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Law360 (March 23, 2021, 5:31 PM EDT) --
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| Alan Rothman |
Consistent with recent panel practice in the wake of the COVID-19 pandemic, the panel's March 25 hearing session will be held remotely as a video teleconference from the panel's Washington, D.C., office via the Zoom meeting app, with the panel's reminder that:
In honor of this column's jubilee edition, we revisit one of our favorite panel topics: the selection of an MDL venue.[2] At the March hearing session, the panel will entertain competing arguments made by the parties in connection with a recent MDL petition as to why the MDL should be located in their respective home state.The use of videoconference technology for presentation of oral argument is not normal Panel practice ... [and] [t]he Panel plans to return to its practice of in-person hearings when it becomes practicable to do so.[1]
Significantly, the arguments touch upon whether a party's home state remains a viable factor for selection of MDL venue in the virtual world of the COVID-19 era and beyond. But before looking ahead, let us review the results of the January hearing session.
In January, the panel considered five new MDL petitions. The panel granted only one of those new MDL motions and denied four of the motions, leading to a panel batting average of .200 to begin this new year.
The new antitrust MDL is venued in California, and none of the MDL petitions considered by the panel involved product liability. At the March hearing session, the panel will again hear only five new MDL petitions.
The overall number of pending MDL proceedings remained stable at 185, as compared to the end of 2020.[3] The panel has slowed its pace of closing out older MDL dockets, terminating only one existing MDL this year through mid-March.[4]
Product liability MDLs continue to comprise approximately a third of the total number of MDL proceedings.[5] The 185 MDL proceedings now encompass 356,379 individual actions.[6] There are currently 24 MDL proceedings that have more than 500 individual pending actions, almost all of which are from among the product liability MDLs.[7]
On another MDL front, the panel is rapidly approaching a new milestone. With the baseball season almost upon us, the panel is now on the cusp of the 3,000 hit club — approaching 3,000 MDL petitions since the panel was established nearly 53 years ago.
PANEL TRIVIA CORNER
January Trivia Question
When was the last year that the panel considered more than 100 new MDL petitions?
Answer to January Trivia Question
In 2009, the panel ruled on 102 new MDL petitions — granting 83 and denying 19 of those petitions, for a batting average of .814. In 2011, more than 100 new MDL petitions were filed, but the panel ruled that year on fewer than 100 petitions.
March Trivia Question
When was the last time that the panel's March hearing session coincided with opening day of the Major League Baseball season?
Like to venture a guess as to this month's trivia question? Have tidbits of panel trivia that you would like to be featured in an upcoming column? Please do not hesitate to drop me a note at arothman@sidley.com.
As we approach the March hearing session, the panel once again confronts the vexing and intriguing venue question.
In particular, the panel faces this issue in In re: Folgers Coffee Marketing and Sales Practices Litigation, an MDL comprised of putative class actions pending in five different federal districts including courts in California, Florida, Illinois, Missouri and the District of Columbia.
Those actions arise from allegedly misleading ground coffee canister labels, purportedly overstating the number of cups of coffee the canister would yield. The defendants are Ohio companies, with their principal place of business in Ohio.
The briefing squarely presents the issue of which factor should control: where defendants are at home, or where some of the class representatives reside and their actions are pending.
In their opening brief, the moving plaintiffs argued in favor of the U.S. District Court for the Central District of California, where two of the actions were filed. In addition, plaintiffs asserted that California should be selected because it is the most populous state, and coffee sales there are likely to exceed that of any other state. Of course, this reasoning would warrant transfer of most MDL proceedings to California.
In response, the defendants argued in favor of an MDL venue in their home court, the U.S. District Court for the Northern District of Ohio, even though no actions are pending in that district.
The defendants contend that the "center of gravity" lies in their home district, "where the vast majority of the key witnesses and documents are located," and where "decisions, actions, and individuals relevant to the claims alleged by the plaintiffs in each of the [cases] occurred."[8]
But in another display of the interplay between the COVID-19 pandemic and MDL practice, the plaintiffs replied that the defendants' home state and the locations of witnesses and documents should carry less weight:
In addition, the plaintiffs more generally argued that in the age of e-discovery, "ease of access to evidence is neutral."[10] But after contending that a defendant's home state should not matter, the plaintiffs proceeded to argue that a factor weighing in favor of California is that three of the plaintiffs reside in Southern California, making the Central District of California "the most convenient forum for the greatest number of plaintiffs."[11][C]ourts all over the country have been holding hearings remotely. The same is true for meetings, depositions, and the like. While there is reason for optimism, it does not appear that a shift to in-person hearings, meetings, or routine inter-state travel will occur in the foreseeable future.[9]
The plaintiffs further advanced typical arguments in favor of venue in the Central District of California. This includes that district being the location of the first-filed and most actions (and the aforementioned plaintiffs), as well as having the most procedurally advanced action, and one in which the proposed MDL judge had already ruled on a motion to dismiss. How the panel balances these various factors should be of interest to all MDL practitioners.
Where will the panel decide to send any new MDL proceedings? Will there be an uptick in the number of MDL petitions? Will the panel create new MDLs to lift its batting average? When will the panel return to its practice of in-person hearings?
While the venue and date for the panel's next hearing remain to be determined (although we surmise that it will take place during its usual late May spot), stay tuned for our next edition of And Now a Word from the Panel, when we will likely celebrate the panel reaching the 3,000 hit club. May all be well and safe!
Alan E. Rothman is counsel at Sidley Austin LLP. He counsels clients on issues relating to practice and procedure before the Judicial Panel on Multidistrict Litigation, and has appeared before the panel on oral argument.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.jpml.uscourts.gov/sites/jpml/files/Supplemental_Notice_of_Hearing_Session-3-25-21.pdf.
[2] See, e.g., "And Now a Word from the Panel: Top 10 MDL Venue Arguments," Law360 (July 29, 2014).
[3] https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-March-15-2021.pdf.
[4] https://www.jpml.uscourts.gov/sites/jpml/files/Recently_Terminated_MDLs-January%201-March%2015-2021.pdf.
[5] https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_MDL_Type-March-15-2021.pdf.
[6] https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_Pending-March-15-2021.pdf.
[7] Id.
[8] MDL No. 2984, Docket Item 15, Defs. Mem. at 6.
[9] MDL No. 2984, Docket Item 19, Pls. Reply Mem. at 3.
[10] Id. (citations omitted).
[11] Id. at 4.
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