Shook, Hardy & Bacon Kansas City Partner Lori McGroder and Miami Associate Iain Kennedy authored a May 30 Bloomberg BNA article, “When Coordination Isn’t Key: Why and How to Oppose MDL Centralization,” explaining why centralized proceedings in product liability litigation may not always be advantageous for defendants and providing strategies to oppose centralization.
McGroder and Kennedy note that while defendants may have favored centralization in the past for efficiency, defendants are often reversing that strategy, “recognizing that opposing centralization can present a number of benefits to achieving a quick, successful resolution.” Drawing from three recent cases, the authors highlight that “in each of these cases, successful opposition to centralization was a key driver to litigation containment.”
The authors share strategies to increase defendants’ success of defeating centralization. First, the attorneys advise defendants to consider “whether strategic early settlement of some of the potential member suits is possible,” leaving too few remaining cases to justify a formal centralization. Second, a defendant “may consider ways to demonstrate that centralized discovery is not necessary or appropriate to resolve proposed member cases,” showing that “coordinated discovery across jurisdictions is already occurring,” and no additional discovery benefits will be achieved through centralization. Third, the defendant “should be prepared to show how individual issues and facts predominate over common questions, defeating the benefits of centralization.”
McGroder and Kennedy conclude, “Choosing to oppose centralization is not appropriate for every potential MDL bid, but recent cases demonstrate that acquiescence is not always the right approach.”