Originally appeared in Law360 on May 27, 2015.
—by Alan Rothman
Welcome to the latest edition 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 spring moves into full gear, the panel heads to Minneapolis, Minnesota (currently home to 10 MDL proceedings), for its post-Memorial Day May hearing.
In a prior edition, this column explored the ABCs of panel practice —notably, Argument, Briefing and Calendar (to Decision). As another school year reaches its close, this month’s column appropriately explores the “MDL Lexicon,” or more specifically the vocabulary and acronyms that govern MDL practice. But before exploring that lexicon — an irresistible pun with the seminal Lexecon decision central to MDL judges’ ability (or inability) to try cases transferred to an MDL proceeding — let us take a look back at the panel’s March hearing.
In particular, that session once again found the panel denying more MDL motions than it granted. Although it is too early to consider this a trend in MDL practice, the panel has denied 13 of the 21 (or more than 60 percent of the) MDL motions that it has considered in 2015, a development worth watching as the year progresses.
Looking Back: A Baby MDL?
At its March session, the panel considered whether to create an MDL proceeding for cases arising from the alleged contamination of baby wipes with the bacteria Burkholderia cepacia and the ensuing nationwide voluntary recall of various baby wipe products. In re Nutek Baby Wipes Litig. (MDL No. 2605).
Not surprisingly, due to a change in circumstances since the filing of the original MDL motion, the panel declined to create what may have originally been a prime candidate for an MDL proceeding. Consistent with the rationale of the panel in denying other MDL motions in recent sessions, the panel denied this motion in light of the following factors:
Minimal Number of Actions. Although there were originally seven cases, the number of pending cases fell to four cases at the time the panel ruled on the motion (three of the actions were subject to the motion and a fourth was a potential related action). Once again, the panel reminded us that, “[w]here only a minimal number of actions are involved, the proponent of centralization bears a heavier burden to demonstrate that centralization is appropriate.”
Limited Number of Counsel. The panel opined that “[h]aving so few counsel involved” was yet another factor in denial of the MDL motion.
Limited Number of Class Actions. The panel observed that because there was only one remaining class action, there were no “overlapping” putative classes.
Pending 1404 Transfer Motions. In two of the actions, pending motions to transfer the cases to a jurisdiction with another pending action (in the Eastern District of New York) militated against MDL transfer because “resolution of the Section 1404 motions ... would eliminate the multidistrict character of this litigation.”
Informal Coordination. The panel “applaud[ed]” plaintiffs for “express[ing] their willingness to cooperate in discovery and scheduling matters.”
But in what may be most revealing as to the panel’s thinking as to the creation of new MDL proceedings, the panel reiterated in a footnote that:
“The Panel has often stated that centralization under Section 1407 ‘should be the last solution after considered review of all other options.’”
The MDL Lexicon
Shifting gears a bit from specific issues before the panel, this column explores an area of import to general MDL practice — specifically, the lexicon, including the vocabulary and acronyms, that MDL practitioners should keep at the tip of their tongues.
- MDL: Multidistrict litigation
- JPML: Judicial Panel on Multidistrict Litigation
- CTO: Conditional transfer order. This is an order issued by the JPML to conditionally transfer an action to an existing MDL proceeding.
- CRO: Conditional remand order. This is an order issued by the JPML to conditionally “remand” (or send back) an action from an existing MDL proceeding to the federal district court from which it was originally transferred.
- Transferor Court: The federal district court where an action was pending prior to transfer to an MDL proceeding.
- Transferee Court: The federal district (MDL) court to which cases are transferred for centralized MDL proceedings.
- Tag-Along Actions: Federal cases which involve “common questions of fact with either (1) actions on a pending motion to transfer to create an MDL or (2) actions previously transferred to an existing MDL, and which the panel would consider transferring under Section 1407.”
- Tag: No, not the game, but rather the process by which a party informs the JPML of additional federal cases (tag-along actions) that are potentially related to an MDL proceeding. This “tag” notice must be filed with the panel via the ECF system. As a technical and practical matter for purposes of ECF filings, practitioners should note that the JPML expects filers to use the document title “Notice of Potential Tag Along” when identifying an action potentially related to an existing MDL proceeding and to use the document title “Notice of Related Action” when informing the JPML of actions potentially related to those actions identified in a pending motion to create an MDL proceeding.
- www.jpml.uscourts.gov: This is the JPML’s website, which contains a host of resources and statistical information regarding MDL proceedings and the JPML. On the website, one can find the JPML rules, including a summary of those rules, hearing information, JPML orders from the most recent hearing session, ECF information, and so much more.
What will summer bring for the panel? Will it continue to “Just Say No” to new MDL proceedings? What new issues will make their way to the panel at the next session? Stay tuned for our July edition of “And Now a Word from the Panel,” as the panel heads west for its second session this year in California for its summer (July 30) hearing in the “City by the Bay,” San Francisco.
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