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Welcome as we enter our seventh year 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.

As we begin 2019, the panel returns to its typical January destination in the state of Florida: Miami, a welcome respite from another wintry and snow-filled January in many parts of the country. Looking at the panel's docket for this month's session, the panel begins 2019 almost where it left off at the final 2018 hearing session, considering only six petitions to create new MDL proceedings.1

This is significantly off the panel's pace of 61 petitions ruled on during 2018 – an average of approximately 10 petitions per hearing session. As in past years, our opening column for this year will provide a retrospective look at panel trends and practice over the past year, and how those compare with prior years.

But before looking at the annual results, let's take a quick look at the results from the panel's November hearing session in the "Big Apple" (New York, New York). Following that final session of 2018, the panel created two new MDL proceedings and denied three MDL petitions.

2018: MDL Year in Review

Over the past few years, this column has highlighted the panel's scrutiny of an ever decreasing number of MDL petitions. Although this past year saw continued scrutiny of new petitions by the panel, 2018 represented a reversal in the decline of new MDL petitions. As noted above, the panel ruled on 61 petitions during 2018, a significant increase from the 40 petitions ruled on by the panel during 2017.

The panel's "batting average" remained remarkably consistent with that of the past few years. In 2018, the panel batted .459 – creating 28 new MDL proceedings while denying 33 MDL petitions – a slight decrease over its 2017 batting average of .475 (creating 19 MDLs and denying 21 MDL petitions).2

Once again, the panel continued its "clean-up" efforts, terminating 45 MDL proceedings.3 At the end of 2018, there were 207 pending MDL proceedings.4

2018: By the Numbers

The chart below compares the panel's 2018 "stats" with those from 2017:

CATEGORY 2018 2017
# of MDLs Created 28 19
# of MDL Motions Denied 33 21
MDLs Created as Percentage of Total # of MDLs Created/Motions Denied 45.9 percent 47.5 percent
# of Terminated MDLs 45 43
# of New Product Liability MDLs 8 9
# of New Marketing & Sales MDLs 2 4
# of New Antitrust MDLs 7 3
# of New Data Breach/Privacy MDLs 2 2
# of New Securities MDLs 0 0
# of New Intellectual Property/Patent MDLs 4 0
Total # of MDLs Pending at Year-End 207 221

2018: Trendlines

In addition to the growth in the number of new MDL petitions ruled on by the panel (61), a level not seen since 2015, there are several takeaways from the 2018 statistics:

  • The panel continued to create a significant number of product liability MDLs (8), nearly 30 percent of all new MDL proceedings.

    • Product liability MDLs continue to represent approximately a third of the total number of MDL proceedings pending at year end (68 of the 207 MDLs).5
  • For the second year in a row, the panel created no new securities MDLs.
  • But 2018 saw a substantial increase in the number of new antitrust MDLs (7 in 2018 vs. 4 in 2017) and in intellectual property/patent MDLs (4 in 2018 vs. 0 in 2017).

2018: MDL Venues

As we do on an annual basis, this column explores the panel's 2018 selection of MDL venues. And as in past years, the venue choices are relatively evenly distributed across the regions in this country. But as in prior years, certain states continue to dominate, including California, Pennsylvania, Illinois and New York. In 2018, California led the pack with six new MDL proceedings.

The new 2018 MDLs are centralized in 14 states, embodying 18 judicial districts. Out of the 28 MDL proceedings that were created in 2018:

  • 29 percent (8) are venued in the Northeast (New York, Pennsylvania).6
  • 29 percent (8) are venued in the West (California, New Mexico, Oregon).
  • 21 percent (6) are venued in the South (Florida, Kentucky, South Carolina, Texas, Virginia).
  • 21 percent (6) are venued in the Midwest (Illinois, Michigan, Missouri, Ohio).

2018: A Word About MDL Growth

On the one hand, 2018 was a year of contraction, with a continuing downward trend in the overall number of MDL proceedings. But this decrease belies an overarching storyline of growth in MDL proceedings.

The 207 MDL proceedings pending at year's end embody approximately 150,000 individual actions.7 In fact, there are 25 MDL proceedings with more than 1,000 pending individual actions.8 Even more dramatic is that the eight new product liability MDL proceedings established in 2018 now comprise a total of more than 2,000 individual actions.9 We will continue to monitor this trend in MDL practice.

What lies ahead in 2019 for the panel? Will the pace of new MDL petitions pick up in the months ahead? Will the overall number of MDLs fall below 200? Which subject areas will see an increase in MDL activity? Will the number of actions in a particular litigation continue to burgeon upon creation of an MDL?

Stay tuned for our March edition of And Now a Word from the Panel, as the panel heads to its home base of the nation's capital for its March 28 hearing session, which is also opening day for the Washington Nationals as they host the New York Mets that afternoon (weather permitting, of course)!

  1. United States Judicial Panel on Multidistrict Litigation, Notice of Hearing Session (FiledDec.13,2018); First Amendment to the Hearing Session Order and Attached Schedule Filed December 13, 2018 (adding a sixth petition to be considered).

  2. United States Judicial Panel on Multidistrict Litigation, Calendar Year Statistics – January through December 2018.

  3. United States Judicial Panel on Multidistrict Litigation, Recently Terminated MDLs (January 1, 2018 Through December 15, 2018 (no additional MDL proceedings were terminated in December after that Dec. 15 report was issued).

  4. United States Judicial Panel on Multidistrict Litigation, MDL Statistics Report - Distribution of Pending MDL Dockets by Actions Pending (Dec. 17, 2018).

  5. United States Judicial Panel on Multidistrict Litigation, Calendar Year Statistics – January through December 2018.

  6. The regions are based on those used for purposes of the U.S. census.

  7. United States Judicial Panel on Multidistrict Litigation, MDL Statistics Report – Distribution of Pending MDL Dockets by Actions Pending (Jan. 15, 2019).

  8. Id.

  9. United States Judicial Panel on Multidistrict Litigation, MDL Statistics Report – Docket Summary Listing (Jan.15,2019); MDL Statistics Report - Distribution of Pending MDL Dockets by Actions Pending (Jan. 15, 2019).

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