Thursday, May 29, 2014
Plaintiffs' attorneys huddled in Chicago on Wednesday to strategize about where to ask the MDL Panel to send the GM ignition switch cases. As usual, there are several things that will influence plaintffs' attorneys' pick.
According to this morning's article in the WSJ, Elizabeth Cabraser called the litigation "a perfect storm for a class action." Maybe. But that will largely depend on which circuit and which judge hears the case, how GM's bankruptcy affects the pending claims, and whether attorneys forgo personal injury claims (they will likely be excluded in the class definition) to pursue product liability and economic injuries.
Choice of procedural law, like how to apply Rule 23, can vary. Under Chan v. Korean Airlines, Ltd. (D.C. Cir. 1989), the Van Dusen doctrine, which holds that transferee courts must apply the choice of law interpretation of the transferor circuit, may not apply to 1407 transfers. Rather, when it comes to procedural and other federal law matters, Korean Airlines suggests that transferee courts are obligated to follow their own interpretation of the relevant law. Several circuits follow this rationale including the Second, Eighth, Ninth, and Eleventh. Other circuits, including most notably, the Seventh, have held that a transferee court should use transferor court's interpretation of federal law.
According to Bloomberg, several plaintiffs' attorneys are pushing for a California venue before Judge James Selna, who is currently handling the Toyota acceleration MDL. This strategy makes sense on several fronts. The Ninth Circuit, which originally upheld (in part) the certification in Dukes v. Wal-Mart Stores, Inc., has shown a willingness to resolve aggregate cases through class actions. And given that courts in the Ninth Circuit apply their own procedural law where circuit splits are concerned, this could further help plaintiffs. Finally, Judge Selna, who certified an economic loss settlement class action in the Toyota litigation, is a logical choice.
But other plaintiffs' attorneys (and of couse GM) have other ideas about where the MDL should land. Bloomberg reports:
Other plaintiffs want the cases to be heard in Chicago, Miami or Corpus Christi,Texas, where they have sued. GM wants the cases consolidated in the federal court in Manhattan, about a mile from where a prior incarnation of the company filed for bankruptcy in 2009. Company lawyers say proximity to the bankruptcy court trumps Selna’s experience.
While the Panel considers the forum requests by the parties, it is in no way limited to those venues. There are several factors that it typically cites in favor of forum selection such as the location of discovery materials, convenience of the witnesses, location of grand jury proceedings, possibility of coordination with related state-court proceedings, where the majority of cases are located, knowledge of the transferee judge, and the willingness and motivation of a particular judge to handle an MDL docket. Of these factors, the transferee judge is by far the most important. The Panel tends to look for judges who have handled MDLs successfully in the past. And, for better or worse, "successful" means quick settlement (see here, p. 11-12 for more).
The Judicial Panel on Multidistrict Litigaiton is comprised of seven judges from around the country. Judge David Proctor is the Panel's newest edition and was added just this year to replace Judge Paul Barbadoro.
For more on the process that will--and should--unfold once a transferee judge is appointed and how those judges should go about appointing lead lawyers, see here.