[Procedures for the JPML deliberations on creating MDLs, notice, and filing of transfer orders] (d) [Composition of JPML] (e) [Restrictions on appealability of JPML orders] (f) The panel may prescribe rules for the conduct of its business not inconsistent with Acts of Congress and the Federal Rules of Civil Procedure. (g) [Peculiar to antitrust] (h) [Peculiar to antitrust] 28 U.S.C.A. §1407. That’s it.

t by State AGs, the DOJ Antitrust Division or Civil Division (seeking damages),3 and/or private plaintiffs. Once transferred, the action would proceed as an MDL, giving the parties and the courts the benefit of the efficiencies of conducting all pre-trial proceedings in a single jurisdiction, which is not only convenient for the parties and the witnesses, but establishes a Judge with universal knowledge of the consolidated actions, and allows for non-duplicative discovery and consistent rulings.The new law eliminates the JPML's ability to consolidate and transfer any antitrust action brought by a State AG or the DOJ (including actions seeking damages, which were formerly eligible for MDL centralization).4 In other words, the new law prevents these actions from being consolidated into an MDL, even if the interests of the parties and the court otherwise weigh in favor of MDL consolidation.What does the State Antitrust Enforcement Venue Act do? The law governing multidistrict litigation, 28 U.S.C. § 1407, empowers the JPML to consolidate and transfer US civil litigations (including antitrust litigations) that involve common questions of fact. Prior to enactment of the new law, § 1407(g) excluded from the JPML's authority "any action in which the United States is a complainant arising under the antitrust laws." It went on in the same section to define "antitrust laws" to encompass all actions arising under the Sherman and Clayton Acts, but specifically carved out actions brought under Section 4A of the Clayton Act, which is the section empowering the government to bring antitrust actions for damages (thus putting the Antitrust Division's actions for damages within the JPML's reach).The former law, 28 U.S.C. § 1407, also had a subsection (h), which explicitly provided that "the [JPML] may consolidate and transfer with or without the consent of the parties . . . any action brought under section 4C of the Clayton Act"—which is the provision of the Clayton Act empowering State Attorneys Ge

The requirement that cases in MDLs be remanded to the original venue for trial (absent agreement or other waiver) leads to practical complications that the patentees will want to take into account and develop strategies to address, such as the fact that the trial court will be applying claim constructions that it did not issue and may not agree with.A recent decision from the Multidistrict Litigation Panel in In re: Ozempic (Semaglutide) Patent Litigation1 presents an interesting use of the multidistrict litigation (“MDL”) procedure in Hatch-Waxman cases to compel a generic drug manufacturer to defend itself in a venue that would otherwise be unavailable under the restrictive, patent-specific venue rules. In this instance, the venue rules forced Novo Nordisk to sue Mylan in the Northern District of West Virginia, but Novo Nordisk succeeded in having that case transferred to the District of Delaware via the MDL provisions of 28 U.S.C. § 1407. The case highlights a potential tool for branded pharmaceutical companies to gain more control over their choice in venue when—as is often the case—there are multiple generic filers for the same reference listed drug.BackgroundThe Recent Tightening of Venue in Hatch-Waxman CasesThe Supreme Court’s 2017 decision in TC Heartland LLC v. Kraft Food Group Brands LLC,2 sparked a narrowing of potential venue choices for patentees in patent infringement cases.

After all, the plaintiffs were almost all litigation tourists with no connection whatsoever to the Golden State. Careful readers have already discerned the end to this story. Mass actions removed under CAFA may not be transferred to an MDL under the MDL statute (28 U.S.C. § 1407) unless a majority of the plaintiffs request the transfer. See 28 U.S.C. § 1332(d)(11)(C)(i).

In 2003 Judge Lourie similarly dissented in the denial of the petition for rehearing en banc in Schering Corp. v. Geneva Pharmaceuticals (see IP Update, Vol. 6, No. 8), cited by the majority that held inherent anticipation requires enabling disclosure but not actual performance and rejected the notion that inherent results must be appreciated in the prior art.Patents / LitigationConsolidation in Multi-Defendant Patent Infringement Cases: Or How I Learned To Live with the AIA by Paul Devinsky The U.S. Judicial Panel on Multidistrict Litigation (JPML) concluded that there is no conflict between the anti-joinder statute (§ 299) of the America Invents Act (AIA) and 28 U.S.C. § 1407, which provides for consolidated pretrial proceedings. In re Bear Creek Technologies, Inc., Case No. 2344 (JPML, May 2, 2012) (K.H. Vratil, Acting Chairman).

As a follow up to our earlier post on this case (found here), Bear Creek successfully convinced a MDL panel to grant its motion to subject the fourteen actions it filed in three districts (Virginia, Delaware, Pennsylvania) to consolidation under 28 U.S.C. § 1407. In granting the motion, the MDL rejected the defendants’ arguments that such consolidation was precluded by the America Invents Act’s limitation on joinder of multiple defendants in a single action “based solely on allegations that they each have infringed the patent or patents in suit.”

City of Fairview Heights v. Orbitz, Inc., Slip Copy, 2006 WL 6319817 (S.D. Ill., Jul 12, 2006) (NO. 05-CV-840-DRH).The Illinois District Court refused to remand the action holding that given the different standards for consolidation under 28 U.S.C. § 1407 and the subject-matter jurisdiction under 28 U.S.C. § 1332(d)(4)(A)(ii), the defendants’ inconsistent arguments against consolidation of a similar case and against remand because of pendency of a similar case did not foreclose federal jurisdiction. It also helps if you have a hovercraft.

When product liability actions involving one or more common issues of fact (e.g., an allegedly harmful product or chemical) are filed in multiple jurisdictions, they are typically consolidated for pretrial proceedings in a multidistrict litigation (MDL). 28 U.S.C. § 1407(a).In an MDL, the lawsuits are transferred from their filing courts to a single “transferee” Court (the MDL Court) chosen by the Judicial Panel on Multidistrict Litigation (JPML). The purposes of this centralization are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties, their counsel and the judiciary. For example, overarching issues of law, such as preemption admissibility of common-issue expert opinions, are often resolved by the MDL Court instead of needing to be re-litigated in several different courts. Additionally, MDL Courts can hold bellwether trials to help the parties structure a global settlement process to resolve many or all of the filed cases.When the purposes of an MDL are accomplished and the JPML determines it is time to end the consolidation, the transferee court begins the process of remanding the remaining cases back to the courts where the actions were initially filed.While federal law (28 U.S.C.

The movants, primarily restaurants, sought to transfer cases filed against more than 100 insurance companies. They argued that common factual question presented by the cases justified consolidation under 28 U.S.C. §1407. Those common factual questions included whether COVID-19 or orders closing businesses cause “physical loss or damage” to covered property, thereby triggering coverage, and whether virus exclusions preclude coverage.

IN RE: ZICAM COLD REMEDY MARKETING AND SALES PRACTICES LITIGATION, MDL No. 2096. Plaintiffs moved, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of multiple proposed class actions. By the time the Panel issued its Order, there were 40 related actions pending in 26 federal districts.Many of the pending cases were consumer fraud class actions against Matrixx Initiatives, Inc., and its subsidiaries Zicam, LLC, and Zicam Swab, LLC. Plaintiffs opposed centralization of any actions alleging personal injury claims.