding arising from allegations against the NHL for hockey player concussion related injuries should be venued in Minnesota—because Minnesota is the "Hockey State," and 60 percent of the U.S. "Miracle on Ice" 1980 Olympic hockey team was born and raised in Minnesota.3
The panel ultimately selected Minnesota as the venue for that MDL proceeding, but, not surprisingly, referenced neither of those reasons in its decision—but the panel noted that many of the "parties and witnesses ... may be located in nearby Canada."4
Top 5 Reasons for MDL Venues
We now look back at the panel's reasoning for selecting a particular MDL venue for the (relatively smaller number of) newly minted MDL proceedings, as well as arguments advanced by the parties, over the past year.
The Parties' Headquarters
Time and again, the panel has premised its selection of an MDL venue on the ground that a party's headquarters are located in or near that venue. This year was no exception.
For example, in yet another sports MDL, the panel centralized cases arising from online daily fantasy sports contests in the District of Massachusetts because one of the defendants "is headquartered in the district and individual defendants reside either in the district or nearby, which will facilitate discovery."5
More recently, in granting an MDL motion considered at the September hearing session, the panel centralized putative class actions arising from an alleged data breach in the District of Arizona because the defendant "is headquartered in this district, and the witnesses and documents relevant to the facts of this litigation are located there."6
Procedurally Advanced Action
In centralizing a group of product liability actions, some of which were beyond their nascent stages, the panel last month decided to select the district and judge with "the most procedurally-advanced action."7
Of course, as readers of this column are aware, the panel has repeatedly stated that the presence of an action in the district is not a prerequisite for that district's selection as an MDL venue.8 In addition, there are times where the presence of actions at different procedural stages warrants denial of the MDL motion.9
Jurist Without MDL Experience
In more than ten of its decisions this year to create an MDL proceeding, the panel specifically noted that it was assigning the MDL to a "jurist who has not yet had the opportunity to preside over an MDL."10
Although there may have been additional factors supporting centralization before that judge, it is interesting to note that the panel expressly stated that the lack of MDL experience was a relevant consideration. This approach will undoubtedly broaden the pool of federal jurists with MDL experience across the nation.
Similar or Related Actions
Even if a federal district does not have any pending actions (or very few actions) subject to the MDL motion, that venue may be an appropriate selection where other actions presenting similar or related issues are pending.
For example, the panel granted an MDL motion considered at the September hearing session arising from the alleged fraudulent sales practices regarding laminate flooring and centralized those cases in the Eastern District of Virginia. A judge in that district presided over another MDL proceeding arising from "allegedly inappropriate emissions of formaldehyde from the same laminate flooring" and the cases involved "some of the same plaintiffs as in the new MDL petition."11
In a similar vein, the panel last month centralized a series of actions arising from alleged securities fraud in the Southern District of New York where the principal defendant's "Chapter 11 bankruptcy proceeding is underway."12 Earlier this year, the panel centralized a series of antitrust actions in a district where "a related criminal action is pending."13
Nearby State Court Proceedings
In recent years, the panel has considered the presence of nearby state court proceedings in determining an appropriate MDL venue.14
In granting an MDL motion considered at the September hearing session regarding product liability actions arising from the use of talcum powder products, the panel selected the District of New Jersey, which "is located in close proximity to a large number of state court actions pending in New Jersey and other jurisdictions on the East Coast of the United States."15
Moreover, in connection with an MDL motion scheduled to be heard at the December 1 hearing session, a group of product liability plaintiffs has argued in favor of the District of New Jersey on the ground (among others) that they "expect federal/state coordination will be needed" for their actions and that there will be "significant state court litigation as well" in that state due to the presence of the defendants in New Jersey.16
What issues will the panel consider at its next hearing session? What new arguments will the panel consider, and adopt, for the venue of an MDL proceeding? Will the panel grant enough MDL petitions to close the year above .500? Stay tuned for our "Year in Review" edition of "And Now a Word from the Panel," as the panel once again heads south to its popular winter destination of Miami, Florida, for the Jan. 26, 2017, hearing session.
Footnotes
1 http://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated%20MDLs-1-1-2016_to_11-15-2016.pdf
2 See "And Now A Word From The Panel: Top 10 Venue Arguments," Law360 (July 29, 2014).
3 Id.
4 In re National Hockey League Players' Concussion Injury Litig., MDL No. 2551, at 1 (J.P.M.L. Aug. 19, 2014).
5 In re Daily Fantasy Sports Litig., MDL No. 2677, at 5 (J.P.M.L. Feb. 4, 2016).
6 In re Sprouts Farmers Market Inc. Employee Data Security Breach, MDL No. 2731, at 1 (J.P.M.L. Oct. 6, 2016).
7 In re Johnson & Johnson Talcum Powder Prods. Mktg., Sales Practices and Prods. Liab. Litig., MDL No. 2738, at 3 (J.P.M.L. Oct. 4, 2016).
8 See "And Now A Word From The Panel: Snow Day!," Law360 (March 25, 2014).
9 See, e.g., In re Caribbean Cruise Line Inc., Telephone Consumer Protection Act (TCPA) Litig., MDL No. 2604 (J.P.M.L. Feb. 6, 2015); see also, "And Now A Word From The Panel: Just Say No (To MDLs)?," Law360 (Mar. 24, 2015).
10 See, e.g., In re 21st Century Oncology Customer Data Security Breach Litig., MDL No. 2737, at 2 (J.P.M.L. Oct. 6, 2016).
11 In re Lumber Liquidators Chinese-Manufactured Flooring Durability Mktg. and Sales Practices Litig., MDL No. 2743, at 2 (J.P.M.L. Oct. 4, 2016).
12 In re SunEdison Inc., Sec. Litig., MDL No. 2742, at 3-4 (J.P.M.L. Oct. 4, 2016).
13 In re Liquid Aluminum Sulfate Antitrust Litig., MDL No. 2687, at 2 (J.P.M.L. Feb. 4, 2016).
14 See "And Now A Word From The Panel," Law360 (March 19, 2013).
15 In re Johnson & Johnson, supra, at 3.
16 See In re Invokana (Canagliflozin) Prods. Liab. Litig., MDL No. 2750, Doc. 1, at 11 (petition filed Sept. 20, 2016).
Originally appeared in Law360 on November 29, 2016.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
