The next hearing session of the United States Judicial Panel on Multidistrict Litigation (“JPML”) is scheduled for May 28, 2020. In light of the Covid pandemic, all oral arguments are scheduled to be completed virtually by Zoom conference. Only three matters are set for oral argument to consider motions to transfer each to one to a centralized district for coordinated pretrial proceedings. Two out of the three involve marketing, sales practices and products liability issues. The remaining 2020 JPML Hearings are scheduled for: July 30 in Boston, Massachusetts; September 24 in Birmingham, Alabama; and December 3 in San Antonio, Texas. It remains to be seen when the JPML will transition back to live hearings and, if so, the restrictions under which they will do so.

Overview of March 2020 Hearing Session

The first virtual 2020 JPML hearing took place on March 26. Following the hearing, the JPML issued transfer orders centralizing cases and creating new Multidistrict Litigation (“MDL”) in three matters:

Matters Set for Oral Argument on May 28

The following matters are scheduled for oral argument during the May 28 hearing session:

  • MDL No. 2936 – In Re: Smitty’s CAM2 303 Tractor Hydraulic Fluid Marketing, Sales Practices and Products Liability Litigation
  • MDL No. 2938 – In Re: Evenflo Company, Inc., Marketing, Sales Practices and Products Liability Litigation
  • MDL No. 2939 – In Re: Family Dollar Stores, Inc., Access for Individuals with Disabilities Litigation

Notes on May’s Motions to Transfer

MDL No. 2936 – In Re: Smitty’s CAM2 303 Tractor Hydraulic Fluid Marketing, Sales Practices and Products Liability Litigation. Defendants Smitty’s Supply Inc. and CAM2 International, L.L.C.  have requested transfer of 8 class action lawsuits, each representing a consumer of a different state.  The lawsuits allege defendants negligently designed, manufactured, and sold their 303 Tractor Hydraulic Oil. The lawsuits additionally contend defendants engaged in deceptive and misleading marketing and labeling of by representing the product met certain manufacturer specifications and provided certain anti-wear and protective benefits when it allegedly did not meet the stated specifications or provide the stated benefits. Plaintiffs filed suit against manufacturers and retailers, asserting claims of negligence, breach of warranties, fraudulent and negligent misrepresentation, and consumer protection law violations. Smitty’s Supply Inc. and CAM2 International, L.L.C.’s request transfer to the Eastern District of Louisiana. Retailer defendant Tractor Supply Company joined in the request for consolidation but alternatively requested transfer to the Southern District of Texas – Houston Division. Plaintiffs in all 8 actions are represented by the same law firm, Horn, Aylward and Bandy, LLC. Plaintiffs brief opposes consolidation and contends counsel have informally coordinated discovery in all actions thus far, and each action represents separate and different classes of purchasers located only in the state of purchase – thus avoiding competing and/or overlapping classes.

MDL No. 2938 – In Re: Evenflo Company, Inc., Marketing, Sales Practices and Products Liability Litigation. With over two dozen class action lawsuits pending against Evenflo Company, Inc. (“Evenflo”), plaintiffs’ counsel have filed multiple Motions to Transfer. Plaintiffs have overwhelmingly agreed to the transfer request, as has Evenflo, but the transferee court is hotly disputed. The suggested transferee courts are the United States District Court for the District of Massachusetts, the Eastern District of Wisconsin, and the Southern District of Ohio. Specifically, Evenflo recommended either the Honorable Douglas R. Cole or the Honorable Michael H. Watson of the Southern District of Ohio.  Plaintiffs in the pending lawsuits allege misconduct related to the Big Kid Booster Seat; specifically, the lawsuits claim Evenflo deceptively advertised, marketed, and labeled the booster seat as safe for children under 40 pounds, as exceeding governmental testing standards, and as “side impact tested” when the company’s own testing showed a demonstrable lack of safety and significant potential for injury. The Big Kid Booster Seat is manufactured in Ohio, Evenflo’s operational office is in Ohio, and although 70 employees relocated to Massachusetts in 2018, they are mostly executives and the bulk of Evenflo’s employees are in Ohio.

MDL No. 2939 – In Re: Family Dollar Stores, Inc., Access for Individuals with Disabilities Litigation.  Family Dollar, as the defendant in multiple class action lawsuits alleging the company has inadequate operational and management policies such that it does not enforce requirements that its store aisles be wide enough to comply with Title III of the Americans with Disabilities Act, requests consolidation and coordination of the pending actions in the Northern District of Illinois, where one of the actions is currently pending.