May 17, 2013

Judicial Panel on Multi-District Litigation Now More Closely Scrutinizing Motions to Create MDL Proceedings, Observes Kaye Scholer’s Alan Rothman

NEW YORK—Compared to a decade, or even several years, ago, the Judicial Panel on Multidistrict Litigation (JPML) is now denying more motions to create multi-district litigation (MDL) proceedings, says Kaye Scholer’s Alan Rothman, a litigator with extensive experience advising on federal multidistrict litigation and coordinated state court proceedings, particular when it comes to  product liability cases.

“The JPML is increasingly scrutinizing MDL motions to create products liability MDL proceedings more carefully. For example, it will look to factors such as different procedural stages, the paucity of actions and the naming of different defendants, in determining whether to grant creation of an MDL—or exclude certain actions from inclusion,” Rothman says.

As to other trends he’s observing, Rothman adds, “In the last few years, while the overall number of MDLs have declined, there’s been a spike in the number of patent MDL proceedings. We are also seeing motions to create MDL proceedings involving multiple consumer class actions, with overlapping classes. Finally, over the past few months, there have a been a couple of MDL motions focused around the food industry—one of the fastest-growing areas among the plaintiffs’ bar when it comes to product liability cases.”

In 2012, the JPML created 57 MDL proceedings and denied 35 MDL motions; by contrast, only four years earlier (in 2008), the  JPML created 85 MDL proceedings and denied 15 MDL motions. 

Of the 20 motions docketed for its January and March 2013 hearings, the JPML created 12 MDLs, as broken down into the following categories:

  • Pharma/device: 5
  • Patents: 2
  • Other contaminated products (water supply): 1
  • Automobile marketing (fuel efficiency): 1
  • Privacy (Internet email security): 1
  • Home improvement (drywall): 1
  • Debt collection: 1

At the next hearing session scheduled for May 30 in Louisville, Kentucky, the JPML is slated to consider motions to create MDL proceeding with respect to the following categories of cases:

  • Pharma/device: 3
  • Food: 3
  • Automobile marketing (fuel efficiency): 1
  • Cosmetics:  1
  • Antitrust: 1
  • Privacy: 1
  • Home improvement (foam insulation): 1
  • Financial (ratings): 1
  • Banking (debit card fees): 1

Alan Rothman is the Coordinating Attorney for Kaye Scholer's Product Liability Group and a member of the firm’s Life Sciences Group. He has appeared and argued before numerous federal and state courts as well as the Judicial Panel on Multidistrict Litigation and pioneered in the area of removal of actions from state to federal court, including, among other issues, the removal of actions naming local company employees, sales representatives, pharmacies and health care providers. Additionally, he has counseled clients in various industries with respect to numerous aspects of the practice and procedure of MDL proceedings, from the initial motion to consolidate cases in an MDL to the conclusion of such proceedings. Alan has lectured and written a number of articles with respect to these and other areas. Currently, he is the author of the Law360 column, “And Now a Word from the Panel . . ,” a bi-monthly series that addresses issues confronting the MDL Panel, as well as MDL Panel trivia and tidbits (his most recent articles can be found here and here).

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