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January 25, 2017

And Now a Word from the Panel: A Year of Vanishing MDLs

Law360

Welcome as we enter our fifth year of "And Now A Word From The Panel," a bimonthly column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets at venues around the country.

As has often been the case in years past, the panel returns to its traditional January destination of the state of Florida. Perhaps to avoid Pro Bowl weekend in Orlando, the panel heads a bit further south to Miami, a typical January hotspot for the panel.

As we begin a new year, this column once again takes a retrospective look at the past year before the panel. The past year was momentous for the panel, in that it created a mere 26 new MDL proceedings, a record low for this century, and a low water mark for new MDL proceedings not seen in almost a quarter of a century.

Let's examine the JPML trends over the past year and how those compare with prior years.

2016: The Year of the Vanishing MDL

Consistent with its trend over the past several years, the panel appears to continue to carefully scrutinize MDL petitions. In 2009, the panel granted more than 80 percent of the MDL motions that it considered.1 But in 2016, the panel batted just .473 — creating 26 new MDL proceedings while denying 29 MDL petitions.

Perhaps even more significantly, the panel terminated a total of 57 MDL proceedings, leaving the panel with 244 pending MDL proceedings at the end of 2016 — a 10 percent decrease from the 271 MDLs pending as of year-end 2015.

Among the terminated MDL proceedings were an MDL originally established in August 2001, as well as 15 MDL proceedings created between 2013 and 2015.2

2016: By the Numbers

The chart below compares the panel's 2016 "stats" with those from 20153:

MDLs

2016: Trendlines

There are several takeaways from these numbers:

  • New MDLs are on the decline.
  • The last time the panel created fewer than 26 new MDL proceedings was in 1993.
  • The panel continues to create a significant number of product liability and sales practices MDLs (8 and 7, respectively).
  • Electronic data breach/privacy MDLs continue to be an MDL growth area, with 4 new MDLs in that category. Last month, the panel created an MDL proceeding for cases arising from an alleged data security breach affecting at least 500 million accounts.4
  • There are relatively few new antitrust, securities and intellectual property MDLs (3, 1 and 1, respectively).

2016: MDL Venues

Looking beyond the raw numbers and at one of this column's favorite topics, we look at the panel's 2016 selection of MDL venues.

The new 2016 MDLs are once again relatively evenly dispersed throughout the country. Out of the 26 MDL proceedings that were created in 2016:

  • 31% (8) are venued in the Northeast (MA, NH, NJ, NY, PA)5
  • 27% (7) are venued in the West (AZ, CA, NM)
  • 23% (6) are venued in the South (DC, DE, FL, LA, VA)
  • 19% (5) are venued in the Midwest (IL, MI, MO, OK, WI)

A map depicting the states in which the new MDLs reside is below: 

A map where new MDLs reside

The past year saw the first MDL created in New Mexico in more than twenty years.6 And we are still awaiting the first MDL in the state of Alaska!

What lies ahead in 2017 for the panel? Will the overall number of MDLs continue to decline? Will products and sales practices MDLs buck the trend? What new issues will make their way to the panel at the next hearing session?

Stay tuned for our March edition of "And Now A Word From The Panel," as the panel heads to Phoenix, Arizona for its March hearing session.

  1. United States Judicial Panel on Multidistrict Litigation Calendar Year Statistics

  2. Recently Terminated MDLs (reflecting 56 terminated proceedings; an additional MDL proceeding was terminated in late December).

  3. Pending MDL Dockets By Type.

  4. In re Yahoo! Inc. Customer Data Security Breach Litig., MDL No. 2752 (J.P.M.L. Dec. 7, 2016); see also "And Now a Word From the Panel: A 21st Century MDL," Law360 (May 24, 2016).

  5. The regions are based on those used for purposes of the US census.

  6. Prior to 2016, the most recent MDL in New Mexico was MDL No. 1050, In re Psychiatric Hospitals Loan Financing, created in 1995 (and terminated in 1996).

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