Panel hearing recap

As usual, the Panel heard a great deal, but ruled as to none of it.  To the extent that there might be “highlights” of any Panel hearing, these might qualify:

MDL 2274 (CitiMortgage):  Movant/defendant CitiMortgage was hard-pressed to deny that the action pending before Judge William Young in the District of Massachusetts is relatively advanced.  The East Coast plaintiffs, who had previously suggested New York as an equal alternative to Massachusetts, seized on that and pressed Massachusetts, adding that Judge Young is willing to take the cases.  Other plaintiffs briefly pressed California courts as alternatives.

MDL 2282 (Home Depot Wage & Hour Litig.):  After Judge Heyburn disclosed his recusal, Judge Vratil presided over an argument that went strictly to whether consolidation is appropriate.  Judges Barbadoro and Damrell grilled plaintiffs’ counsel over the existence of common issues, citing a class decertification opinion holding that they are few.  Judge Vratil added that the Panel sees its role as facilitating coordinated discovery rather than avoiding inconsistent rulings (which is in fact consistent with § 1407(a)), and pressed plaintiffs’ counsel to speak to that.  Counsel for defendant Home Depot reiterated the key language in its brief, i.e., plaintiffs’ motion is a misguided attempt to revive the “remnants” of a failed case.

MDL 2284 (Imprelis): The main event proceeded with the disclosure of Judge Rendell’s recusal, ostensibly due to her father’s long-time executive position with sole defendant duPont.  The several plaintiffs who had collectively favored various Third Circuit district courts united under the banner of the “Delaware Valley Plaintiffs,” and pressed for consolidation in any one of those courts, with emphasis on the District of Delaware.  The Ohio plaintiffs used the Delaware Valley Plaintiffs’ map to argue that the Northern District of Ohio is the “center of gravity” based on the extensive damage there.  Indiana plaintiffs argued to similar effect, and a Michigan plaintiff suddenly determined that Ohio was preferable.

Counsel for Minnesota plaintiffs cited the fact that travel there entails no red-eye flights, and the Minnesota court’s high-tech courtrooms, before seeking to create new law.  As a result, we know now that Minnesota is in fact the “land of trees,” and that its state tree is particularly susceptible to Imprelis damage.  After and during a series of “state tree” asides from the bench and the bar, other counsel for the Minnesota plaintiffs suggested that, if both his clients and duPont prefer consolidation in Minnesota, there must be something to it.  Counsel for duPont cited extensive Imprelis damage claims in western states, leaving aside why duPont would not prefer the convenience of litigating in a courthouse a few city blocks from its headquarters.

Finally, counsel for the Ohio plaintiffs asked for an additional “15 seconds” after duPont was finished.  Judge Heyburn bluntly denied that request.  Within seconds after that, the courtroom substantially emptied.

MDL 2290 (Chase Mortgage Modification):  Counsel for certain plaintiffs suggested that Judge David Carter of the Central District of California will ensure that aggrieved class members are afforded prompt relief because only the case before him alleges a national class.  Counsel for certain other plaintiffs agreed, but acceded to the District of Massachusetts as well.   Defendant Chase for its part argued for Massachusetts, as the case there was filed six months before others and was most advanced.  The Panel did not speak to that, but Judge Heyburn had noted earlier in the day that the Panel typically transfers cases to the district in which the first-filed case is pending under that circumstance.

MDL 2291 (Wesson Oil Marketing & Sales Litig.):  This was a rare instance in which all counsel present agreed as to the proper disposition of the pending motion. Counsel for defendant ConAgra and for most of the plaintiffs agreed that all pending cases should be transferred to the Central District of California.  Counsel for certain plaintiffs who had belatedly filed an interested party response seeking consolidation in the District of New Jersey failed to appear at the hearing.  The Panel resisted the temptation to end the hearing in favor of lunch, considered the merits of the present parties’ arguments (ConAgra added a pitch for the District of Nebraska as an alternative)–and then ended the hearing in favor of lunch, less than two-and-a-half hours after it started.

The Panel gathers again in Savannah on December 1.  The relative proportions of Panel news and lead counsel news on imPaneled will swing towards the latter in the interim.

If at first you don’t succeed . . .

MDL 2282, In re: Home Depot U.S.A., Inc., Wage and Hour Litigation, does not encompass a battle over venue, but one over whether centralization is in fact appropriate.  Home Depot claims “[t]hese seven actions are the remnants of an unsuccessful effort to certify a nationwide federal FLSA opt-in collective action and 25 state law classes pursuant to Rule 23 in the United States District Court for the District of New Jersey.”

Plaintiffs, led by Squitieri & Fearon, seek to consolidate five actions pending in other courts with two already pending in the D.N.J., and note that “a court’s class determination and the Panel’s determination under 28 U.S.C. § 1407 are ‘entirely different.'”  That’s certainly the case, at least in the Third Circuit.  A Panel motion doesn’t entail hundreds of thousands of dollars worth of expert evidence and multiple trips to the appellate court.

  • About the blogmaster

    Bart Cohen is the principal of the Law Office of Bart D. Cohen, where he represents his clients in class actions and other complex litigation, and Winning Briefs, where he polishes, edits and drafts written work product for overextended lawyers.

    His unnatural appetites for rules and research of all kinds have made him an expert on proceedings before the Judicial Panel on Multidistrict Litigation. He feeds those appetites and chronicles the battles to land lead counsel appointments that are fought in part before the Panel on imPaneled.

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