Shopping for Judges

Golden Gate Bridge viewStumbling into a multidistrict litigation panel hearing may be one of the stranger court events anyone could witness.  It is a form of organized and polite judge shopping for extremely large lawsuits.  The five-judge panel met in San Francisco one day last week.

To explain, the Judicial Multidistrict Litigation Panel was created to economize on the time of judges and to save parties involved from flying all over the country trying the same case over and over.  Consolidating these cases usually comes up in class action lawsuits with thousands or millions of potential plaintiffs.

For example, when lawsuits began to pour in to courts all over the country against Bextra and Celebrex for allegedly false advertising about the benefits of the pain medicine, the courts wanted to consolidate them in one spot, with one judge.  The Multidistrict Litigation Panel, or MDL, decides if the case is suitable for consolidation and which court should get it.  It wants to spread the workload among judges around the country and take into account where a defendat is located to simplify getting witnesses to court.

The Bextra/Celebrex case, combining 2,188 separate lawsuits, wound up with Judge Charles Breyer in San Francisco. 

When the five-judge MDL panel arrived in San Francisco for a day-long hearing of 23 cases it held court in the grand, ceremonial courtroom, with seats for 100, two jury boxes and a bench long enough to seat 20. 

The room filled to overflowing with 130 lawyers in expensive suits fidgeting with cellphones, shuffling papers and generally waiting their turn to argue where their cases should be assigned.  They have all scoped out what they think may be the most sympathetic jurisidiction to their position and the best potential judges.

One such case, Nutella Marketing and Sales Practices Litigation, MDL No. 2248, which alleges the Italian chocolate hazelnut spread misled consumers to think Nutella was healthful rather than candy.  One side wants the existing five lawsuits consolidated in New Jersey where three cases are already filed.  But the other side wants to stick with U.S. District Judge Marilyn Huff in San Diego, who has been shuffling her case along at a rapid clip and who had already ruled nothing justified the transfer to New Jersey.

The panel looked pretty impressed with Huff’s speed and the fact that she didn’t have another MDL case.  But New Jersey was near the company’s main office and would make evidence gathering easier.

The panel does not issue orders from the bench.  It thanked both sides and moved on to the next set lawyers.  And so it went for an entire day.

 Everything about MDL Panels here.

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