United States: And Now A Word From The Panel: MDL Venue Choices

Last Updated: December 6 2016
Article by Alan Rothman

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.


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.

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.

Similar Articles
Relevancy Powered by MondaqAI
Arnold & Porter
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Arnold & Porter
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions