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Monday, February 17, 2020

Herndon: Parties want litigation resolved at MDL stage

By Amanda Robert | Mar 26, 2013


EAST ST. LOUIS, Ill. (Legal Newsline) - For Chief Judge David R. Herndon, nothing is ever set in stone, especially in multidistrict litigation.

He refers to the Yasmin and Yaz Marketing, Sales Practices and Products Liability Litigation, a MDL he oversees in the U.S. District Court for the Southern District of Illinois that once involved more than 10,000 cases. As he prepared to go to a bellwether trial to determine future trends in the litigation, he switched to mediation to instead help settle those cases. The docket now includes 9,566 cases.

"Whether you're dealing with class action or litigation that involves hundreds or thousands of individual cases, the point is that it's in the best interest of the entire nation community and both sides of the litigation," Herndon said. "Every MDL judge is constantly looking for a better way to do something."

MDL refers to a civil procedure used to handle pretrial proceedings for similar cases that are filed in separate federal courts. According to the U.S. Judicial Panel on Multidistrict Litigation, a group of seven appointed federal judges that decides when to consolidate these cases and who will oversee them, there were 67, 502 pending cases in 56 federal district courts as of March 5, 2013.

Herndon explains that when the panel considers a MDL petition, it seeks judges who already handle some of the involved cases. He was considered for the Yaz MDL, since at the time, he had more than half of the cases filed around the country. He also had some early cases in the Pradaxa Products Liability Litigation, another MDL with 260 pending actions that he oversees.

He adds that the JPML evaluates judges' approaches to handling cases. When some judges see a petition to consolidate their cases into a MDL, they may stay those cases. Other judges continue to move forward.

"I don't sit back and let my cases languish," Herndon said. "Particularly after handling MDL cases, I know that a MDL judge appreciates when other judges go ahead and continue to handle motions."

Kathleen Taylor Sooy, the national chair of Crowell & Moring's class action litigation practice, represented defendants in more than 10 MDLs. The recent Blue Cross Blue Shield Antitrust Litigation in the U.S. District Court for the Northern District of Alabama includes 26 pending cases.

Sooy finds the strategy behind seeking a MDL most interesting. When she sees cases appear in New York, then California or Texas, she considers whether the court and her clients would benefit from centralizing them.

She first looks at the number of cases, even though she admits there is no magic number. She also factors in the number of jurisdictions. If she faces five cases that were brought in nearby jurisdictions, she could transfer them rather than request a MDL.

"You have to watch as the lawsuits develop and come up with a strategy for whether you think it's the right group of cases and the right situation where you would want to go to the JPML and ask to have a MDL created," Sooy said.

Joe Whatley, an attorney with Whatley Kallas, who opposes Sooy in the Blue Cross Blue Shield Antitrust Litigation, offers a different view of the MDL process. In his experience, first with consumer class actions, and then with several antitrust MDLs, class actions rarely avoid becoming part of a MDL.

"I think there are a number of lawyers, and we're experiencing some in the Blue Cross case, that file copycat cases," Whatley said. "So it creates duplicate litigation in many districts. The only way to deal with it is to establish a MDL."

Plaintiffs' steering committees handle the large numbers of plaintiffs' lawyers and cases that come together in a MDL. Whatley, who served on several committees, explains that members are chosen in one of two ways.

"Sometimes there is complete agreement among lawyers on who will do what, and in those instances, judges generally go along with it," Whatley said. "But sometimes you'll have competing applications, and the judges decide who will be best."

Herndon handles competition between plaintiffs' lawyers by seeking applications for a certain number of spots. He sets his own criteria and terms, like the option to reappoint members on an annual basis. He reviews resumes and enters a court order to announce the committee.

"The people that are involved, quite frankly, have no choice but to go along with the court order," Herndon said. "It's built into the system, and they accept it."

Herndon meets with leaders on both sides of the litigation each month. He helps them work through problems that arise in large MDLs, with the ultimate goal of resolving their cases rather than returning them to their original courts.

"That's not the stated objective of the MDL judge when they set up the system, but the lawyers, the judge, everyone, intends to resolve the litigation at the MDL stage," he said. "You can imagine what it would be like if you had 10,000 trials."

MDL judges can also move beyond resolving their federal cases and assist with parallel state court cases involving the same litigation. Sooy noticed a recent increase in MDL judges inquiring about pending state court cases. They often reach out to those courts and work to coordinate the cases.

"From the defendants' perspective, it's very good, because we're trying to keep everything running as efficiently as possible," she said. "If the judges are talking to each other and making sure schedules are coordinated, we think that's to our advantage."

Whatley agrees that everyone benefits when MDL judges move cases forward. Judge John Heyburn, who chairs the JPML and sits in the U.S. District Court for the Western District of Kentucky, once told him when they were stuck in an airport that the judge matters most in any MDL decision.

"Judge Heyburn and the other panel members, they're out there looking for judges who are really going to be capable of handling the cases," Whatley said. "Continuing down that road is one of the best things that can be done in terms of handling MDLs efficiently."

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