Originally appeared in Law360 on January 26, 2016.
—by Alan Rothman
Welcome to our fourth year of “And Now a Word from the Panel,” a bimonthly column that “rides the circuit” with the Judicial Panel on Multidistrict Litigation as it meets at venues around the country.
As in years past, the panel once again heads south. We return to the panel's traditional January location, the Sunshine State, though this year there's a slight shift west to Ft. Myers (rather than Miami or Orlando).
What better way to add to the excitement of the NFL’s 50th “Big Game” in early February then to once again explore the confluence of the worlds of football and MDLs. As this column has previously reported, MDL fanatics may finally have their wish of a true “Fantasy Football MDL.” But before we indulge ourselves and also report on the panel’s December hearing in the “Big Easy,” we take a broader look back at 2015. Specifically, we examine the JPML trends over the past year and how they compare with prior years.
2015: By the Numbers
It was another busy year for the panel. And with football very much on the panel’s mind (and docket), we are pleased to report that following the lead of the NFC East winner, the panel avoided a sub-500 season, with a strong finish at year-end. More precisely, with its grant of eight of the 10 MDL petitions considered at the December hearing, the panel crawled its way back to finish 2015 with a .500 record—granting 36 of the 72 MDL petitions it ruled upon. This continues the trend of recent years, in which the panel has appeared to give greater scrutiny to MDL petitions. Down from its .640 record for 2014, the panel’s 2015 record was a far cry from 2009, when the panel granted more than 80 percent of the MDL motions that it considered. Interestingly, there are currently 271 MDL proceedings, a nearly 7 percent decrease from the 290 MDLs pending at the end of 2014.
The table below compares the panel’s 2015 “stats” with those from 2014:
2015: MDL Venues
Looking beyond the raw numbers and at one of this column’s favorite topics, we can glean a number of tidbits from the panel’s 2015 selection of MDL venues and the factors that it considered.
The new 2015 MDLs are relatively evenly dispersed throughout the country. Out of the 36 MDL proceedings that were created in 2015:
- 31 percent (11) are venued in the centrally located, Midwest (Illinois, Indiana, Kansas, Minnesota, Missouri, Ohio)
- 25 percent (9) are venued in the West (Arizona, California, Oregon)
- 25 percent (9) are venued in the South (Alabama, the District of Columbia, Florida, South Carolina, Texas, Virginia)
- 19 percent (7) are venued in the Northeast (Massachusetts, New Jersey, New York, Pennsylvania)
A map depicting the states in which the new MDLs reside is below:
The factors used by the panel to decide the locale of new MDL proceedings continue to generally echo those used in years past, including, but not limited to:
- Location of defendants’ headquarters
- Location of witnesses and documents
- Venue of pending actions
- Venue of first-filed action
- A geographically centrally located forum
Nevertheless, MDL practitioners should be mindful that the following factors were used by the panel in 2015 to select an MDL judge:
- The judge has not yet presided over an MDL
- For patent cases, the judge is a participant in the national “Patent Pilot Program”
- For a particularly complex MDL, the judge previously presided over 9 MDL dockets
And we were once again reminded by the panel that an action need not be pending in the district ultimately selected as the MDL transferee district court.
Looking Back: An Armchair Quarterback MDL?
At its December hearing, the panel created an MDL proceeding for a series of putative class actions alleging antitrust violations as a result of the exclusive distribution of television rights to the NFL’s Sunday afternoon out-of-market games. In re National Football League’s “Sunday Ticket” Antitrust Litigation, MDL No. 2668 (J.P.M.L. Dec. 8, 2015). The panel concluded that the more than 20 (original and related) actions, “share[d] complex factual questions” and all parties either supported or did not oppose creation of an MDL proceeding.
With respect to venue (the only issue in dispute among the parties), the panel ultimately selected the Central District of California, where the majority of the actions were pending and where the satellite television provider had its headquarters. It was also the district supported by all of the defendants and most of the responding plaintiffs.
Looking Ahead: A Fantasy Football MDL?
As this column has been anticipating for the past several months, a fantasy football MDL may finally be on the horizon. With fantasy football being the subject of no fewer than three MDL petitions docketed for the January hearing, the panel will consider whether to create an MDL for a series of actions against providers of fan versus fan online daily and weekly fantasy sports contests. As explained in a panel filing, in “fantasy sports, participants assemble teams by selecting players at various positions from a particular sport or league. The participants then earn points based on the statistical in-game performance of the players they selected.” In re Daily Fantasy Sports Marketing and Sales Practices Litigation (MDL No. 2677); In re Daily Fantasy Sports Marketing and Sales Practices Litigation (MDL No. 2677); In re DraftKings Inc., Fantasy Sports Litigation (MDL No. 2678); In reFanDuel Inc., Fantasy Sports Litigation (MDL No. 2679).
In the dozens of putative class actions comprising this litigation, there are essentially three theories of liability asserted against the defendants:
(1) Employees were permitted to participate in competitors’ fantasy sports contests using nonpublic (insider) information that allegedly gave them a competitive advantage;
(2) The defendants’ offers to match entrants’ initial deposits deceived those entrants; and
(3) Daily Fantasy Sports (DFS) sports games constitute unlawful gambling under the laws of various states.
As with the recently created NFL “Sunday Ticket” MDL, with many overlapping putative class actions pending in different jurisdictions, the question will likely not be whether to create an MDL, but rather where an MDL will be located. The leading candidates appear to be the Southern District of New York and the District of Massachusetts, where many of the actions are pending and the defendants are headquartered, but other districts have been proposed as well. We should also watch how the panel handles the multiple proposed MDL proceedings involving multiple theories of liability and defendants.
But no matter what the ultimate outcome of these petitions, it appears that football fans will have much to follow in early February—keeping an eye on both the “Big Game” and the panel website!
What lies ahead in 2016 for the panel? Will there be other football or sports MDLs? Will the panel fail to hit .500 for the creation of new MDL proceedings? Will the overall number of MDLs continue to shrink? What new issues will make their way to the panel at the next hearing? Stay tuned for our March edition of “And Now a Word from the Panel,” as we head to a new venue within the Golden State (California). In a departure from the usual March venue of “America’s Finest City,” San Diego, the panel heads to Santa Barbara.
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Looking for more JPML insight from Alan Rothman? Read previous articles.
 This includes separately counting the grant of 4 MDL motions which were consolidated in a single MDL proceeding.
 The regions are based on those used for purposes of the US census. In addition, the Midwest MDL tally separately counts the 4 MDL motions consolidated into a single MDL proceeding.
 In re Domestic Airline Travel Antitrust Litig., MDL No. 2656, at 2 (J.P.M.L. Oct. 13, 2015); In re TD Bank, N.A., Debit Card Overdraft Fee Litig., MDL No. 2613, at 2 (J.P.M.L. Apr. 2, 2015).
 In re Industrial Print Techns., LLC, Patent Litig., MDL No. 2614, at 3 (J.P.M.L. Apr. 7, 2015).
 In re Volkswagen “Clean Diesel” Mktg., Sales Practices, and Prods. Liab. Litig., MDL No. 2672, at 3 (J.P.M.L. Dec. 8, 2015).
 In re Bard IVC Filters Prods. Liab. Litig., MDL No. 2641, at 2 (J.P.M.L. Aug. 17, 2015).
 In re DraftKings, Inc., Fantasy Sports Litig., MDL No. 2678, Document No. 48, at 1 n.3.
 This is also currently the subject of state court litigation, not part of the federal MDL petition.
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