IN THE GAME where you look at a group of seemingly disparate things and try to guess what connects them, you might be challenged by a group that includes Roundup weed killer, StubHub tickets, Facebook’s privacy controls, and Juul’s vaping products.
If you answered “targets of voluminous litigation” you would get half credit, but full points would be reserved for those who said “subjects of multidistrict litigation proceedings pending in federal court in San Francisco.”
There are 94 federal district courts that serve the country and its territories, and the U.S. District Court for the Northern District of California — the federal court that serves the Bay Area — has the distinction of hosting more multidistrict litigation proceedings (or MDLs) than any other district.
At the close of 2023, according to records maintained by the U.S. Courts, the district — sometimes called “NorCal” — was home to 17 MDL proceedings, more than 10 percent of all of the 168 proceedings scattered in districts around the country.
NorCal beat out the Southern District of New York (Manhattan) with 11, the Central District of California (Los Angeles) with five, and the Northern District of Illinois (Chicago) with 16.
Other national leaders were the District of New Jersey (12) and the Eastern District of Pennsylvania (8) NorCal’s lead expanded on April 11, when two new multidistrict matters were added to the district’s inventory: one involving lawsuits over a massive data breach at 23andMe Inc.; the other claims that multiple baby foods manufacturers had toxic metals in their products.
NorCal’s prominence in multidistrict litigation is not because it has the most judgeships, which are approved positions or judges.
Even though it has more than 10 percent of the MDL proceedings, NorCal had only 14, or 2 percent, of the country’s 673 authorized judgeships.
The Northern District of Illinois — the district closest to NorCal in the volume of MDL cases — had 22 authorized judgeships at the end of 2023, according to statistics maintained by the U.S. Courts.
NorCal’s prominence in multidistrict cases arises from the process used to determine if scattered cases should be managed collectively and, if so, where those cases should be transferred.
Meet the panel
An unheralded but important part of the federal court system is the Judicial Panel on Multidistrict Litigation. The panel is based in Washington, D.C., and is made up of seven active federal judges, no two of which can come from any one the 13 judicial circuits that make up the federal system. Currently, one of the seven panel members is from the 9th Circuit (the circuit in which NorCal lies) but that judge is not from NorCal.
The panel was created by Congress in 1968 and is charged with evaluating whether scattered federal cases that contain common issues of fact should be “centralized” in a single court and assigned to a single judge for consolidated pre-trial matters.
The idea was that centralizing groups of cases would avoid duplicative discovery and prevent inconsistent rulings.
Discovery is the name for the legal process where the parties in litigation exchange background information and documents, take depositions, and generally learn — discover — the information needed to try or settle the dispute. Discovery can be a time-consuming and expensive process; in large cases it is not unusual for the parties to exchange hundreds of thousands of documents and engage in frequent disputes over whether or not particular documents are “discoverable.”
The centralization process is only for pre-trial matters. Once discovery is complete and the cases are ready for trial, the cases are transferred back to their home courts and tried there. However, in practice when the cases are centralized in one court and have been handled together for months or years, it is very common for the parties to initiate settlement discussions that ultimately resolve most or all of the transferred matters.
In these situations, the judge overseeing the centralized proceeding is likely to be the federal judge to determine if the settlement meets the standard for approval. For example, in the Roundup Products Liability Litigation, U.S. District Judge Vince Chhabria considered (and rejected) several proposals to resolve the thousands of cases involving the use of glyphosate in Monsanto’s weed killer Roundup.
One goal behind centralization is to conserve resources, both of the parties and of the courts. A single MDL matter that may involve thousands of individual lawsuits that will all be handled by a single judge in the transferee court.
The MDL with the most centralized lawsuits in 2023 was the “3M Combat Arms Earplug Products Liability Litigation” in the Northern District of Florida that included 271,118 cases.
Locally, the “Juul Labs Inc. Marketing, Sales Practices, and Products Liability Litigation” had 5,102 pending cases, just eclipsing the 4,281 Roundup cases Chhabria was handling.
A million to one
The individual case numbers can be misleading when it comes to the size and scope of a centralized proceeding because class action cases that may involve hundreds of thousands or even millions of separate claims only count as a single lawsuit.
For example, in the “23andMe Inc. Customer Data Security Breach Litigation,” the panel noted that there were then 31 lawsuits involving “a 2023 data security breach that compromised the personally identifiable and genetic information of some seven million 23andMe customers.” The pending suits included overlapping nationwide and statewide class actions.
In the 23andMe situation, the panel thought centralization made sense because discovery in all the cases “will focus on how 23andMe’s system was breached, how and when the breach was identified, what security measures 23andMe had in place, and what steps were taken after the data breach was discovered.”
The panel not only determines whether a case should be centralized, but if so, in what district and before which specific judge. For the lawyers — particularly lawyers for the plaintiffs — this can be a monumental issue.
Take a small personal injury law firm in, say, Tennessee that represents a local school district that is suing Meta Inc., Google, TikTok and other platforms because students have become addicted to social media. That case if handled locally would constitute an enormous investment of lawyer time and resources, though it would carry the potential for an equally outsized return in the event of a successful outcome.
However, if the case were to be transferred to NorCal as part of the “Social Media Adolescent Addiction/Personal Injury Products Liability Litigation,” the law firm’s role would likely substantially diminish, because a steering committee of plaintiffs’ lawyers — often from firms with nationwide practices — would coordinate and allocate the work among all the lawyers involved. That would likely save the Tennessee firm’s resources but diminish an ultimate recovery for the local lawyers.
In considering consolidation, the panel’s practice is to consider the preferences of the parties even as it considers the core questions of what will best serve the purposes of the law. Key factors include where the existing cases are pending, where the plaintiffs and defendants are located, where the claims being sued upon arose, and where the evidence is likely to be located.
The gravity of the situation
Often the panel will coalesce all the factors into the observation that the “center of gravity” of the litigation is in one place or another.
The panel also considers the capacity of the transferee court and the proposed transferee judge.
For example, in the 23andMe matter, the panel noted that that U.S. District Judge Edward Chen was “an experienced transferee judge” and said that it “was confident that Judge Chen will steer this matter on an efficient and prudent course.”
The other new addition to the inventory of multidistrict proceedings in NorCal involves cases in which minors — babies — were alleged exposed to “toxic heavy metals (namely, arsenic, lead, cadmium, and mercury) from consuming defendants’ baby food products and, as a result, suffered brain injury.”
The matter was complicated by the fact that there were multiple defendants — including Beech-Nut Nutrition Company, Campbell Soup Company, Gerber Products Company, Hain Celestial Group Inc., Nurture LLC, Plum PBC, Sprout Foods Inc., and Walmart Inc. — each manufacturing their own separate products.
Plaintiffs supported centralization and most thought the Western District of Missouri would be the best location. The defendants opposed centralization but said that if it was consolidated, they wanted it to go to the Southern District of New York.
In deciding the matter, the panel noted the challenges that would be involved with multiple defendants and multiple products but thought centralization best served the statute’s goals. It then chose NorCal (neither group’s first choice) because “Five of the actions (including potential tag-along actions) are pending in this district, which provides a convenient and accessible location for this nationwide litigation.” (“Tag-along cases” are cases filed after centralization that will also bounce to the transferee court.)
The panel concluded, “We assign this litigation to the Honorable Jacqueline Scott Corley, an experienced jurist who we are confident will steer this litigation on a prudent and expeditious course.”
The order closed by giving a name to the centralized proceedings: “In re: Baby Food Products Liability Litigation.”
All of the panel’s consolidation orders include the courtesy of making the consolidation and selection of a judge subject to the consent of the transferee court.
The inventory
In addition to the two new proceedings — the 23andMe and the Baby Food Products matters — the NorCal inventory includes MDLs in a wide range of legal areas.
In antitrust, there are matters involving cathode ray tubes, hard disks, and Google’s “Play Store.” In the environmental realm, proceedings involve Volkswagen “clean diesel” engines and Chrysler’s “EcoDiesel” marketing practices.
Some of the proceedings have attracted widespread media attention, such as passenger sexual assault litigation against Uber Technologies Inc. and opioid litigation against McKinsey & Company.
In the end, a number of the cases include the familiar names of local companies like Juul, Uber, StubHub, Meta, Apple, and Google.
This surely reflects the Bay Area’s technology prowess, but perhaps also its reputation for moving fast and breaking things.
