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.

As we close out this column's seventh year, the panel heads to Austin, Texas, for its Dec. 5 hearing session. The panel — with a new chair and new members (more on that later) — skipped a November hearing date, due to Thanksgiving falling on the last Thursday of the month.

In Austin, the panel is scheduled to hear a pithy four new MDL petitions, bringing this year's total to 41 MDL petitions heard by the panel. At the September hearing session in Los Angeles, the panel considered 10 new MDL petitions. The panel granted six of those motions and denied four of those motions.

The new MDL proceedings include litigations in the typical MDL areas of antitrust, patent, product liability, and marketing and sales, as well as a data breach case. With six new MDLs, the panel's batting average now stands at .541 (20 motions granted and 17 motions denied).

The overall number of pending MDL proceedings has declined to 190,1 as compared to 195 just two months ago. The panel continues to close out older MDL dockets, terminating a total of 43 existing MDLs this year through mid-November.2 Product liability MDLs comprise more than a third of the total number of MDL proceedings.3

The 190 continuing MDL proceedings encompass 133,984 actions.4 There are still 29 MDL proceedings, which have more than 500 individual pending actions, almost all of which are from among the product liability MDLs.5

This month's column addresses a recent decision from the September hearing session reflecting a fascinating confluence of panel practice with the critical issue of personal jurisdiction. But before looking back at that panel decision, let us first explore some changes at the panel.

Welcome to the Panel (Redux)

As readers of this column may recall, the MDL statute (Title 28 of U.S. Code Section 1407) vests the chief justice of the United States with the sole authority to appoint panel members. Under the statute, U.S. Supreme Court Chief Justice John Roberts selects the seven panel members from among district and circuit court judges, although no two panel members may "be from the same circuit."

Last fall, we welcomed two new panel members, Judge Karen K. Caldwell (Eastern District of Kentucky) and Judge Nathaniel M. Gorton (District of Massachusetts). For the second year in a row, as we bid adieu to another year at the panel, we welcome two new members to this seven-member panel: Judge Matthew F. Kennelly (Northern District of Illinois) and Judge David C. Norton (District of South Carolina).

These new panel members replace panel chair Judge Sarah S. Vance (Eastern District of Louisiana) and Judge Lewis A. Kaplan (Southern District of New York) as members of the panel. We also welcome a new panel chair. This week's hearing session will be the first session under the leadership of Judge Caldwell, who replaces Judge Vance as panel chair.

Looking Back: Personal Jurisdiction and MDLs?

There are many reasons why a party may be motivated to seek MDL centralization. At the September hearing session, the panel considered a jurisprudential motive, the issue of personal jurisdiction (or lack thereof).6

Specifically, a group of plaintiffs argued that an MDL was warranted because in the absence of an MDL, plaintiffs could not sue all defendants in a single forum. By contrast, an MDL would bring all the defendants together in a single federal district.

As a brief review, there are two types of personal jurisdiction. Under general jurisdiction, a court may exercise jurisdiction over a defendant whether or not the claims against the defendant are related to the defendant's activity in its home state. In the corporate context, a corporation is generally deemed "at home" for purposes of general jurisdiction in the state(s) where it is incorporated and where it has its principal place of business. Under specific jurisdiction, a court may exercise jurisdiction over a defendant where there is a case-linked connection between the claims of the particular plaintiff and defendant's activity in the forum state.

In the proposed MDL at issue, some of the actions named different defendants who were "at home" for purposes of personal jurisdiction in different states. A group of plaintiffs argued that "due to the in personam jurisdiction issues," the actions could not be filed in the same court, and the litigation "will become even more complex if discovery was to proceed against different defendants in various federal district courts."7

The plaintiffs contended that only via Section 1407 MDL transfer could the actions proceed in a single forum to facilitate streamlined discovery. Putting aside the merits of the personal jurisdiction argument and/or whether there were other vehicles to effectuate transfer (e.g., Section 1404 transfer), the panel rejected the plaintiffs' argument, holding that "difficulty in establishing personal jurisdiction over a given defendant or defendants generally is not a pertinent factor in the Section 1407 analysis."8

The propriety of personal jurisdiction in a particular action is not the panel's concern. However, parties should not be able to utilize the MDL process as an end-run around the well-established due process considerations underpinning personal jurisdiction jurisprudence.

What will this hearing session bring to the panel? Will the panel end 2019 with its batting average over the .500 mark? Will the new year bring an uptick in MDL petitions? What creative jurisdictional arguments will parties make in support of, or in opposition to, a new MDL proceeding?

Stay tuned for our year-in-review edition of And Now A Word From The Panel, as the panel enters 2020 and heads to Tampa, Florida, for its Jan. 30 hearing session. That Florida venue is a slight detour northwest from the panel's usual January venue of Miami — a city which will be a bit preoccupied that week preparing for Super Bowl LIV!

  1. Pending MDLs by MDL Number as of November 19, 2019

  2. MDLs Terminated Between January 1, 2019 and November 19, 2019

  3. Pending MDLs by Docket Type as of November 19, 2019

  4. Pending MDLs by Actions Pending as of November 19, 2019

  5. Id.

  6. In re Air Crash Near Ellabell, Georgia, on Aug. 28, 2017, MDL No. 2917.

  7. MDL No. 2917, Doc. No. 1 (Brief in Support of Motion to Transfer and Consolidate Pursuant to 28 U.S.C. § 1407), at 7.

  8. In re Air Crash Near Ellabell, Georgia, on Aug. 28, 2017, MDL No. 2917.

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