United States: And Now A Word From The Panel: A 21st Century MDL

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 (or simply the "panel," for short) as it meets on a bimonthly basis at venues around the country.

In honor of our 21st installment, this month's column will address a burgeoning category of cases subject to MDLs during the 21st century — cyber MDLs, or more specifically, cases arising from an alleged data privacy breach. Since the beginning of 2015, the panel has established seven MDL proceedings in this area. At first glance, these cases appear to be a far cry from the electrical equipment antitrust cases which spurred Congress to establish the panel and MDL proceedings 48 years ago. But upon further reflection, the growth of these cyber MDL proceedings illustrates that the standards used to create MDL proceedings cut across industries and disciplines. The elasticity of the MDL statute and applicability of MDL procedures to our 21st century technological advances is a tribute to the vitality of the MDL process nearly five decades after its inception.

As we approach the heat of summer, the panel heads to the "Windy City" (Chicago, Illinois,) for the second time in three years for its May hearing session. But before looking ahead, we again take stock of the panel's scorecard for the year. At its March hearing session in Santa Barbara, California, the panel considered nine MDL petitions. In creating five new MDL proceedings, the panel raised its batting average for 2016 from .250 to .412, creating seven new MDLs and denying 10 petitions so far this year. Moreover, the overall total of existing MDL proceedings has dropped to 263, with the panel terminating a total of 18 existing MDLs in the first four and a half months of this year.1

Looking Back: A 21st Century MDL!

Returning to our 21st century MDL, at its March hearing session, the panel considered a petition to create an MDL proceeding arising from an alleged violation of privacy rights via the installation of software on a "Smart TV." In re Vizio Inc., Consumer Privacy Litigation, MDL No. 2693 (J.P.M.L. Apr. 7, 2016). In particular, plaintiffs in the actions alleged that the defendants collected data such as the (i) customer's television provider; (ii) the program and commercials viewed on the "Smart TV" including the time, date, channel and whether the program was viewed live or at a later time; and (iii) the Internet Protocol address associated with the television. The underlying claim in the 20 pending actions — including 15 original actions and five additional related actions — was that the defendants improperly shared this mined data with third parties, to "push targeted advertisements both to the Smart TV and to other devices (such as smart phones, desktop computers and tablet computers) that shared the same internet connection."2

The actions were pending in various federal district courts around the country — including California, Arkansas, Florida, Illinois and Indiana. All parties who responded to the MDL petition supported creation of an MDL. As is often the case, the salient battle was venue. Ultimately, the panel selected the Central District of California, where nearly half of all of the actions were pending and where defendants are headquartered. Moreover, in what appears to becoming a trend in panel practice, the panel steered this new MDL to a district court judge "who has not yet had the opportunity to preside over an MDL."3

This is not to suggest that this new wave of MDL proceedings will supplant the more traditional MDL staples such as product liability litigation. See, e.g., In re Window Wood Clad Window Prods. Liab. Litigation, MDL No. 2688 (J.P.M.L. Apr. 7, 2016). But the MDL world in many ways mimics the world around us. As cybersecurity and e-data privacy breaches continue to capture the general news headlines, we can only expect that the MDL docket for litigation arising in these areas to burgeon as well. Interestingly, the panel currently categorizes data privacy breach MDLs as a "miscellaneous" case for purposes of its statistical reporting.4 Time will tell whether this recent surge in e-data breaches/cyper MDLs will merit its very own MDL category!

Looking Forward: Food Fight (Redux)!

Three years ago, this column explored the panel's approach to a host of food related MDL petitions arising from alleged marketing and advertising practices.5 In particular, we highlighted the factors utilized by the panel in deciding whether to create food MDL proceedings, including the:

  • Number of actions
  • Number of federal districts in which the actions are pending
  • Geographic proximity of the pending federal actions
  • Number of plaintiffs counsel involved
  • Pendency of overlapping class action
  • Procedural posture of the actions
  • Complexity of the issues involved

Indeed, food MDLs are as much a part of the fabric of the 21st century MDL landscape as cyber MDLs, antitrust MDLs, product liability MDLs, patent MDLs and even sports MDLs. There are currently at least a dozen MDL proceedings arising from the marketing of food products as diverse as drinks, snack bars (among other snack items), spices and pet food.

This month, the MDL considers the latest applicant to join the ranks of the food MDLs. In re Trader's Joe Company Tuna Marketing and Sales Practices Litigation (MDL No. 2711). This tuna product MDL petition arises from the alleged "underfilling" of six different types of tuna sold in 5 ounce cans, which allegedly contained less than the minimum "standard of fill" for cans of that size. The defendant retailer supports creation of an MDL proceeding, originally sought by a plaintiff, for several nationwide federal class actions, including cases filed in California, Illinois and New York. In support of the MDL petition, defendant acknowledges the relative paucity of cases, but notes that the pending cases (three at the time of the briefing), all in their early stages, involve different plaintiffs counsel and the nationwide class actions present overlapping classes. Since defendant's briefing, a fourth nationwide class action has been filed.

Although the panel often grants MDL motions when plaintiffs and defendants agree to centralization, the key for practitioners to watch with respect to this proposed food MDL is whether the presence of only four actions warrants MDL treatment. Looking to the factors previously used by the panel in addressing food MDL petitions, these cases spanning from East to West appear to be ideal candidates.

The takeaway for practitioners is that whether or not an MDL petition is a 21st or 20th century MDL, and whether or not it involves technology, food, sports, antitrust or product liability, the panel will apply similar standards in evaluating the propriety of creating a new MDL and where that MDL will be venued.

What issues will the panel consider at its next hearing session? Will the panel face more 21st century technology based, or even food, MDL petitions? What will be the latest trend in the MDL world? Stay tuned for our July edition of "And Now a Word from the Panel," as the panel heads back West — to Seattle, Washington, for its July 28 hearing session.

Originally appeared in Law360 on May 24, 2016. Read the full article on Law360 (subscription required).


[1] http://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated%20MDLs-1-1-2016_to_5-16-2016.pdf.

[2] In re Vizio, Inc., Consumer Privacy Litig., MDL No. 2693 (J.P.M.L. Apr. 7, 2016)

[3] Id. at 2; see also, "And Now a Word from the Panel: 2015 JPML Practice Trends," Law360 (Jan. 26, 2016); In re Domestic Airline Travel Antitrust Litig., MDL No. 2656, at 2 (J.P.M.L. Oct. 13, 2015); In re TD Bank, N.A., Debit Card Overdraft Fee Litig., MDL No. 2613, at 2 (J.P.M.L. Apr. 2, 2015).

[4] http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Type-May-16-2016.pdf.

[5] See "And Now a Word from the Panel," Law360 (May 29, 2013); "And Now a Word from the Panel," Law360 (July 23, 2013); "And Now a Word from the Panel," Law360 (Sept. 24, 2013).

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.