General Publications January 9, 2015

“MDL Strategies: Choosing a Transferee Court,” Law360, January 9, 2015.

Extracted from Law360

When it comes to consumer class actions, it is common to see multiple cases filed in various federal and state courts at or around the same time, alleging the same issue with respect to a product or service. In the highest profile cases involving well-known companies and everyday products, such as car manufacturers and automobiles, the number of class actions filed can be staggering. When this occurs, motions are typically filed by plaintiffs, and often defendants, before the Judicial Panel on Multidistrict Litigation (JPML) requesting consolidation of the cases into a multidistrict litigation (MDL) before a single federal district judge.

Under 28 U.S.C. § 1407(a), cases involving one or more common questions of fact may be transferred to any district for consolidated pretrial proceedings if the transfer is convenient for the parties and witnesses and promotes efficiency in the litigation. In transferring class actions into an MDL, the JPML often explains that consolidation of pretrial proceedings will “eliminate duplicative discovery,” “prevent inconsistent pretrial rulings, including with respect to class certification,” and “conserve the resources of the parties, their counsel, and the judiciary.”[1]

The JPML not only decides whether the cases should be consolidated into an MDL, but also decides where they go. Although each action transferred into the MDL must be remanded to its transferor court at the conclusion of pretrial proceedings[2], as a practical matter, the probability of remand is extremely low.[3] Because it will set the stage for the remainder of the litigation, the choice of MDL court is a major strategic consideration when beginning MDL proceedings. As a result, the various plaintiffs and defendants in the constituent cases are often at odds regarding where the cases should be consolidated and typically present substantial argument to the JPML posturing for a preferred forum. While the JPML may transfer the proceedings to a district judge in any of the 94 federal judicial districts, in most cases there are a handful of districts that stand out as the most appropriate forums for the MDL. In presenting arguments to the JPML, parties facing consolidated litigation should carefully consider both the administrative and substantive impact of each possible district and district court judge.

Convenience, Efficiency and Experience — The Factors that Will Be Considered by the JPML and the Parties in the Selection of an MDL Judge

In its search for convenience and efficiency, the JPML will look to geographic and administrative considerations, such as the proximity of the transferee district to the parties’ residences or headquarters, the location in which the majority or a large concentration of the actions were filed, the proximity of the forum to relevant documents, and any significant progress that has already occurred in any constituent cases pending in potential transferee districts.[4] The JPML also considers factors such as the docket conditions of a potential transferee district or MDL judge, the experience of the potential MDL judge, the familiarity of the MDL judge with factual or legal issues as a result of presiding over previous actions with similar issues, and the accessibility of the transferee district court.[5]

Although the JPML has ultimate authority regarding the location of the transferee court, parties should closely consider these and other logistical issues to determine whether to argue for a particular district, and if so, which to propose. While the JPML may assign an MDL to a district not requested by any plaintiff or defendant, including to a district without any of the constituent actions, this is unlikely, and the JPML will give due consideration to the districts requested by the parties.[6] Factors most important to the parties often include the locations of corporate headquarters, manufacturing facilities, marketing and advertising offices, or customer support operations — all of which may impact the location of witnesses, documents or potential experts. Parties may also consider the scheduling impact of consolidation, since the condition of the docket and the average time to trial can vary considerably among districts.

The Substantive Impact of Differences in the Procedural Law — Another Factor that Should Be Carefully Considered by the Parties at the Outset

While these administrative considerations will drive the proceedings before the JPML, parties should operate with a keen awareness of the substantive impact of important differences in the controlling interpretations of procedural and federal law among the possible transferee districts. Although the state substantive law that would be applied to the claims based on the choice-of-law rules of the original transferor court will carry over to the MDL[7], the MDL judge will apply procedural and federal law as interpreted by his or her own circuit.[8] As a result, the forum selected by the JPML can have a substantial impact throughout an MDL class action. While there are typically only two to four serious candidates for the MDL forum, in large consumer class actions, they can be districts scattered across the country within multiple different federal circuits.[9]

The arguments presented in favor of a particular transferee district should be tied to the administrative factors that are likely to influence the JPML’s decision, since the JPML will not take into consideration the prospect of an unfavorable ruling by the transferee court or the possibility that another district judge may be more favorably disposed to a litigant’s position.[10] Nevertheless, a party’s underlying reason for preferring or opposing a potential transferee district may be significantly influenced by varying circuit court interpretations of relevant procedural and federal law.

The most obvious example is the federal circuit courts’ varied applications of the Rule 23 class certification factors. While the U.S. Supreme Court has recently attempted to clarify certain class certification issues (e.g., Wal-Mart Stores Inc. v. Dukes[11], Comcast Corp. v. Behrend[12], and Halliburton Co. v. Erica P. John Fund Inc.[13]), these decisions have not resolved all of the varying circuit court interpretations, as not all circuits read these decisions in the same way.[14] Particularly post-Comcast, expert issues can be incredibly significant in class actions, and circuits vary on the rigor with which Daubert is applied at the class certification stage. For example, a more rigorous application of Daubert could inhibit plaintiffs’ ability to establish a sufficient classwide damages model.[15] While less useful in an automotive class action, the Third Circuit has breathed life into the ascertainability requirement in Carrera v. Bayer Corp.[16], denying class certification on the grounds that the plaintiffs could not present a workable method for identifying class members. Parties should carefully examine the class certification decisions of the circuits and judges under consideration for the MDL, as even subtle nuances in how Rule 23 is applied can make a significant difference.[17]

In addition to the application of Rule 23, parties should consider other significant issues that will be determined by the law of the MDL forum. For example, Article III’s injury-in-fact requirement is often raised by defendants in automotive class actions where the vehicles of the named plaintiff and the vast majority of the class have not manifested the alleged defect. Parties should consider whether the circuit law would support or foreclose an argument that only plaintiffs whose vehicles have manifested the alleged defect have standing to assert at least some of the claims.[18] More importantly, such an individualized issue within the class may create a major hurdle for class certification in some circuits, but not others.

Circuit courts also differ on the degree with which they apply the doctrine of prudential mootness — a potentially significant issue when an automaker has issued voluntary vehicle recalls. In Winzler v. Toyota Motor Sales U.S.A. Inc.[19], the Tenth Circuit granted Toyota’s motion to dismiss because Toyota had issued a voluntary recall to address an engine-stalling issue in certain vehicles. The court concluded that the nationwide recall, overseen by the National Highway Traffic Safety Administration (NHTSA) would provide the exact relief that the plaintiff sought, rendering her claims moot.[20]

In addition, the circuits may differ on their interpretation of relevant substantive federal law. In cases involving potential arguments for enforcing arbitration clauses with class waivers, there may be important distinctions in the interpretation of preemptive federal law (e.g., Federal Arbitration Act). In automotive class actions, important distinctions in interpretations of the National Traffic and Motor Vehicle Safety Act and the NHTSA regulations may be significant. One example is varying circuit law on whether a request for a court-ordered nationwide recall would be preempted under the Safety Act.

For a final example, consider a distinction that is not a rule of law at all. Rather, it is the variation among the circuits of the frequency by which they accept Fed. R. Civ. P 23(f) discretionary appeals of decisions granting or denying class certification. Rule 23(f) appeals are of critical importance, particularly to defendants. Yet, recent studies show that some circuits grant Rule 23(f) applications at a rate below 10 percent, while other circuits grant more than 40 percent of applications.[21] While a class certification decision in an MDL proceeding is a significant ruling, these statistics indicate that the circuit in which the MDL sits will significantly impact the chances of obtaining interlocutory review.

These are just a few examples of significant issues (some, potentially outcome-determinative) in class action litigation that may vary depending on the location of the transferee court. While there are many other issues that could impact MDL strategy, the above examples illustrate why it is important for parties facing an MDL to have an early awareness of variations in law among the potential districts. Parties should identify the potential transferee districts based on the administrative factors present, and then compile a list of the relevant procedural and federal law that may vary among those courts. After conducting this analysis, a party will be able to make a more informed and strategic assessment regarding the preferred transferee districts. By making this part of the initial strategy before the JPML, a party will be in a much better position to seek MDL consolidation in a forum that not only best serves its interests in efficiency and convenience, but at the same time, gives it the best chance at ultimate success in the litigation.

[1] See, e.g., In re Hyundai & Kia Fuel Econ. Litig., 923 F. Supp. 2d 1364, 1365 (J.P.M.L. 2013); In re Ford Fusion & C-Max Fuel Econ. Litig., 949 F. Supp. 2d 1368, 1369 (J.P.M.L. 2013); In re Land Rover LR3 Tire Wear Prods. Liab. Litig., 598 F. Supp. 2d 1384, 1385 (J.P.M.L. 2009).
[2] 28 U.S.C. § 1407(a) (“Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.”).
[3] As of September 30, 2014, MDL courts have remanded less than four percent of actions to the transferor court. MDL courts have terminated 387,890 actions while remanding only 13,911. See U.S. Judicial Panel on Multidistrict Litig., Statistical Analysis of Multidistrict Litigation, available at
[4] See, e.g., In re Hyundai & Kia Fuel Econ. Litig., 923 F. Supp. 2d at 1366 (transferring actions to the Central District of California before Judge Wu because “all responding parties support centralization in this district,” it is “where defendants are based and where the majority of the actions [had] been filed,” and Judge Wu “is an experienced [MDL] judge” who “presides over numerous [constituent] actions. . . including the first-filed and most procedurally advanced” case); In re L’Oreal Wrinkle Cream Mktg. & Sales Practices Litig., 908 F. Supp. 2d 1381 (J.P.M.L. 2012) (transferring consolidated proceedings to the District of New Jersey, where the “first-filed action [was] pending,” and noting that the first action was “slightly more procedurally advanced and contain[ed] more extensive allegations regarding defendants’ conduct than the other actions”).
[5] See, e.g., In re Ford Fusion & C-Max Fuel Econ. Litig., 949 F. Supp. 2d at 1369 (ordering consolidation and transfer to the Southern District of New York because the transferee judge “presides over two actions” and the district offered a “readily accessible and convenient transferee forum”); see also Daniel A. Richards, An Analysis of the Judicial Panel on Multidistrict Litigation’s Selection of Transferee District and Judge, 78 FORDHAM L. REV. 311 (2009) (presenting a study of JPML transfer orders and summarizing 16 factors that the JPML cited as relevant in its selection of transferee district and judge).
[6] If the defendants and one or more of the plaintiffs from the constituent actions are advocating for the same district, it may be given even more consideration by the JPML.
[7] Van Dusen v. Barrack, 376 U.S. 612 (1964) (holding that the transferee court must apply the choice-of-law rules that the transferor court would have applied); Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941) (holding that choice-of-law rules are substantive rules under the Erie doctrine).
[8] See, e.g., In re Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 911 (8th Cir. 2004) (“When a transferee court receives a case from the MDL Panel, the transferee court applies the law of the circuit in which it is located to issues of federal law.”); Hogston v. Allis-Chalmers Corp., 672 F. Supp. 2d 705, 708 (E.D. Pa. 2009) (“With regard to matters of procedure, the Court will apply federal procedural law as interpreted by the Third Circuit, the circuit where the transferee court sits.”).
[9] See, e.g., In re Ford Fusion & C-Max Fuel Econ. Litig., 949 F. Supp. 2d at 1368 (defendant proposed transfer to the Southern District of New York, while various plaintiffs from the seven constituent class actions proposed the Central District of California, Southern District of Florida, and Northern District of Illinois).
[10] See, e.g., In re Gen. Motors Class E Stock Buyout Sec. Litig., 696 F. Supp. 1546, 1547 (J.P.M.L. 1988).
[11] 131 S. Ct. 2541 (2011).
[12] 133 S. Ct. 1426 (2013).
[13] 134 S. Ct. 2398 (2014).
[14] See, e.g., Bussey v. Macon Cnty. Greyhound Park, Inc., 562 F. App’x 782, 790 (11th Cir. 2014) (reversing an order granting class certification where the district court “failed to conduct the ‘rigorous analysis’” required by [Comcast]” and the plaintiffs “ha[d] not identified any definite method of allocating their damages”); In re Whirlpool Corp. Front-Loading Washer Prod. Liab. Litig., 722 F.3d 838, 860 (6th Cir. 2013) (concluding Comcast has only “limited application” to a bifurcated case at the liability stage); Halvorson v. Auto-Owners Ins. Co., 718 F.3d 773, 779 (8th Cir. 2013) (applying Comcast and concluding that individual damages issues overwhelmed issues common to the class, making certification inappropriate); Butler v. Sears, Roebuck and Co., 727 F.3d 796 (7th Cir. 2013) (concluding that common issue of liability was sufficient to certify class even if damages to class members must be determined by individual hearings).
[15] See, e.g., In re Rail Freight Fuel Surcharge Antitrust Litig., 725 F.3d 244, 252-55 (D.C. Cir. 2013) (vacating class certification where district court ignored a critical flaw in the plaintiffs’ statistical models that went to whether there was common proof of classwide injury).
[16] 727 F.3d 300, 306 (3d Cir. 2013).
[17] Some commentators and a few courts have suggested that MDL courts should apply the transferor court’s law for certain federal issues such as class certification when it would impact the substantive outcome, reasoning that general principles of comity require deference in light of 28 U.S.C. § 1407(a)’s remand requirement. See, e.g., Austin V. Schwing, Comity versus Unitary Law: A Clash of Principles in Choice-of-Law Analysis for Class Certification Proceedings in Multidistrict Litigation, 33 SEATTLE U. L. REV. 361, 370-75 (2010).
[18] See, e.g., Cole v. Gen. Motors Corp., 484 F.3d 717, 722 (5th Cir. 2007) (concluding that plaintiffs had alleged injury-in-fact sufficient to confer standing despite the fact that their vehicles had not experienced improper airbag deployment); In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Practices, & Prods. Liab. Litig., 754 F. Supp. 2d 1145, 1161 (C.D. Cal. 2010) (holding that allegations of economic loss were sufficient to plead Article III standing even though their vehicles had not experienced any unintended acceleration event); Chan v. Daimler AG, No. 2:11-cv-5391 (D.N.J. Nov. 9, 2012) (Dkt. No. 71) (dismissing warranty claims for lack of standing where no defect manifested during lifetime of warranty); Whitson v. Bumbo, No. 3:07-cv-5597 (N.D. Cal. Apr. 16, 2009) (Dkt. No. 92) (dismissing for lack of standing where plaintiff failed to allege that product manifested defect or that substitute product was necessary). See also Briehl v. Gen. Motors Corp., 172 F.3d 623, 628 (8th Cir.1999) (“It is well-established that purchasers of an alleged defective product have no legally cognizable claim where the alleged defect has not manifested itself in the product they own.”); In re Bridgestone/Firestone, Inc., 288 F.3d 1012, 1016 (7th Cir. 2002) (opining that compensation for both manifest defects as well as economic loss would result in economically inefficient overcompensation).
[19] 681 F.3d 1208 (10th Cir. 2012).
[20] Winzler, 681 F.3d at 1211; see also Cheng v. BMW of N. Am., LLC, No. 2:12-cv-09262 (C.D. Cal. July 26, 2013) (Dkt. No. 42) (granting BMW’s motion to dismiss pursuant to the doctrine of prudential mootness in a case involving alleged defects causing vehicles to “roll away” because BMW issued a voluntary recall, offered a full repair or replacement remedy, and subjected itself to continuing oversight by NHTSA). See also Contreras v. Toyota Motor Sales, U.S.A., Inc., 484 F. App’x 116, 118-119 (9th Cir. 2012) (“When Toyota made the repair available, free of charge, in both recall and non-recall states, Toyota effectively eliminated any distinction between the plaintiffs and vehicle owners in recall states. Plaintiffs do not allege that Toyota's repair was ineffective. Therefore, plaintiffs cannot establish injury-in-fact with regard to Toyota's response to the defect, and they lack standing.”).
[21] U.S. Chamber of Commerce Institute for Legal Reform, A Roadmap for Reform: Lessons from Eight Years of the Class Action Fairness Act 13-15 (Oct. 2013).

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