The following recent developments at the Judicial Panel on Multidistrict Litigation provide some practical pointers when facing litigation in multiple jurisdictions.

MDL Decision to Watch: Dial Up an MDL?

Earlier this month, the Panel denied a motion to create an MDL for six antitrust actions arising from alleged reciprocal "bidding agreements" regarding online advertising of contact lenses. The motion, opposed by defendant 1-800 Contacts, included four actions in the District of Utah and two actions in the Eastern District of Pennsylvania. Although not part of the original MDL petition, a related action was also pending in the Eastern District of Arkansas.

  • The Panel noted there was no dispute that the actions should be litigated together.
  • The issue for the Panel was whether a Section 1407 (MDL) transfer or a Section 1404 (inconvenient venue) transfer was "the better means for accomplishing that objective."
  • A number of actions subject to the petition had already been transferred to the District of Utah pursuant to Section 1404, including an action originally filed in the District of Columbia, a district which various plaintiffs now proposed as the MDL venue.

Noting that the two actions in the Eastern District of Pennsylvania were also subject to a Section 1404 motion to transfer the actions to Utah, the Panel reiterated its prior holdings that "where 'a reasonable prospect' exists that the resolution of a Section 1404 motion or motions could eliminate the multidistrict character of a litigation, transfer under Section 1404 is preferable to Section 1407 centralization" and denied the MDL motion.

» In re 1-800 Contacts Antitrust Litig. (MDL No. 2770).

MDL Practice Pointer

When considering a Section 1407 MDL motion, also think about Section 1404, particularly where Section 1404 motions have already been successful in at least some of the actions subject to the MDL motion.

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.