The next hearing session of the United States Judicial Panel on Multidistrict Litigation (“JPML”) is scheduled for January 31, 2019 in Miami, Florida. Six matters are set for oral argument to consider motions to transfer each to one centralized district for coordinated pretrial proceedings. The matters set for this session include such hot topics as the massive Marriott data breach and litigation over Valsartan products contaminated with NDMA, a probable human carcinogen.
2018 JPML Year in Review
2018 saw a continuation of the pattern of decreasing motions for consolidation. Only 56 motions for centralization were filed in 2018, the lowest number in at least nine years and less than half of the 121 motions filed in 2009. However, the JPML centralized 28 of these new requests, an increase over the past two years. More actions were involved in those granted motions to centralize, the most in more than nine years. So, while requests to centralize are down, those actions that are centralized involve more lawsuits than in the recent past. MDLs continue to be dominated by products liability and antitrust cases. However, four new intellectual property MDLs were created in 2018.
Matters Set for January 2019 Oral Argument
The following matters are scheduled for oral argument during this first hearing session of the year:
• MDL No. 2875 – In Re: Valsartan N-Nitrosodimethylamine (NDMA) Contamination Products Liability Litigation
• MDL No. 2876 – In Re: Enhanced Recovery Company, LLC, Fair Debt Collection Practices Act (FDCPA) Litigation
• MDL No. 2877 – In Re: Air Crash at Durango, Mexico, on July 31, 2018
• MDL No. 2878– In Re: Ranbaxy Generic Drug Application Antitrust Litigation
• MDL No. 2879 – In Re: Marriott International, Inc., Customer Data Security Breach Litigation
• MDL No. 2880 – In Re: H&R Block Employee Antitrust Litigation
Notable Motions to Transfer
MDL No. 2875 – In Re: Valsartan N-Nitrosodimethylamine (NDMA) Contamination Products Liability Litigation. A class action plaintiff filed for transfer of at least fifteen consumer class action lawsuits and two individual lawsuits arising out of use of the generic drug Valsartan. The lawsuits were filed against manufacturers, distributors, and marketers of Valsartan – a prescription drug used primarily to treat high blood pressure and heart failure – following a July 2018 FDA announcement regarding voluntary recalls of several products containing the active ingredient valsartan after the products were found to contain NDMA, a probable human carcinogen. The moving plaintiff requested transfer to the District of New Jersey, where many of the actions are currently located and which serves to house the headquarters of at least three named defendants.
The main dispute over centralization between the parties in this case appears to be whether consumer class actions seeking solely economic damages and product liability cases requesting personal injury damages should be consolidated. Several of the defendants have opposed the transfer motion; while most defendants agree to transfer of the consumer class actions if the JPML feels it is warranted, they seek denial for the transfer of any individual personal injury claims.
MDL No. 2879 – In Re: Marriott International, Inc., Customer Data Security Breach Litigation. Data breach litigation continues trending in MDL requests for 2019; here, two motions for consolidation and transfer of litigation have been filed over the Marriott International, Inc. and Starwood Hotels & Resorts Worldwide, LLC data breach. The ten lawsuits that had been filed as of December 3, 2018 at the time of filing the motion to transfer has now grown to over 35 lawsuits. Plaintiffs allege Marriott failed to protect its customers’ private information, resulting in four years of hacker access to the reservation system of its hotel chains. Marriott disclosed the data breach on November 30, 2018, acknowledging that the names, addresses, credit card numbers, phone numbers, passport numbers, travel locations, and arrival and departure dates were exposed for up to 500 million customers. The two initial motions both requested transfer and consolidation to the District of Maryland, where Marriott headquarters are located, one alternatively suggesting the District of Massachusetts. Several briefs have subsequently been filed suggesting transfer to Florida, Connecticut, and New York.
MDL No. 2880 – In Re: H&R Block Employee Antitrust Litigation. This request to transfer and consolidate putative class action lawsuits centers around allegations that H&R Block violated the Sherman Antitrust Act by engaging in conspiracies not to compete for employees and to suppress employee wages. The lawsuits were filed on the heels of a July 2018 letter from 11 state attorneys general to eight national fast food franchisers requesting information about similar “no-poach” agreements in franchise contracts. The state attorneys general cited concern for such agreements limiting the abilities of fast-food and other low wage workers to seek raises and promotions in announcing the request for information. The current lawsuits allege that H&R Block has a policy in its own stores and require its franchisees to execute “no-poach” agreements, resulting in average wages of $10.86 per hour for H&R Block seasonal tax preparers as opposed to an industry hourly wage average of $22.67. H&R Block has opposed the transfer, citing only two jurisdictions where lawsuits have been filed as well as an arbitration agreement that it anticipates will remove at least two of the pending lawsuits.