By Adam M. Dinnell and Adam Greiner

In recent years, the use of the federal multidistrict litigation (“MDL”) process to address complex multijurisdictional disputes has increased dramatically. Nearly 60% of all civil cases filed in federal court now become part of an MDL. Currently, there are 170 federal MDLs that, together, contain over 400,000 constituent actions,[1] addressing everything from products liability to antitrust claims. In some instances, these litigations have dominated the legal news cycle. See, e.g., MDL 2885, In re: 3M Combat Arms Earplug Products Liability Litigation (224,418 pending actions); MDL 2738, In re: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products Liability Litigation (58,052 pending actions); and MDL 2804, In re: National Prescription Opiate Litigation and (4,349 pending actions). But while many parties and practitioners have become familiar with the federal MDL process, far fewer have navigated the eccentricities of its state counterparts.

Most state MDL processes were modeled generally after the federal MDL process and share a common goal: the efficient disposition of cases that possess a common factual core through the use of coordinated or consolidated proceedings. However, some state rules differ dramatically, particularly in Texas. Three major differences between federal and Texas MDL procedure stand to impact the course of MDL proceedings: (1) whether the parties are entitled to a hearing on an initial motion to transfer; (2) whether the parties are expected to inform the selection of the transferee court; and (3) the treatment of tag-along actions. Below, we provide a summary of each difference for companies who have suddenly become entangled in Texas-based MDLs.

1. In Texas MDLs, the parties are not entitled to a hearing on an initial motion to transfer.

In federal MDL practice, each initial motion to transfer (the motion seeking MDL treatment) is heard by the United States Judicial Panel on Multidistrict Litigation (“JPML”). These hearings before the Panel (and their abbreviated time allotments for oral argument) are nothing if not a unique experience. Federal Multidistrict Litigation Rule 11.1 requires that the JPML “shall not consider transfer or remand of any action pending in a federal district court when any party timely opposes such transfer or remand without first holding a hearing session for the presentation of oral argument.” Although the Rule allows the JPML to discretionarily dispense with oral argument if it would significantly aid the decision-making process, typically the JPML insists on oral argument.[2]

In contrast, the Texas Multi-District Litigation Panel (“Texas Panel”) does not customarily set a hearing on a party’s motion to consolidate and transfer cases to an MDL pretrial court. Texas Panel Rule 13 does not provide for any presumption in favor of setting a hearing, and the Texas Panel does not customarily hear oral arguments on transfer orders. Specifically, Rule 13 states that the “MDL Panel may decide any matter on written submission or after an oral hearing before one or more of its members at a time and place of its choosing.” Thus, the Texas Panel can (and usually does) decide motions to transfer on submission only. In Texas MDLs, this makes the parties’ written submissions that much more important. And in the absence of an oral hearing, the onus is on the parties’ lawyers to independently reach out to their counterparts to start building a consensus (amongst all plaintiffs or all defendants). There will be no opportunity to gather in the courtroom hallway before argument to work out these types of details.

2. In Texas MDLs, the parties do not typically inform the Panel’s selection of a transferee court.

In federal MDL practice, the parties will often make arguments to the JPML concerning what specific transferee court and judge should be selected. These arguments have been based on everything from the location of key documents to docket conditions to courts with accessible ports nearby.[3]

In contrast, the Texas Panel does not hear arguments from the parties as to which court would be a suitable transferee court for pretrial MDL proceedings. Rule 13.3 sets out the necessary elements for a motion to transfer filed with the Texas Panel. It requires that the written motion must (1) state the common questions of fact; (2) explain why transfer would be for the convenience of the parties and witnesses and would “promote the just and efficient conduct of the cases”; (3) state whether the parties agree to the motion; and (4) provide an appendix of the parties and cases, with contact information for the attorneys. Nowhere does the Rule suggest that the movant or any opposing party can, or should, identify which transferor court would best “promote the just and efficient conduct of the cases.”

In fact, in one recent case, the Texas Panel explained, “This panel routinely resists a party’s request for a specific pretrial judge.” Order of Multidistrict Litigation Panel, In re: Grape Growers Products Liability Litigation (MDL No. 23-0591), (Tex. M.D.L. Panel October 3, 2023) (citing In re Farmers Ins. Co. Hurricane Harvey Litig., No. 18-0547, 2018 Tex. LEXIS 737, at *1 (Tex. M.D.L. Panel July 27, 2018) (a party requested specific judges and the MDL rejected the request and stated: “we remind the parties that we have repeatedly stated that we disfavor requests that we appoint specific judges requested by the parties.”); In re Alcon Shareholder Litig., 387 S.W.3d 121, 125 (Tex. M.D.L. Panel 2010); In re Digitek Litig., 387 S.W.3d 115, 118 (Tex. M.D.L. Panel 2009) (“[W]e consider it improper for a motion to seek transfer to a certain court or county…. Such express requests are improper because Rule 13 is not meant to be a venue-changing or judge-selecting procedure.”); In re Petroleum Wholesale Litig., 339 S.W.3d 405, 409 (Tex. M.D.L. Panel 2009) (we disfavor the practice of parties suggesting a particular county or a particular judge, because the procedure is not supposed to facilitate forum shopping).

Thus, parties in potential Texas MDLs must cater their written submissions accordingly and focus on the other issues decided by the Panel.

3. In Texas MDLs, tag-along cases are automatically transferred when the notice of transfer is filed.

The Texas MDL rules further deviate from their federal counterparts in that “tag-along” cases (cases with factual allegations similar to those consolidated in an MDL that are not yet assigned to that MDL) are automatically deemed transferred as soon as the notice of transfer is filed in the pretrial court.

Under the federal rules, the process of transferring a tag-along case involves a Conditional Transfer Order (“CTO”) issued by the JPML. Once the JPML has been made aware of a case with similar factual allegations to those in an ongoing MDL, the JPML can issue a CTO, triggering a 15-day period within which a party can choose to oppose the transfer. If a party opposes the transfer, it then has another 15 days to file its argument in opposition.

Under Federal Multidistrict Litigation Rule 2.1, the original trial court maintains its pretrial jurisdiction over the case and its orders are unaffected by any pending CTO. Transfer is only effective once the order to transfer is filed by the JPML with the clerk of the transferee court.

In contrast, CTOs are a foreign concept in Texas MDL practice. Texas tag-along actions are not routed back through the Panel prior to transfer. Under Rule 13, once a notice of transfer is filed in both the trial court and the transferee court, the case is deemed transferred. Although a party opposing such a transfer has 30 days after service of the notice to move to remand the case, the remand decision is made by the transferor court rather than the Panel. Furthermore, the transferee court does not retain pretrial jurisdiction during this period. While the transferee court’s order on the motion to remand is appealable to the Texas Panel via a motion for rehearing, the transferee court’s orders are binding on the original trial court after remand and cannot be overturned absent an additional appeal. Parties who may wish to oppose transfer must adjust their approach accordingly.

Takeaways

Even a sophisticated party or practitioner familiar with the federal MDL process can run afoul of the intricacies of aggregate litigation practice in Texas state court. While the general contours of Texas and federal MDL practice are similar, the existing deviations can have a meaningful impact on a party’s case. With this in mind, engaging legal counsel with Texas MDL experience is important to ensuring the successful navigation of the process and, ultimately, a positive outcome.

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Adam M. Dinnell is a partner at the Houston trial firm Hicks Johnson PLLC. He has argued before the United States Judicial Panel on Multidistrict Litigation and is a veteran of multiple MDLs, including federal MDLs 1873 (In re: FEMA Trailer Formaldehyde Products Liability Litigation), 2218 (In re: Camp Lejeune, North Carolina Water Contamination Litigation), and Texas MDL 23-0591 (In re: Grape Growers Products Liability Litigation). Adam Greiner is an associate at Hicks Johnson PLLC. He has filed briefs with the Texas Panel and has appeared as counsel in Texas MDL 23-0591.

[1] Pending MDLs by Actions Pending (As of October 1, 2024), United States Judicial Panel on Multidistrict Litigation, https://jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_Pending-October-1-2024.pdf.

[2] Parties also have a duty to confer prior to oral argument, unlike in Texas.

[3] John G. Heyburn II, A View from the Panel: Part of the Solution, 82 Tul. L. Rev. 2225, 2238-39 (2008); see also In re One Apus Container Ship Incident on November 30, 2020, 607 F. Supp. 3d 1344, 1345 (U.S. Jud. Pan. Mult. Lit. 2022) (“The parties assert that the One Apus calls at ports located in or near the Southern District of New York, which will facilitate discovery.”)