The U.S. Judicial Panel on Multidistrict Litigation appeared loath to coordinate many of the cases that came up on Thursday, including one involving record requests over the enforcement of President Donald Trump’s travel ban.
At a hearing in Los Angeles, the panel’s judges frequently asked why the lawyers couldn’t coordinate among themselves. A Justice Department lawyer hoping to coordinate 13 lawsuits brought by the American Civil Liberties Union over the travel ban got the coldest reception.
“If this becomes a big discovery brouhaha, come back and see us,” said panel chairwoman U.S. District Judge Sarah Vance of the Eastern District of Louisiana.
The panel, faced with a bloated docket of multidistrict litigation proceedings, has increasingly denied requests to coordinate MDLs.
In addition to the ACLU cases, the panel on Thursday considered cases brought over the failed Fyre Festival, class actions over the price of the EpiPen and more than 200 over heartburn medications including Nexium and Prilosec.
Here’s a quick look at the arguments and what the panel said:
In an unusual request, the Justice Department sought to coordinate lawsuits that 43 ACLU chapters brought after federal authorities failed to respond to records requests pertaining to enforcement of the ban, which limits travel into the United States for people from six predominantly Muslim countries.
“We’re concerned about conflicting rulings by different judges,” said Matthew Berns, a trial attorney in the federal programs branch of the DOJ’s Civil Division in Washington.
The panel appeared resistant to get involved in cases filed over Freedom of Information Act requests, which usually don’t involve much discovery.
“It just seems like you’re asking us to centralize the case on the merits,” Vance said. “That’s not what we do.”
But panelists also grilled ACLU attorney Thomas Burke, co-chairman of the media law practice at Davis Wright Tremaine, as to why the nonprofit didn’t just file a single case in the first place.
Burke insisted that the lawsuits are focused on getting records not from Washington, D.C., but from various field offices of the U.S. Customs and Border Protection and the U.S. Department of Homeland Security where much of the enforcement took place.
Six class actions filed in New York, California, New Jersey and Florida seek damages from the failed Fyre Festival in the Bahamas. But the panel appeared concerned that most of the defendants face default judgments.
“If you take defaults against the main defendants,” Vance asked, “why do you need an MDL?”
Rosemary Rivas, a partner at Levi & Korsinsky’s San Francisco office, noted that concert promoter William McFarland was arrested last month on wire fraud charges in New York, where she and other plaintiffs attorneys argued the cases should be coordinated. She also said that his business partner, Jeffrey Atkins, a rapper who goes by the name Ja Rule, had retained New York criminal defense attorney Stacey Richman and would be appearing in court.
Plaintiffs attorneys also insisted they were looking to sue investors.
Plaintiffs attorney Chad Levy of Levy & Levy in Sunrise, Florida, argued that the cases should go to the Southern District of Florida, which is close to where “everything really happened in this case,” he said.
“I think the argument is nothing happened in the Bahamas,” quipped panelist Charles Breyer, a judge on the Northern District of California.
Eight cases have been filed over the skyrocketing price of the EpiPen, used to treat food allergies. Most are class actions, which plaintiffs attorneys have agreed should be coordinated but disagreed over whether that should be in New Jersey, Illinois or Kansas.
In Kansas, U.S. District Judge Daniel Crabtree is overseeing the first class action. Crabtree, a 2015 appointee of President Barack Obama who hasn’t handled an MDL before, was the only new name floated to the panel at the hearing.
Kansas also got the support of EpiPen manufacturer Mylan, which initially opposed coordination. But after U.S. District Judge Freda Wolfson of the District of New Jersey refused on July 12 to transfer the Sanofi-Aventis case to Kansas, Mylan changed its tune.
“Judge Wolfson put us on a different course,” said Mylan attorney Mitchell Zamoff, a partner in the Minneapolis office of Hogan Lovells.
Competitor Sanofi-Aventis also filed an antitrust case against Mylan that it didn’t want folded into the MDL.
“Our case will be significantly bogged down by the other cases,” Sanofi-Aventis attorney Yehudah Buchweitz, a partner at Weil, Gotshal & Manges in New York, told the panel.
More than 200 lawsuits have been filed in 23 states alleging heartburn medications Nexium and Prilosec and others cause kidney failure and other injuries.
It’s the second attempt at coordinating the suits against several defendants that make so-called proton pump inhibitor drugs. On Feb. 2, the MDL panel rejected a prior attempt at coordination in large part because there were so many defendants.
“We’re back again,” Christopher Seeger, of New York’s Seeger Weiss, said on Thursday.
He insisted cases could be coordinated involving more than one defendant, noting U.S. District Judge Matthew Kennelly’s handling of a separate MDL in the Northern District of Illinois over “low testosterone,” in which Seeger is lead counsel.
Most of the plaintiffs attorneys were pushing for U.S. District Judge Claire Cecchi in New Jersey, who has issued several orders in some of the cases. Even the primary defendants—Procter & Gamble, Pfizer and AstraZeneca—supported transfer to Cecchi even though they opposed an MDL earlier this year.
“A lot of things have changed,” said AstraZeneca attorney Arthur Brown, a partner at Arnold & Porter Kaye Scholer in New York. For one thing, the prior request involved about 30 cases. “This has become an unmanageable challenge.”