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

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. As we head into spring and the panel heads to the "Gateway to the South" (Atlanta, Georgia) for its March 29 hearing session, this column takes a look back at the results of the January hearing session.

As we previously noted, the panel began 2018 with a bang, considering a whopping 13 new MDL petitions during its stay in Miami, Florida. Although the panel has struggled to break .500 over the past few years, it batted .538 (7 for 13) for its opening session, creating seven new MDL proceedings and denying six MDL motions.

With 10 new MDL motions currently on the panel's horizon for the March hearing session, the panel will have considered a total of 23 MDL motions by opening day of the 2018 baseball season (coincidentally, the same day as the March hearing session), with four hearing sessions remaining in 2018. This represents a marked increase in the number of new MDL motions, considering that the panel ruled on only 40 new MDL petitions during the entirety of 2017.

In addition, the overall number of pending MDL proceedings has inched up to 224,1 as compared to 221 just two months ago. The panel continues to close out older MDL dockets, terminating a total of five existing MDLs this year through mid-March.2

This month's column will take a slight detour from addressing motions to create new MDL proceedings. Instead, we will examine a panel ruling on a motion to vacate a conditional transfer order (CTO), deciding whether to transfer a case to an existing MDL proceeding.

As a reminder to our readers, once an MDL is created, additional cases are transferred to that proceeding via the "tag-along" process, under which a party, or at times a local federal district court, informs the panel regarding the pendency of the action (i.e., "tags" the action). Thereafter, the case is identified on a CTO issued by the panel. A party has seven days to oppose a CTO.

If an opposition is filed, the CTO is stayed as to that action, to allow for a motion to vacate to be filed with ensuing briefing on the issue. The motion to vacate is then considered by the panel at a hearing session. Unlike motions to establish an MDL proceeding, motions to vacate are almost always decided on the papers, without oral argument, and identified on "Exhibit B" to the panel's hearing session order.3

In October 2017, the panel created an MDL proceeding for a series of consumer actions arising from a telephone, video and internet provider's alleged deceptive billing and other practices, In re CenturyLink Residential Customer Billing Disputes Litig. (MDL No. 2795). At the time of the original MDL petition, the actions were scattered among nine different judicial districts. Ultimately, the Panel decided to establish the MDL proceeding in the District of Minnesota.

Looking Back: An Inconvenient MDL?

Although that venue was not the lead choice by any of the parties, it was suggested "in the alternative, by both moving defendants and a majority of responding plaintiffs."4

As readers of this column are well aware, there are a multitude of factors that the panel utilizes in determining the appropriate MDL venue. Significantly here, the panel selected Minnesota notwithstanding that the primary provider defendant and its affiliates "were headquartered in Monroe, Louisiana, and that the relevant corporate decisions reportedly had been made in Monroe."5

The panel's most recent decision in this MDL proceeding arose from several federal securities actions pending in the Western District of Louisiana, rather than from consumer actions. After the panel issued CTOs for those actions, the provider defendant and its individual officers named in those actions moved to vacate the CTO, as did one of the securities action plaintiffs.

In denying the motion to vacate, the panel concluded that the securities actions "involve common questions of fact with the consumer actions transferred to MDL No. 2795."6 Indeed, in the original MDL motion briefing, the provider defendant described the then-pending securities actions "as derived from the consumer cases — and arising from the same predicate facts and allegations."7

In support of the motion to vacate as to the securities actions, defendants argued that "the Western District of Louisiana is the 'center of gravity' of the securities cases, [and] that the individual defendants might be inconvenienced by transfer to the District of Minnesota."8 The panel rejected this "inconvenience" argument.

First, the panel noted that it was "well aware" of the Louisiana nexus when it established the MDL in Minnesota.9 Second, and what may be even more fundamental to the conduct of MDL proceedings, the panel observed that "any inconvenience to the individual [officer] defendants is, at best, speculative, especially given that they likely will be deposed in or near Monroe."10

By their nature, MDL pretrial proceedings will not be in the home district of all parties. Section 1407 MDL transfer necessarily centralizes actions from around the country into a single forum. Those cases are centralized in the MDL transferee court for pretrial purposes only, but return to their home districts for trial. Even with respect to discovery, and as the panel noted in its decision, it does not necessarily require the parties themselves to travel extensively.

Through the use of technology, travel is even less of an issue for a host of discovery issues. Rather, the linchpin for the panel is balancing the competing factors and determining whether "transfer will serve the convenience of the parties and witnesses and promote the just and efficient conduct of the litigation."11

What MDL petitions and motions to vacate will the panel face next? Will the uptick in new MDL petitions become a trend? Will the panel keep its 2018 average above .500? Stay tuned for our May edition of "And Now a Word from the Panel," as the panel heads again to the "Windy City" (Chicago) for its May 31 hearing session.

Footnotes

1. http://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-March-15-2018.pdf.

2. http://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated%20MDLs-1-1-2018_to_3-15-2018.pdf.

3. See "And Now A Word From The Panel: ABCs Of JPML Practice," Law360 (Sept. 30, 2014).

4. In re CenturyLink Residential Customer Billing Disputes Litig., at 2 (J.P.M.L. Oct. 5, 2017).

5. In re CenturyLink Residential Customer Billing Disputes Litig., at 2 (J.P.M.L. Feb. 1, 2018).

6. Id. at 1.

7. Id. 1-2 (emphasis omitted).

8. Id. at 2.

9. Id.

10. Id.

11. Id. at 1.

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.

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