United States: And Now A Word From The Panel: 3 Alternatives To MDLs

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 enter the fall season, the panel moves from one Washington to another, heading back east to the nation's capital for its Sept. 29 hearing session following its July session in Seattle.

At its Seattle session, the panel created three new MDLs and denied four MDL petitions. This leaves the panel's batting average at .429 for the year — creating 15 new MDL proceedings and denying 20 MDL petitions. In addition, the overall number of pending MDL proceedings has dwindled by another 5 percent, to 248 (down from 262 only two months ago), with the panel terminating a total of 41 existing MDLs in the first eight and a half months of the year.¹

3 ALTERNATIVES TO MDLs!

Recognizing the ever-dwindling number of MDL proceedings, this column explores the alternatives to MDL proceedings which the panel has recently considered in denying and/or mooting MDL petitions.

1. Section 1404 (Venue) Transfer

In our July edition, this column noted the recent withdrawal of an MDL petition following oral argument before the panel. In re Trader's Joe Company Tuna Marketing and Sales Practices Litigation (MDL No. 2711).²

At its May hearing session, the panel inquired whether a venue transfer to the district court where other related putative class actions were pending, pursuant to 28 U.S.C. § 1404, would be a more efficient solution than the MDL process for this series of actions arising from allegedly "under-filled" tuna cans.³

In connection with a group of product liability cases arising from a dental product, the panel recently considered the transfer of cases pending in a total of two federal districts — the District of Minnesota and the Southern District of Florida. The defendant had its headquarters in Minnesota and moved to transfer the Florida case to Minnesota under 28 U.S.C. § 1404.

The panel observed that if the Section 1404 motion were granted, "that would moot the issue of centralization." The panel relied on its own precedent holding that "where 'a reasonable prospect' exists that the resolution of a Section 1404 motion or motions could eliminate the multidistrict character of litigation, transfer under Section 1404 is preferable to centralization."⁴ Ultimately, after denial of the MDL motion, the federal court in Florida granted the defendant's 1404 transfer motion.⁵

2. Informal Coordination

Often, in denying an MDL petition, the panel will note that even in the absence of an MDL proceeding, the parties can engage in informal coordination. The July hearing session was no exception. In denying various MDL petitions, the panel continued to note the alternative of "voluntary cooperation and coordination"⁶ as well as "informal coordination and cooperative efforts by the parties and the involved courts" which are "sufficient to minimize or eliminate duplicative discovery and other pretrial proceedings."⁷

3. Intradistrict Coordination

In reviewing MDL petitions and the numerosity of actions at issue, the panel recently considered whether most of the actions are pending in a single federal district and/or subject to coordination within that district. Specifically, the panel has viewed multiple actions pending in a single judicial district as if they were de facto only a single action.

Thus, in denying an MDL petition in connection with securities litigation, the panel viewed 28 coordinated (or related) actions in the Southern District of New York together with one pending case in the Eastern District of Pennsylvania as if they were "[e]ffectively" only "two actions."⁸ As the panel found, the two related New York actions "cannot be considered in isolation from the Coordinated Actions proceeding" before a single judge in that district.⁹

Similarly, in denying an MDL petition in connection with product liability litigation, "as a practical matter," the panel viewed five cases pending in the District of Minnesota and one case in the Southern District of Florida as if there were "only two involved actions."¹⁰

What issues will the panel consider at its next hearing session? Will the panel continue to explore alternatives to MDL proceedings? Will the September hearing session raise the panel's batting average for the year closer to .500? Stay tuned for our next edition of "And Now A Word From The Panel," as the panel heads to North Carolina for its Dec. 1 hearing session — with Thanksgiving again falling on the last Thursday of November (precluding a panel hearing session on that day).

Originally appeared in Law360 on September 27, 2016.

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Footnotes

[1] http://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated%20MDLs-1-1-2016_to_9-15-2016.pdf.

[2] See "And Now a Word from the Panel: 4 All-Star MDLs," Law360 (July 26, 2016).

[3] Id.

[4] In re 3M Company Lava Ultimate Prods. Liab. Litig., MDL No. 2727, at 1-2 (J.PM.L. Aug. 5, 2016), citing In re Gerber Probiotic Prods. Mktg. and Sales Practices Litig., 899 F. Supp. 1378, 1379 (J.P.M.L. 2012).

[5] Fernandez v. 3M Company, Case No. 1:16-cv-21490, Doc. No. 40 (S.D. Fla. Aug. 26, 2016).

[6] In re Petrobras Securities Litig., MDL No. 2728, at 2 (J.M.P.L. Aug. 5, 2016).

[7] In re 3M Company Lava Ultimate Prod. Liab. Litig., supra, at 2

[8] In re Petrobras Securities Litig., supra, at 2.

[9] Id.

[10] In re 3M Company Lava Ultimate Prod. Liab. Litig., supra, at 1.

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