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Judicial Panel on Multidistrict Litigation Hears Volkswagen Transfer Argument


This morning the judges sitting as the Judicial Panel on Multidistrict Litigation (JPML) heard arguments from dozens of plaintiff attorneys and two lawyers representing Volkswagen about where to transfer the VW emission defeat device litigation. In a day that started out favoring transfer to courts in Virginia, New Jersey and California, the momentum seemed to shift decidedly to the Eastern District of Michigan’s Judge Gerald Rosen.

Volkswagen, in a somewhat surprising move, changed its tune and advocated exclusively for transfer to the Eastern District of Michigan. Judge Rosen is perhaps best known for the mediation role he played in resolving the massive Detroit bankruptcy case. Volkswagen had previously preferred the Eastern District of Virginia, with Judge Rosen’s court the company’s back up. However, in the 11th hour the United States filed a motion supporting venue in the Eastern District of Michigan and that apparently was enough to persuade VW to do likewise.

In addition to Volkswagen and the government, several plaintiff attorneys representing consumers saddled with the defective vehicles also argued for the Michigan court. Seattle attorney Lynn Sarko with Keller Rohrback was the first plaintiff attorney to argue for the Eastern District of Michigan. Sarko cited the government’s preference for Detroit as well as the possibility that Volkswagen may look to a bankruptcy filing, the logic being that Judge Rosen’s bankruptcy experience may prove useful in that event. In a somewhat unusual move, Judge Rosen, sitting as a transferor judge, appointed Sarko Interim Coordinating Counsel for the cases currently pending in the Eastern District of Michigan.

Also supporting the Michigan court, at least partially, was attorney Elizabeth Cabraser with Lieff Cabraser Heimann & Bernstein in San Francisco. Cabrasser seemed to suggest that the unique combination of Detroit’s Judge Rosen, the government’s position that Detroit act as the transfreree court, as well as Volkswagen’s recent epiphany regarding same, all tipped her support to the Motor City rather than her original first choice, the Northern District of California (which remains her fallback).

Piling on in support of the Eastern District of Michigan was Volkswagen attorney Jeffrey Chase. Attorney Chase, citing the over 470 filed class actions, indicated that Judge Rosen’s efforts in jump-starting mediation, even prior to the JPML hearing, was not “getting ahead of the case” in some sort of competitive sense, but was a common sense approach agreed to by the parties.

Attorneys competing for other jurisdictions questioned whether or not such pre-JPML hearing actions in Judge Rosen’s originating court (similar appointments were made in a New Jersey courtroom) were fair play, suggesting that the JPML frowns on judges turning the proceedings in the various courts into a “scrum” as one of the other plaintiff attorneys put it. That argument did not seem to garner much support from the panel.

David Boies with Boies, Schiller & Flexner LLP, who is also the lead plaintiff attorney in the Takata airbag economic loss case, asked the JPML to consider the District of Columbia. Boies argued that the Environmental Protection Agency, headquartered in Washington, will play a key role in the case, making D.C. a natural choice. Chris Seeger with Seeger Weiss LLP, most recently known for his efforts on behalf of NFL players as co-lead counsel in the concussion litigation, lobbied for transfer to New Jersey.

Many other courts were proposed, some seemingly far flung from the action and otherwise largely irrelevant and somewhat inconvenient (Chattanooga?). At the end of the day, this lawyer left the proceedings with the following impression of the rankings:

  1. Eastern District of Michigan
  2. Northern District of California
  3. New Jersey
  4. Eastern District of Virginia
  5. District of Columbia
  6. Central District of California / Southern District of California
  7. Eastern District of California
  8. Everyone else (14 also-rans)


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  1. up arrow

    It is interesting to see the skirmishing for these cases by the Courts. Is it true that Federal Judges try to get these cases for their courts? And do you worry that Volkswagen will get favorable treatment if it files for bankruptcy as I understand the Detroit automakers received?

  2. Coldjensens says:
    up arrow

    Judges get nothing from such a case except for a lot of extra work and maybe some notariery (usually negative) Unless they are planning to run for some national office, no judge in their right mind would actively seek to have this nightmare case a signed to them

    • Tom Young says:
      up arrow

      Coldjensens – I disagree. A transfer by the JPML of a case like this is a vote of confidence in a judge and can be a stepping stone to the circuit court of appeals or beyond.

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