United States: And Now A Word From The Panel: Billing For An MDL

Last Updated: September 28 2017
Article by Alan Rothman

Welcome to the latest installment of "And Now A Word From The Panel," a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country.

At its July hearing session in Los Angeles, the panel went two for five, granting only two out of the three MDL petitions it considered. With these latest decisions, the panel saw its 2017 "batting average" inch up slightly – from .391 to .393 – now having created a total of 11 new MDLs and denying 17 MDL petitions for the year.

In addition, the overall number of pending MDL proceedings currently stands at 227, down from 233 just two months ago. The panel continues to make progress in closing older MDL dockets, terminating a total of 29 existing MDLs this year through mid-September.1

As the AL East Pennant Race reaches the home stretch, the panel heads back east to Boston, backyard of the currently league-leading Red Sox, for its Sept. 28 hearing session. At that session, the panel will consider seven potential MDL dockets.

Once again, the panel considers motions involving a diverse range of industries and subject matter. As this column has emphasized time and again, this diversity illustrates the import of the MDL process to all types of industries and that the MDL world is not limited to product liability or other particular types of cases. But significantly, no matter what the issue or dispute, the principles addressed by these motions and the panel decisions have relevance to all MDL proceedings.

Two of the seven MDL motions on the docket relate to the telecommunications industry. One is an attempt to create yet a third MDL proceeding for Telephone Consumer Protection Act claims regarding "robocalls" by the named telecommunications defendant (albeit involving a different phone system). In re Enhanced Recovery Company LLC Telephone Consumer Protection Act Litig. (No. III) (MDL No. 2793).

The second proposed telecommunications MDL arises from alleged deceptive billing and other practices of a phone, video and internet provider. In re CenturyLink Residential Customer Billing Disputes Litig. (MDL No. 2795).

Before turning our attention to the "billing" MDL motion, we take a look back at the panel's July hearing session and the question we posed in our last column: Who wants to be an MDL?2

Looking Back: Who Wants to Be an MDL?

In our July column, we discussed some unusual – or perhaps more aptly described as intriguing – candidates for MDL centralization heard at the panel's July hearing session. In re American Civil Liberties Union Freedom of Information Act Requests Regarding Executive Order 13769 (MDL No. 2786); In re Fyre Festival Litig. (MDL No. 2787).3 Applying normative MDL principles, the panel declined the invitation to add those litigations to the MDL ranks.

A "Travel Ban" FOIA MDL?

In denying a motion by the U.S. Department of Homeland Security and U.S. Customs and Border Protection (CBP) to centralize federal lawsuits arising from FOIA requests related to Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States), the panel found:

  • A lack of complex issues: The issues are "relatively straightforward and unlikely to entail extensive pretrial proceedings."
  • Common legal issues are not dispositive: The panel further found that common issues relating to the CBP's decisions to withhold certain information under FOIA's exemptions are "legal," rather than factual, issues.
  • Reducing litigation costs is insufficient: In an important point for MDL practitioners, the panel stated that the potential reduction of litigation costs by establishing an MDL proceeding "without more, does not warrant centralization, particularly, where, as here, there is little likelihood of complex pretrial proceedings."
  • A right to re-petition: Despite the denial of the MDL motion, the panel acknowledged that "[i]n the unlikely event that these cases involve a significant amount of duplicative pretrial discovery, Defendants are free to file another motion for centralization."4

A Weekend Getaway MDL?

In denying an MDL arising from the allegedly fraudulent and misleading promotion of a weekend festival on the island of Great Exuma in the Bahamas, the panel held that the common factual issues did not outweigh the panel's view that "informal coordination is a practicable alternative to centralization."5

In light of the litigation involving only six actions in four districts, and with a limited number of plaintiffs counsel coupled with a limited number of common defendants, an MDL proceeding was not warranted.

This decision illustrates that Section 1407's requirement of "one or more common question of fact" is necessary but not sufficient for creation of an MDL proceeding.

Looking Forward: Billing for an MDL?

Turning back to the upcoming hearing session, the panel will consider an MDL motion arising from a series of putative class actions alleging that a telecommunications provider engaged in practices or policies to misrepresent its services and charge undisclosed or higher prices on customer bills. In re CenturyLink Residential Customer Billing Disputes Litig. (MDL No. 2795).

At the time of the filing of the MDL motion, there were nine putative class actions filed by phone, video and/or internet customers of the defendant. The cases involved allegations of incorrect prices, hidden fees, incorrect billing dates and unordered phone charges as well as poor quality.

Significantly, the source for these allegations was an employee whistleblower lawsuit contending that the defendant had a nationwide "practice" or "culture" to overbill customers.

Although most plaintiffs agree that MDL centralization is appropriate, several plaintiffs oppose centralization primarily on the ground that there are various legal differences among the various actions.

As the panel has admonished time and again (and as this column has noted), the key to MDL centralization under Section 1407 is the presence of one or more "common questions of fact." Differences relating to state law, including the presence of varying state wide classes, remedies, state consumer protection statutes and even an argument that actions may be subject to motions to compel arbitration are simply irrelevant to the MDL calculus.

What MDL petitions will the panel face next? What industries will confront an MDL petition? Will the panel raise its "batting average" for the year? Stay tuned for our next edition of "And Now A Word From The Panel," as the panel heads to the nation's "heartland" for its final hearing session of 2017, scheduled for Nov. 30 in St. Louis, Missouri, a somewhat rare November (rather than early December) panel hearing.


1. MDL Statistics Report - Docket Summary Listing

2. See And Now A Word From The Panel: Who Wants To Be An MDL?, Law360 (July 25, 2017).

3. See id.

4. See In re American Civil Liberties Union Freedom of Information Act Requests Regarding Executive Order 13769, MDL No. 2786 (J.P.M.L. Aug. 2, 2017).

5. In re Fyre Festival Litig., MDL No. 2787 (J.P.M.L. Aug. 2, 2017).

Originally published by Law360.

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