Articles Posted in Multidistrict Litigation

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Judicial Panel Grants Plaintiff Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Over Objection of Common Class Action Defendants, but Transfers Class Actions to Western District of Pennsylvania

Seven class actions – two in the Northern District of Illinois, and one each in the Middle and Southern Districts of Florida, the Northern District of Georgia, the Southern District of New York and the Western District of Pennsylvania, – were filed against various Enterprise Rent-A-Car entities alleging labor law violations. In re Enterprise Rent-A-Car Wage & Hour Employment Prac. Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. June 10, 2009) [Slip Opn., at 1]. According to the allegations under the class actions, “defendants violated the Fair Labor Standards Act (FLSA) by misclassifying their assistant managers as salaried and thus not entitled to overtime.” Id. Attorneys for plaintiffs in one of the Illinois class actions filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Northern District of Illinois, where their class action was pending. Id. “With the exception of plaintiff in the Western District of Pennsylvania action, who urges that the Panel select that district as transferee district, all responding plaintiffs support selection of the Northern District of Illinois. Responding defendants Enterprise Rent-A-Car Co., Inc., and its affiliates, however, oppose centralization, and, if the Panel orders centralization over their objections, ask that the Eastern District of Missouri be selected as transferee district.” Id. The Judicial Panel granted the motion to centralize the class action lawsuits, rejecting defendants’ claims that the various class actions presented individual issues. The Panel explained:

In opposing centralization, defendants argue, inter alia, that the actions do not share factual issues, because individual Enterprise subsidiaries – unique to each state – employed the assistant branch managers and were responsible for classifying them as exempt and ensuring compliance with the FLSA. We are not persuaded by this argument, however, because the record indicates that the involvement vel non of Missouri-based Enterprise Rent-A-Car Co., Inc., in overseeing its subsidiaries and, in particular, setting policies affecting the employment of assistant managers is, in fact, an open question common to the actions in the litigation. On this and any other common issues, centralization under Section 1407 has the benefit of placing all actions in this docket before a single judge who can structure pretrial proceedings to consider all parties’ legitimate discovery needs, while ensuring that common parties and witnesses are not subjected to discovery demands that duplicate activity that has already occurred or is occurring in other actions.

Id., at 1-2. The Judicial Panel rejected the Northern District of Illinois, however, even though it enjoyed wide support, deciding instead that the Western District of Pennsylvania as the appropriate transferee court because “[t]he first-filed action is pending there, and that action is measurably more advanced than either [class action in Illinois],” id., at 2. Accordingly, the Panel transferred all class actions pending outside of Pennsylvania to that district. Id.

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Judicial Panel Grants Plaintiff Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Despite Certain Plaintiff and Defense Objections, and Transfers Actions to Southern District of Florida

Five class actions – two in California and Florida, and one in New Jersey – were filed against various defendants – including Wachovia Bank, Bank of America and Citibank – “relating to industry-wide bank posting policies and procedures” surrounding overdraft fees. In re Checking Account Overdraft Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. June 10, 2009) [Slip Opn., at 1, 2]. According to the allegations under the class actions, the various defendant banks had implemented policies and procedures “relating to the imposition of overdraft fees…on their customer’s checking accounts in a manner to maximize these fees.” Id., at 2. Plaintiffs in one of the Florida class actions filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Southern District of Florida, id., at 1. Plaintiffs in the New Jersey class action and defendants Wachovia and Bank of America supported the motion, but Bank of America argued for transfer to the Western District of North Carolina. Id. Plaintiffs in the California class actions and defendant Citibank opposed the motion and if the motion were granted argued for centralization in the Northern District of California. Id. The Judicial Panel granted the motion to centralize the class action lawsuits, explaining at page 2: “While there will be some unique questions of fact from bank-to-bank, these actions share sufficient factual questions relating to industry-wide bank posting policies and procedures to warrant centralization of all actions in one MDL docket.” The Panel also agreed that the Southern District of Florida was the appropriate transferee court “because (1) two of the involved actions before the Panel are pending there, and (2) this district has the capacity to manage this MDL proceeding.” Id., at 2. Accordingly, the Panel transferred the class actions centralized in the Southern District of Florida. Id., at 2-3.

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Over Objections of Class Action Plaintiffs, and Transfers Actions to Southern District of New York

Four class actions – one each in Kentucky, Louisiana, Massachusetts and New York – were filed against various defendants including Merrill Lynch arising out of “allegations that Merrill Lynch and/or its employees made misrepresentations or omissions in the context of the sale of auction rate securities (ARS) and manipulated the auctions for ARS in order to prevent auction failures.” In re Merrill Lynch & Co., Inc., Auction Rate Securities (ARS) Marketing Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. June 10, 2009) [Slip Opn., at 1]. According to the allegations underlying the class action lawsuits, “Merrill Lynch failed to disclose that (1) ARS were not cash alternatives similar to money market funds, and (2) the ARS sold by Merrill Lynch were only liquid because, at the time of sale, Merrill Lynch and other broker-dealers artificially supported and manipulated the market to maintain the appearance of liquidity and stability.” Id., at 1-2. Defense attorneys filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Southern District of New York; plaintiffs in the class actions pending outside of that district opposed the motion. Id., at 1. The Judicial Panel rejected the objections to pretrial coordination and granted the motion to centralize the class action lawsuits, finding that “Centralization under Section 1407 will eliminate duplicative discovery, prevent inconsistent pretrial rulings, and conserve the resources of the parties, their counsel and the judiciary.” Id. The Panel also agreed that the Southern District of New York – “where the first-filed has been pending for over a year” – was the appropriate transferee court. Id., at 2. Accordingly, the Panel ordered all class actions outside of the Southern District of New York transferred to that district, id., at 34.

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs, and Transfers Actions to Northern District of Georgia

Thirteen (13) class actions – four in California, four in the Eastern District of New York, three in Colorado and one in the Southern District of New York and the Western District of Pennsylvania – were filed against various defendants including various Oppenheimer entities. In re Oppenheimer Rochester Funds Group Securities Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. June 17, 2009) [Slip Opn., at 1]. The class actions shared a common basis: “All actions share factual questions relating to (1) the operation of municipal bond markets and their liquidity, (2) the impact of market conditions on the types of assets held in the funds, (3) the risks inherent in certain types of holdings, including tobacco bonds and inverse floaters, (4) whether these types of investments were properly disclosed prior to October 2008, and/or (5) whether the concentration of these and other allegedly risky investments was contrary to the fundamental investment objectives and representations of the Oppenheimer municipal bond funds. Although four different municipal bond funds are involved in these thirteen actions, the investment strategies and public disclosures are similar and all funds are overseen by a common investment manager and distributor/underwriter. Thus, regardless of which municipal bond fund is involved in each action, all actions can be expected to focus on a number of common defendants and/or witnesses.” Id., at 2. Defense attorneys for various Oppenheimer defendants filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Southern or Eastern District of New York, id., at 1. The responses by plaintiffs in the various class actions were all over the map – some opposed the motion, while others supported the motion but requested centralization in Colorado, California, Pennsylvania. Id. The Judicial Panel granted the motion to centralize the class action lawsuits, id., at 2. The Panel also selected the District of Colorado as the appropriate transferee court because “RBSW is headquartered in Atlanta, a significant amount of discovery is likely to take place in that district.” Id. Accordingly, the Panel transferred the Ohio class action to Georgia. Id., at 1-2.

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs, and Transfers Actions to Northern District of Georgia

Two class actions – one in Georgia and one in Ohio – were filed against various defendants including RBS Worldypay arising out of “an unauthorized intrusion into RBSW’s computer system.” In re RBS Worldpay, Inc., Customer Data Security Breach Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. June 9, 2009) [Slip Opn., at 1]. According to the allegations under the class actions, the intrusion meant that various personal information (including Social Security numbers) of more than one million holders of gift cards and payroll cards was allegedly compromised.” Id. Defense attorneys for RBS Worldpay filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Northern District of Georgia; plaintiffs in the Georgia class action supported the motion. Id. The Judicial Panel granted the motion to centralize the class action lawsuits and agreed that the Northern District of Georgia was the appropriate transferee court because “RBSW is headquartered in Atlanta, a significant amount of discovery is likely to take place in that district.” Id. Accordingly, the Panel transferred the Ohio class action to Georgia. Id., at 1-2.

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Judicial Panel Grants Plaintiffs’ Requests for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs or Common Defendants, and Transfers Actions to Eastern District of Pennsylvania

Ten (10) class actions – eight in New Jersey, one in New York and one in Pennsylvania – were filed against various defendants alleging antitrust violations; specifically, the class action complaints allege “price fixing in a claimed nationwide market for blood reagent products and seek recovery under federal antitrust law” In re Blood Reagents Antitrust Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. August 17, 2009) [Slip Opn., at 1, 2]. Twenty (20) related class actions were treated as potential tag-along cases, id., at 1 n.1. Plaintiffs’ lawyers in three of the New Jersey class actions filed two motions with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the District of New Jersey. Id., at 1. The motion for consolidation was not opposed, but the parties proposed various venues for transfer. Responding plaintiffs in other New Jersey class actions supported the motion; responding parties in Pennsylvania class actions, supported the motion but requested transfer to Pennsylvania; responding parties in Texas class actions, together with class actions pending in other states, requested transfer to Texas; still other responding parties requested transfer to Illinois or South Carolina. Id., at 1-2. Certain common defendants requested centralization in Georgia, id., at 2. The Judicial Panel granted the motion to centralize the class action lawsuits and decided on the Eastern District of Pennsylvania as the appropriate transferee court. Id.

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Opposed by New York Class Action Plaintiffs, and Transfers Class Actions to Southern District of Florida

Three class actions – two in Florida and one in New York – were filed against various defendants, including various Banco Santander entities and HSBC entities, alleging securities laws violations; specifically, the class action complaints allege that “defendants failed to perform adequate due diligence before investing money from their fund, Optimal Multiadvisors, Ltd., and some of its sub-funds with Bernard L. Madoff’s investment firm, Bernard L. Madoff Investment Securities LLC (BLMIS).” In re Optimal Strategic U.S. Equity Fund Securities Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. August 11, 2009) [Slip Opn., at 1]. Defense attorneys for Banco Santander filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Southern District of Florida; plaintiffs in the Florida class actions and attorneys for various HSBC defendants either supported or did not oppose the motion. Id. Plaintiffs in the New York class action opposed centralization, and argued alternatively for transfer to the Southern District of New York. Id. The Judicial Panel granted the motion to centralize the class action lawsuits, finding that “the nature of the due diligence that defendants conducted prior to investing fund assets in BLMIS, all actions will likely focus on a significant number of common events, defendants, and/or witnesses.” Id. The Panel also agreed that the Southern District of Florida was the appropriate transferee court because “[c]ommon defendant Banco Santander International is headquartered in that district and two actions are already pending there, including the first-filed action.” Id. Accordingly, the Judicial Panel ordered the New York class action transferred to the Southern District of Florida, id., at 1-2.

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Opposed by California Class Action Plaintiffs, and Transfers Class Actions to Southern District of New York

Ten class actions – nine in New York and one in California – were filed against various Citigroup entities alleging securities laws violations “by misleading investors about the nature of Citigroup’s investments and the company’s financial condition.” In re Citigroup Inc. Securities Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. August 7, 2009) [Slip Opn., at 1]. Specifically, the class action complaints alleged that the Citigroup defendants made “material misstatements or omissions in Citigroup’s disclosures about the company’s holdings in and exposures to subprime-related assets.” Id., at 2. Defense attorneys filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Southern District of New York; attorneys for the California class action plaintiffs opposed the motion. Id., at 1. The Judicial Panel granted the motion to centralize the class action lawsuits and agreed that the Southern District of New York was the appropriate transferee court because Citigroup is headquartered in that federal district and because nine of the ten class actions “are already pending in the Southern District of New York before one judge who is also presiding over related derivative and ERISA litigation.” Id., at 2. Accordingly, the Panel ordered the California class action transferred to the Southern District of New York, id.

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Unopposed by Class Action Plaintiffs, but Transfers Class Actions to District not Mentioned by Any of the Parties, the District of Massachusetts

Two class actions – one in Missouri and one in New York – were filed against various defendants, including Forest Laboratories and Forest Pharmaceuticals alleging that defendants “engaged in false and misleading promotion of Celexa and Lexapro for pediatric or adolescent use and sought to induce physicians and others to prescribe Celexa or Lexapro by providing them with various forms of illegal remuneration.” In re Celexa & Lexapro Marketing & Sales Prac. Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. August 19, 2009) [Slip Opn., at 1-2]. Defense attorneys filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Eastern District of New York; plaintiffs in the New York class action supported the motion, and plaintiffs in the Missouri class action ultimately did not object to transfer to the Eastern District of New York. Id., at 1. Plaintiffs in a potential tag-along class action pending in the Southern District of New York requested transfer to that district, id. The Judicial Panel granted the motion to centralize the class action lawsuits but selected the District of Massachusetts as the appropriate transferee court. Id. The Panel explained at page 2, “The two qui tam actions that apparently spawned the actions now before the Panel are pending in the District of Massachusetts. Also, centralization in this district permits the Panel to assign the litigation to an experienced judge who is not presently overseeing another multidistrict litigation docket and who has a caseload relatively favorable for this assignment.”

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Judicial Panel Grants Defense Request for Pretrial Coordination of Class Action Lawsuits Pursuant to 28 U.S.C. § 1407, Over the Objections of Class Action Plaintiffs, but Transfers Class Actions to Western District of Washington

Four class actions – two in Florida and one each in Michigan and Washington – were filed against various defendants, including Park West Galleries and Fine Art Sales, alleging “that defendants operated a fraudulent scheme to sell fake, worthless, or low-value artwork at shipboard auctions or in private sales through the use of phony appraisals and/or other sales-related documentation.” In re Park West Galleries, Inc., Marketing & Sales Prac. Litig., ___ F.Supp.2d ___ (Jud.Pan.Mult.Lit. August 11, 2008) [Slip Opn., at 1]. Defense attorneys filed a motion with the Judicial Panel for Multidistrict Litigation (MDL) requesting centralization of the class actions pursuant to 28 U.S.C. § 1407 in the Eastern District of Michigan; defense attorneys for the Holland America entities – “the only cruise line defendants” – did not oppose the motion, but the Panel noted that they were parties only in the Washington class action. Id. Plaintiffs in one of the Florida class actions and in the Washington class action opposed the motion, or requested transfer to the districts in which their respective class action was pending. Id. The Judicial Panel granted the motion to centralize the class action lawsuits but concluded that the Western District of Washington was the appropriate transferee court because “[that] action is measurably more advanced than the action pending in the Eastern District of Michigan, the forum favored by moving defendants.” Id. Accordingly, the Panel ordered the class actions outside of Washington transferred to the Western District of Washington. Id., at 1-2.

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