And Now A Word From The Panel: Who Wants To Be An MDL?
Welcome to the latest installment of "And Now A Word From The Panel," a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country.
At its May hearing session in San Antonio, Texas, the panel went two for six, denying four out of the six MDL petitions it considered. With these latest decisions, the panel saw its 2017 "batting average" slip below .400 — from .412 to .391 — now having created a total of nine new MDLs and denying 14 MDL petitions for the year.
In addition, the overall number of pending MDL proceedings currently stands at 233, down from 234 just two months ago. The panel continues to make progress in closing older MDL dockets, terminating a total of 20 existing MDLs this year through mid-July.1
As the panel heads west for an atypical summer destination of Los Angeles, California, for its July 27 hearing session, the panel will consider a relatively small number of potential MDL dockets. At this time, the panel will hear only five motions, with a sixth motion originally appearing on the panel's docket becoming moot. What is, however, intriguing about the lineup for this month's hearing session is the diversity of subject matter presented by motions filed with the panel.
As readers of this column are aware, the MDL world is not the exclusive province of a single industry or type of case. MDL petitions have covered a wide range of subjects and events, including an outbreak of the hantavirus at Yosemite National Park2 and numerous electronic data breaches,3 well beyond the purview of product liability and sales practices-related MDLs, which currently comprise 104 MDLs (or approximately 45 percent) of the currently pending MDL proceedings.4
Looking Forward: Who Wants to Be an MDL?
In recognition of the broad reach of the MDL process, this month's column presents the somewhat unlikely list of those seeking MDL centralization.
As shown below, requests to create an MDL do not fit a single mold; they can involve headline news, social and political issues of the day or exotic vacations. They can even trigger forensic research from the National Archives as to the status of cases filed (and dismissed) decades ago.
Travel Ban (FOIA) MDL?
Evidencing that no issue is immune from the MDL world, the panel is scheduled to consider a request to centralize federal lawsuits arising from Freedom of Information Act requests related to Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States). In re American Civil Liberties Union Freedom of Information Act (FOIA) Requests Regarding Executive Order 13769 (MDL No. 2786).
Following the original January 2017 executive order, the national American Civil Liberties Union organization and various ACLU local affiliates submitted separate FOIA requests seeking records relating to the implementation and enforcement of the executive order. The national ACLU (and its D.C. affiliates) sent the request to the national FOIA officer of the U.S. Customs and Border Protection, a component of the U.S. Department of Homeland Security. Various ACLU affiliates sent FOIA requests addressed to the CBP's national FOIA officer as well as to local CBP field offices.
The affiliates requested information regarding implementation at "Local International Airports" (as that term is defined in the FOIA requests) and specifically disclaimed any request for documents held in D.C.
This unusual MDL battle is intriguing. When the statutory deadline for a response to the FOIA requests had passed with no response, various ACLU affiliates began to file suits in their local jurisdictions. Facing 13 separate lawsuits in as many federal judicial districts, the CBP and DHS filed an MDL motion seeking centralization of the lawsuits. The ACLU affiliates oppose MDL centralization.5
In essence, the dispute as to whether an MDL is warranted focuses on whether the FOIA requests should be viewed as separate, independent local matters or whether the panel should find that at least one common question of fact among the various lawsuits warrants MDL centralization under the MDL statute, 28 U.S.C.§ 1407.
Moreover, there is panel precedent from more than two decades ago establishing MDL proceedings for multiple FOIA requests6, but the parties dispute whether the serving of FOIA requests on different local offices with an explicit disclaimer that the ACLU affiliates seek documents located at the CBP's national office in D.C. makes this set of cases different.
The resolution by the panel may ultimately turn on whether the panel thinks alternatives to creation of an MDL are feasible and practicable — focusing on overlapping counsel and the availability of informal coordination without the need to add to the ranks of MDL proceedings.
A Weekend Getaway MDL?
Turning to a different type of MDL petition, another group of litigants seeks MDL centralization for actions arising from the allegedly fraudulent and misleading promotion of a weekend festival on the island of Great Exuma in the Bahamas. In re Fyre Festival (MDL No. 2787).
Plaintiffs allege that the organizers advertised ticket packages for "an all-inclusive weekend with 'top notch food, luxurious lodging, and hot entertainment in a stunning locale,'" with ticket prices for the event ranging from $1,200 to $12,000 per person. It is further alleged that the festival was to be replete with "24-hour security detail, a team of professional medical providers, and the availability of amenities such as lounges and cabanas, communal bathrooms with showers, changing stations, a culinary program with special food concepts and premium bottle service."
Plaintiffs allege that the festival "fell substantially below the advertised expectations," with musical acts cancelled before the festival, few restrooms and no security or medical staff.7
The MDL petition embodies six actions pending in a total of four different judicial districts. Although arguably much more exotic than the Executive Order FOIA request MDL petition, this festival MDL motion, which is supported by most of the parties, fits into what some would consider a more traditional mold.
The panel will consider whether the actions present one or more common questions of fact (which they almost certainly do) and whether the relatively few actions in a limited number of jurisdictions can effectively be coordinated, or transferred through alternative means such as via Section 1404, without the need for an MDL proceeding. And of course, there is also the exciting question of MDL venue.
A Civil Rights MDL?
An MDL petition originally docketed for the July hearing session related to another executive order, albeit one issued many decades ago relating to non-discrimination by government contractors. In re Construction Trades Alternative Employment Practices Litigation (MDL No. 2790).
As the petition involved only two actions and one of the actions was subsequently dismissed, the petition became moot as the litigation lost its multidistrict character. Although this petition will no longer be considered at the panel's hearing, it nevertheless illustrates how litigants may try to use the MDL process to centralize cases regarding virtually any subject matter.
In this instance, plaintiffs had filed a class action in the Eastern District of New York challenging the conduct of various agencies for failure to comply with paid on-the-job apprentice training and employment in projects in the greater New York City area, as violating the Civil Rights Act of 1964 and Executive Order 11246 (Equal Employment Opportunity).
Plaintiffs identified an action filed in 1973 — more than four decades ago — in the Southern District of New York alleging similar violations; thus, they sought to use Section 1407 as a means to centralize the two actions. They also appear to have used the MDL process to seek to reopen the earlier filed action, requiring retrieval of the docket for that case from the National Archives.8
After reviewing a 1977 transcript, the court in the Southern District of New York concluded that the action had been dismissed without prejudice at that time as to "such elements which had not been disposed of otherwise to date."9 Thus, the MDL petition became moot because only a single action remained.
What interesting or unusual MDL petitions will the panel face next? Will the panel add to the breadth and scope of MDL proceedings? Stay tuned for our next edition of "And Now A Word From The Panel," as the panel heads back east for its next hearing session on Sept. 28 in "Beantown" — Boston, Massachusetts.
Alan E. Rothman is counsel in the New York office of Arnold & Porter Kaye Scholer LLP, with a focus on product liability and complex litigation. He currently serves as a member of the firm's ethics and practice committee. For more than a decade, Rothman has counseled clients in various industries with respect to issues relating to practice and procedure before the Judicial Panel on Multidistrict Litigation, including appearing before the panel on oral argument.
For further details regarding the parties’ positions and the FOIA requests, see In re American Civil Liberties Union Freedom of Information Act (FOIA) Requests Regarding Executive Order 13769, MDL No. 2786, Doc. Nos. 1 (MDL Petition) and 47 (Response in Opposition).