September 29, 2015

And Now A Word From The Panel: MDL Of The Century

»  For more articles from Alan on Multidistrict Litigation, read our report "MDL and Its Impact on Your Company."Welcome to the latest edition 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.

With fall (and apple-picking season in the Northeast) upon us, the panel heads east to the “Big Apple” (New York, N.Y.) for a rare October hearing session, the second year in a row that the panel has held a hearing on the first Thursday of October rather than on the traditional last Thursday in September.

With fall’s onset, it is a particularly exciting time for sports aficionados due to the confluence and convergence of the four major U.S. sports leagues, with baseball, football, hockey and basketball in full swing. In that vein, this month’s column appropriately considers the issue of sports and MDLs. Unfortunately for MDL sports fans, there is no “Deflate-Gate MDL” — although that MDL would have been a true fantasy football proceeding for MDL sports fanatics (and would have made for a great column). Nevertheless, there is a new sports MDL proceeding and it has nothing to do with any of the four major U.S. sports leagues.

But before entering the ring on such MDL issues, we look again at the latest MDL “scorecard” for 2015. At the July session in San Francisco, the panel granted only four out of the 12 MDL motions before it, lowering its 2015 average to below .500 (granting 22 out of 47 motions or a .468 average).[1] Although our past few columns have examined what it takes not to create an MDL, we now turn to what it takes to grant an MDL motion.

Looking Back: The MDL of the Century!

At its July session, the panel considered whether to create an MDL proceeding for 10 actions (and another 32 related actions) arising from the May 2, 2015, boxing match between Emmanuel “Manny” Pacquiao and Floyd Mayweather Jr., a fight which some had billed as the “Fight of the Century” and which was broadcast on a pay-per-view basis. In re Pacquiao-Mayweather Boxing Match Pay-Per-View Litigation(MDL No. 2639). The actions, including nationwide and state putative class actions, arose from allegations that the defendants fraudulently concealed a shoulder injury suffered by Pacquiao approximately a month prior to the fight. The actions further allege that the defendants — various pay-per-view providers, the fighters and promoters — concealed and misrepresented Pacquiao’s physical condition to avoid risking the alleged $300 million in revenue generated from pay-per-view purchases of the match.

In granting the MDL motion, supported by most of the plaintiffs and defendants, the panel considered the following factors:

Number of Actions. With more than 40 pending and related actions, the panel found that “the large number of related actions” merited centralization.[2]Interestingly, the panel does not always consider “related actions” in deciding whether to create an MDL. At times, the panel will only consider the actions pending at the time of the original motion.[3]

Common Defendants. Although there are some variations as to named defendants, “[e]very complaint ... names Pacquiao and his promoter.”[4]

Class Actions. The panel observed that the “actions involve overlapping putative classes of pay-per-view purchasers” and centralization would “prevent inconsistent pretrial rulings, including with respect to class certification.”[5]

Common Complex Factual Issues. The cases are all “based on a common factual core — the alleged concealment of Pacquiao’s shoulder injury.”[6] As the panel has previously held, “the presence of different legal theories among the actions is not a bar to centralization.”[7]The panel further noted that there were disputes as to the facts, including “the nature of Pacquiao’s injury — such as when it occurred and its severity” which would “require significant factual, and possibly expert discovery.” This and whether other defendants knew of the injury “are sufficiently complex to merit centralization.”[8]

Looking Back (Again): And the Venue is ...

As is often the case when an MDL proceeding is established, more intriguing than the decision granting the MDL motion is the decision as to where the new MDL proceeding will be venued. And the venue for this new sports MDL is no exception. The Pacquiao-Mayweather fight was held in Las Vegas, Nevada, which might have made the District of Nevada a logical choice for the MDL proceeding. Indeed, plaintiffs in 13 of the related actions and a number of the defendants supported centralization in Nevada. Moreover, at the time of the MDL motion, two of the actions were pending in Nevada.

Ultimately, however, the panel selected the Central District of California as the venue for this “MDL of the Century.” The panel explained its reasoning as follows:

Number of Actions. The Central District of California had “the largest number of related actions”[9] — again looking not only at actions when the MDL motion was filed (there were two in that district at that time, as in Nevada), but considering where subsequent actions were filed.

Parties Supporting Centralization in District. The panel observed that “several plaintiffs and defendants support centralization in this district, both in the first instance and in the alternative.”[10]

Connection with the Litigation. The panel found a “significant nexus” between the Central District of California and the litigation, including, where Pacquiao allegedly: (1) trained for the fight; (2) suffered his shoulder injury; and (3) sought medical attention. Thus, it was likely that documentary evidence and witnesses would be located within that district.[11]

The MDL was assigned to a judge in the Central District of California who had the second-filed case in the district.[12]

What takeaway lessons can MDL practitioners glean from this venue selection?

  • First, do not hesitate to argue for a venue based on “related actions,” and not only those cases that were pending at the time the MDL motion was filed.[13]
  • Second, arguments in favor of a particular district can make a difference. Although the panel may certainly select a venue not suggested by any party or one in which there were no cases pending, the panel considered the fact that a number of parties, even if not the majority, had argued in favor of the Central District of California.
  • Third, do not be afraid to argue the facts, or more specifically, where the facts transpired. At least for venue purposes, that may carry the day.

What will the hearing in the “Big Apple” bring? Are there additional sports MDLs in the offing for the panel? Will the panel break .500 for the year in creating MDLs? What interesting issues will face the panel next? Stay tuned for our next edition of “And Now a Word from the Panel” as we head to the panel chairman’s home court, the Eastern District of Louisiana, for a post-Thanksgiving (early) December hearing session.

[1] This includes separately counting the grant of 4 MDL motions which were consolidated in a single MDL proceeding.

[2] In re Pacquiao-Mayweather Boxing Match Pay-Per-View Litig. (MDL No. 2639), at 2.

[3] See “And Now a Word from the Panel: The MDL Lexicon,” Law360, n.7 (May 27, 2015).

[4] In re Pacquiao-Mayweather, at 2.

[5] Id.

[6] Id.

[7] Id., citing In re Bank of New York Mellon Corp. Foreign Exch. Transactions Litig., 857 F. Supp. 2d 1371, 1372 (J.P.M.L. 2012).

[8] In re Pacquiao-Mayweather, at 2.

[9] Id.

[10] Id. at 2-3.

[11] Id. at 3.

[12] Judge Klausner, the selected MDL judge, had been assigned to the Tjaden case, filed on May 6 a day after the first-filed case in the district, the Mahoney case (not assigned to Judge Klausner).

[13] But see n.4, supra

Read the Law360 article here. 

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