And Now A Word From The Panel: Billing For 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 July hearing session in Los Angeles, the panel went two for five, granting only two out of the three MDL petitions it considered. With these latest decisions, the panel saw its 2017 "batting average" inch up slightly – from .391 to .393 – now having created a total of 11 new MDLs and denying 17 MDL petitions for the year.
In addition, the overall number of pending MDL proceedings currently stands at 227, down from 233 just two months ago. The panel continues to make progress in closing older MDL dockets, terminating a total of 29 existing MDLs this year through mid-September.1
As the AL East Pennant Race reaches the home stretch, the panel heads back east to Boston, backyard of the currently league-leading Red Sox, for its Sept. 28 hearing session. At that session, the panel will consider seven potential MDL dockets.
Once again, the panel considers motions involving a diverse range of industries and subject matter. As this column has emphasized time and again, this diversity illustrates the import of the MDL process to all types of industries and that the MDL world is not limited to product liability or other particular types of cases. But significantly, no matter what the issue or dispute, the principles addressed by these motions and the panel decisions have relevance to all MDL proceedings.
Two of the seven MDL motions on the docket relate to the telecommunications industry. One is an attempt to create yet a third MDL proceeding for Telephone Consumer Protection Act claims regarding "robocalls" by the named telecommunications defendant (albeit involving a different phone system). In re Enhanced Recovery Company LLC Telephone Consumer Protection Act Litig. (No. III) (MDL No. 2793).
The second proposed telecommunications MDL arises from alleged deceptive billing and other practices of a phone, video and internet provider. In re CenturyLink Residential Customer Billing Disputes Litig. (MDL No. 2795).
Before turning our attention to the "billing" MDL motion, we take a look back at the panel's July hearing session and the question we posed in our last column: Who wants to be an MDL?2
Looking Back: Who Wants to Be an MDL?
In our July column, we discussed some unusual – or perhaps more aptly described as intriguing – candidates for MDL centralization heard at the panel's July hearing session. In re American Civil Liberties Union Freedom of Information Act Requests Regarding Executive Order 13769 (MDL No. 2786); In re Fyre Festival Litig. (MDL No. 2787).3 Applying normative MDL principles, the panel declined the invitation to add those litigations to the MDL ranks.
A "Travel Ban" FOIA MDL?
In denying a motion by the U.S. Department of Homeland Security and U.S. Customs and Border Protection (CBP) to centralize federal lawsuits arising from FOIA requests related to Executive Order 13769 (Protecting the Nation from Foreign Terrorist Entry into the United States), the panel found:
- A lack of complex issues: The issues are "relatively straightforward and unlikely to entail extensive pretrial proceedings."
- Common legal issues are not dispositive: The panel further found that common issues relating to the CBP's decisions to withhold certain information under FOIA's exemptions are "legal," rather than factual, issues.
- Reducing litigation costs is insufficient: In an important point for MDL practitioners, the panel stated that the potential reduction of litigation costs by establishing an MDL proceeding "without more, does not warrant centralization, particularly, where, as here, there is little likelihood of complex pretrial proceedings."
- A right to re-petition: Despite the denial of the MDL motion, the panel acknowledged that "[i]n the unlikely event that these cases involve a significant amount of duplicative pretrial discovery, Defendants are free to file another motion for centralization."4
A Weekend Getaway MDL?
In denying an MDL arising from the allegedly fraudulent and misleading promotion of a weekend festival on the island of Great Exuma in the Bahamas, the panel held that the common factual issues did not outweigh the panel's view that "informal coordination is a practicable alternative to centralization."5
In light of the litigation involving only six actions in four districts, and with a limited number of plaintiffs counsel coupled with a limited number of common defendants, an MDL proceeding was not warranted.
This decision illustrates that Section 1407's requirement of "one or more common question of fact" is necessary but not sufficient for creation of an MDL proceeding.
Looking Forward: Billing for an MDL?
Turning back to the upcoming hearing session, the panel will consider an MDL motion arising from a series of putative class actions alleging that a telecommunications provider engaged in practices or policies to misrepresent its services and charge undisclosed or higher prices on customer bills. In re CenturyLink Residential Customer Billing Disputes Litig. (MDL No. 2795).
At the time of the filing of the MDL motion, there were nine putative class actions filed by phone, video and/or internet customers of the defendant. The cases involved allegations of incorrect prices, hidden fees, incorrect billing dates and unordered phone charges as well as poor quality.
Significantly, the source for these allegations was an employee whistleblower lawsuit contending that the defendant had a nationwide "practice" or "culture" to overbill customers.
Although most plaintiffs agree that MDL centralization is appropriate, several plaintiffs oppose centralization primarily on the ground that there are various legal differences among the various actions.
As the panel has admonished time and again (and as this column has noted), the key to MDL centralization under Section 1407 is the presence of one or more "common questions of fact." Differences relating to state law, including the presence of varying state wide classes, remedies, state consumer protection statutes and even an argument that actions may be subject to motions to compel arbitration are simply irrelevant to the MDL calculus.
What MDL petitions will the panel face next? What industries will confront an MDL petition? Will the panel raise its "batting average" for the year? Stay tuned for our next edition of "And Now A Word From The Panel," as the panel heads to the nation's "heartland" for its final hearing session of 2017, scheduled for Nov. 30 in St. Louis, Missouri, a somewhat rare November (rather than early December) panel hearing.