Chapter § 4.06 Factors That May Weigh Against the MDL Panel Granting a Section 1407 Transfer

• Jurisdiction: United States
• Publication year: 2020

§ 4.06 Factors That May Weigh Against the MDL Panel Granting a Section 1407 Transfer

[1] Case in Advanced Stage

The stage of litigation is an important factor in the Panel’s decision to centralize actions. For instance, the MDL Panel may refuse to transfer actions when the parties have completed considerable discovery in one or more cases.⁹⁶ In one case, the Panel concluded that “the fact that discovery has been completed in one of the two actions before us, and thus that action is nearing trial, diminishes any benefits that could be gained by Section 1407 proceedings.”⁹⁷ Furthermore, “widely varying procedural postures of the actions” may “weigh against centralization.”⁹⁸ In denying a motion to transfer, the Panel explained that, “while the Hawaii action was only recently commenced, the consolidated action in California is . . . quite advanced. The presiding judge ruled on a motion to dismiss” as well as “a motion for class certification” and “recently gave preliminary approval to a partial class settlement. Discovery in the California action is essentially over, whereas it has not yet even begun in the Hawaii action.”⁹⁹

Also, proceedings may be so far advanced that transfer would be improper. For example, the Panel held that centralization would neither serve the convenience of the parties and witnesses nor further the just and efficient conduct of this litigation where “[f]our of the five actions . . . are at a significantly advanced stage. Classes have been certified in those four actions, and fact discovery has been completed (or is nearing completion) in three of them. The fifth action . . . has been stayed pending the resolution” of two of the actions.¹⁰⁰ It makes sense, given that centralization is only for pretrial purposes, that cases nearing the end of the pretrial stage, and thus approaching the trial stage, are sometimes unfit for transfer.¹⁰¹

[2] Parties Cooperating on Discovery or Successfully Coordinating Pretrial Matters

While it doesn’t happen often, parties sometime persuade the MDL Panel that the purposes of section 1407 would not be advanced—or not measurably so—by pretrial consolidation because the parties are already working well together. This was the case in In re Cable Tie Patent Litigation.¹⁰² This multidistrict litigation consisted of four actions, three pending in the Northern District of Illinois and one pending in the Eastern District of Wisconsin. The parties involved in the two Illinois actions “already demonstrated their ability and willingness voluntarily to cooperate concerning pretrial matters” and the opponents of transfer “expressed their desire to continue these cooperative efforts.”¹⁰³ Therefore, the Panel held that “suitable alternatives to Section 1407 transfer, some of which counsel...