TRANSFER PROCEEDINGS BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION. Written & Presented by: BRANDY WINGATE VOSS SMITH LAW GROUP LLLP

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1 TRANSFER PROCEEDINGS BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION Written & Presented by: BRANDY WINGATE VOSS SMITH LAW GROUP LLLP 820 E. Hackberry Ave. McAllen, Texas Co-Written by: LAURA P. HALEY SMITH LAW GROUP LLLP 820 E. Hackberry Ave. McAllen, Texas State Bar of Texas 29 TH ANNUAL ADVANCED CIVIL APPELLATE PRACTICE September 10-11, 2015 Austin CHAPTER 29

2 Brandy Wingate Voss Smith Law Group LLLP 820 E. Hackberry Ave. McAllen, TX BIOGRAPHICAL INFORMATION EDUCATION J.D., Magna Cum Laude, Baylor University School of Law B.A. in Anthropology, Texas A&M University PROFESSIONAL ACTIVITIES Partner, Smith Law Group, McAllen, Texas Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization Former Senior Staff Attorney to Justice Gina M. Benavides, Thirteenth Court of Appeals Former Briefing Attorney to Chief Justice Thomas R. Phillips, Texas Supreme Court Past member of the Texas Supreme Court Rules Advisory Committee Former Board Member, Texas Young Lawyers Association Past President, Hidalgo County Bar Association Council Member, State Bar Appellate Section Former co-editor in chief of the Appellate Advocate PUBLICATIONS & HONORS Recognized as a Texas Super Lawyer in appellate practice in the 2014 Texas Super Lawyers Edition of Texas Monthly, published by Thompson Reuters Recognized as a Rising Star in appellate practice in the 2006, 2007, 2008, 2012, 2013, and 2014 Texas Super Lawyers Rising Stars Edition of Texas Monthly, published by Thompson Reuters Stars of the Bar Award, State Bar of Texas: co-authored of a series of eight articles titled, Anatomy of an Appeal: TRAPS (Texas Rules of Appellate Procedure) for the Trial Lawyer, recognized as best substantive series in a bar association newsletter Stars of the Bar Award, State Bar of Texas: co-authored of a series of two articles titled, Review of Arbitration Awards After Hall Street, recognized as best substantive series in a bar association newsletter Brandy M. Wingate & Dan Worthington, 2009 Legislative Preview, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 21 No. 3, p. 161 (Spring 2009) Brandy M. Wingate & Robert B. Gilbreath, Review of Arbitration Awards After Hall Street Associates v. Mattel: The Supreme Court Says No to Contractual Expansion... and to Manifest Disregard of the Law?, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 20 No. 4, p. 277 (Summer 2008) Brandy M. Wingate & Tina S. Koch, Would You Swear to That? Problems With Verifying a Petition for Writ of Mandamus, The Appellate Advocate, State Bar of Texas Appellate Section Report, Vol. 19 No. 4, p. 26 (Summer 2007) Brandy M. Wingate, The Paper Trail: Rules Regarding Missing Clerk s and Reporter s Records; Texas Association of Appellate Court Attorneys Conference May 30, 2012 Austin, Texas Brandy M. Wingate, Rehearing Practice in the Courts of Appeal: They Heard You the First Time, and Other Rules of Thumb, Panel Member, State Bar of Texas Advanced Civil Appellate Practice Course, September 2-3, 2010 Brandy M. Wingate & Jeremy Gaston, Transitioning from Trial to Appeal and Post-Trial Motions, State Bar of Texas Federal Court Practice Course, May 14, 2010 & May 20, 2011 Brandy M. Wingate & V. Elizabeth Kellow, Review of Arbitration Awards After Hall Street, State Bar of Texas Advanced Civil Appellate Course, September 9-11, 2009 Brandy M. Wingate & William J. Chriss, Attorney Advertising in Texas After the 2005 Rules Changes, State Bar of Texas Advanced Civil Trial Course, July 29-31, 2009; State Bar of Texas Advanced Civil Appellate Course, September 9-11, 2009

3 Laura P. Haley Smith Law Group LLLP 820 E. Hackberry Ave. McAllen, TX BIOGRAPHICAL INFORMATION EDUCATION J.D., Magna Cum Laude, South Texas College of Law M.A. in English Literature, University of Houston B.A. in English, University of Houston PROFESSIONAL ACTIVITIES Partner, Smith Law Group, McAllen, TX. Former Sr. Corporate Litigation Counsel, Diamond Offshore Drilling, Inc. Former Briefing Attorney for Justice John S. Anderson, Fourteenth Court of Appeals, WEBCASTS & HONORS Record Retention in the Oil & Gas Services Industry: Complying with New Record-Keeping Requirements, Association of Corporate Counsel, May 2012 Thompson & Reuters, Texas Lawyer, Super Lawyer Rising Star, 2005

4 TABLE OF CONTENTS I. INTRODUCTION... 1 II. THE ADOPTION OF TEXAS MDL PRACTICE... 1 III. DECIDING WHETHER TO REQUEST A TRANSFER... 1 A. Applicability of Rule B. Substantive Requirements For Transfer Relatedness: One or more questions of common fact Convenience of the Parties and Witnesses; Promoting the Just and Efficient Conduct of the Litigation... 4 IV. PROCEDURE FOR REQUESTING A TRANSFER... 6 V. PROCEDURAL RULES GOVERNING THE MOTION, RESPONSE, AND REPLY IF A PARTY REQUESTS TRANSFER... 6 A. Form... 6 B. Filing... 8 C. Service... 8 D. Notice to the Trial Court... 8 VI. EFFECT OF MOTION TO TRANSFER ON UNDERLYING LITIGATION... 8 VII. TIMING OF THE RESPONSE TO THE MOTION AND REPLY TO THE RESPONSE VIII. HEARINGS... 9 IX. DECISION... 9 X. REVIEW OF ORDERS BY THE MDL PANEL i

5 TRANSFER PROCEEDINGS BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION I. INTRODUCTION Appellate practitioners should be familiar with the MDL transfer rules, which provide a unique opportunity to advise and assist trial lawyers in litigation strategy that can substantially affect the cost and length of litigation in large, complex cases. Motions to transfer to an MDL pretrial court must be precisely drafted due to their constrained length, and they are directed to a multidistrict litigation panel comprised of five appellate justices and administrative judges. In this paper, I will discuss the procedural requirements for motions to transfer, responses, and replies, as well as the substantive requirements for obtaining a transfer to a multidistrict litigation pretrial court. Where appropriate, I will provide insight to help you steer your trial lawyer clients in the right direction, whether seeking a transfer or attempting to avoid one. Asbestos and silica cases have specialized rules, which will not be addressed in this paper. II. THE ADOPTION OF TEXAS MDL PRACTICE In 2003, the Texas Legislature adopted sections of the Texas Government Code as part of House Bill 4 s tort reform package. TEX GOV T CODE The amendments to the government code in these sections provided a mechanism for transferring multiple cases filed in different courts, or in the same court, into a consolidated pretrial multidistrict litigation court. Id. The Texas Judicial Panel on Multidistrict Litigation was created (hereinafter the Panel ), and it consists of five members designated from time to time by the chief justice of the supreme court. Id The members of the panel must be active court of appeals justices or administrative judges. Id. The current composition of the panel includes: (1) the Honorable David Peeples, who serves as Chair of the panel; (2) the Honorable Ann McClure; (3) the Honorable Elizabeth Lang-Miers; (4) the Honorable Harvey Brown; and (5) the Honorable David Puryear. Information about the Panel and its docket is available online at the Panel s website: The MDL panel operates pursuant to rules adopted by the Texas Supreme Court in particular, Rule of Judicial Administration 13. Rule 13 was adopted in September 2003 in response to the passage of House Bill 4. TEX. R. JUDICIAL ADMIN In accordance with the legislative mandate, through Rule 13, the Texas Supreme Court promulgated procedures that (1) allow the panel to transfer related civil actions for consolidated or coordinated pretrial proceedings; (2) allow transfer of civil actions only on the panel s written finding that transfer is for the convenience of the parties and witnesses and will promote the just and efficient conduct of the actions; (3) require the remand of transferred actions to the transferor court for trial on the merits; and (4) provide for appellate review of certain or all panel orders by extraordinary writ. TEX. GOV T CODE ANN (a). While the legislature expressly allowed the Panel to prescribe additional rules for the conduct of its business not inconsistent with the law or rules adopted by the supreme court, in the 12 years since its creation, the Panel has not done so. Thus, the government code, Rule 13, and the Panel s decisions provide the framework for the following discussion. Many of the Panel s decisions are published in legal databases; however, many are not. Those that are not published can be accessed on the Panel s website through the link list of available cases : III. DECIDING WHETHER TO REQUEST A TRANSFER A. Applicability of Rule 13 The first step in determining whether to request a transfer is to determine if Rule 13 applies to your case. Rule 13 applies to (1) civil actions that involve one or more common questions of fact and that were filed in a constitutional county court, county court at law, probate court, or district court on or after September 1, 2003; and (2) civil actions filed before September 1, 2003 that involve claims for asbestos- or silica-related injuries, to the extent permitted by Chapter 90 of the Texas Civil Practice and Remedies Code. TEX. R. JUDICIAL ADMIN. 13.1(b)(1)-(2), 13.11(a). If your case was filed prior to September 1, 2003 and is not an asbestos or silica case, Rule of Judicial Administration 11 could allow a regional consolidation and provides the opportunity to adopt and apply Rule 13 to the proceedings through an agreement by all parties. TEX. R. JUDICIAL ADMIN. 11.7, 13.1(c). B. Substantive Requirements For Transfer The legislature provided three requirements for creating a pretrial MDL court, which are carried forward into Rule 13. First, cases pending in the same or different constitutional courts, county courts at law, probate courts, or district courts may be transferred to any district court for consolidated or coordinated

6 pretrial proceedings if they involve one or more common questions of fact. TEX. GOV T CODE ANN ; TEX. R. JUDICIAL ADMIN. 13.1(b)(1). Second, transfer is allowed if the Panel finds that the transfer will be for the convenience of the parties and witnesses and if a transfer will promote the just and efficient conduct of the actions. TEX. GOV T CODE ANN (1)-(2); TEX. R. JUDICIAL ADMIN. 13.3(a)(2). These elements will be addressed below. 1. Relatedness: One or more questions of common fact A party in a case may move for transfer of the case and related cases to a pretrial court. TEX. R. JUDICIAL ADMIN. 13.3(a). Related means that cases involve one or more common questions of fact. Id. R. 13.2(f). Relatedness is the threshold question for creation of an MDL: if the cases are not related, the Panel lacks authority to create an MDL pretrial court, even if creating an MDL would serve the interests of convenience and efficiency. In re State Farm Lloyds Hidalgo Cnty. Hail Storm Litig., 434 S.W.3d 350, 353 (Tex. MDL Panel 2014); In re Deepwater Horizon Incident Litig., 387 S.W.3d 127, 128 (Tex. MDL. Panel 2011). Unlike in the class certification context, there is no requirement that common questions of fact predominate. In re State Farm Lloyds, 434 S.W.3d at 353 & n.7. In fact, the Panel has explained that [t]here may indeed be differences. But every case is different. No two cases are alike. A rule 13 transfer of cases does not require that the cases be congruent or anything close to it. In re Ford Motor Co. Speed Control Deactivation Switch Litig., 285 S.W.3d 185, (Tex. MDL Panel 2008). Moreover, the cases do not have to arise from a common catastrophic event to satisfy the relatedness inquiry. In re Toyota Unintended Acceleration Litig., 398 S.W.3d 892, (Tex. MDL Panel 2010) (no common event, but transfer granted where common questions arose from allegedly defective product); In re Digitek Litig., 387 S.W.3d 115, 117 (Tex. MDL Panel 2009). Despite the lack of a predominance requirement, the Panel has noted that [w]hile the number of common fact questions necessary to cause cases to be related is not capable of a bright-line rule, cases involving complicated, numerous, or significant common fact questions are more likely to be considered related. In re State Farm Lloyds, 434 S.W.3d at 353 & n.7; cf. In re Louis Dreyfus Pipeline LP Litig., 339 S.W.3d 378, 382 (Tex. MDL Panel 2008) (holding highly individualized core issues required denial of transfer); In re Ad Valorem Tax Litig. ( Valero I ), 216 S.W.3d 83, 85 (Tex. MDL Panel 2006) ( Because property valuation is such an individualized and local inquiry, and because it is the core issue in each of these cases, we respectfully 2 reject the argument that these cases involve one or more common fact questions within the meaning of rule 13. ). Typically, the Panel will look to the pleadings in the allegedly related cases to look for common questions of fact that run throughout all the cases. For example, nearly identical generalized allegations of wrongdoing can support a finding of relatedness, as can common business practices at issue in the litigation. See In re Kubosh Litig., No (May 19, 2015) ( However, there will also be common issues on both sides of the litigation given that both sides are alleging common schemes and directives stemming from phones calls using the same script that were made from the same office over a short period of time. ); In re Alcon S holder Litig., 387 S.W.3d 121, (Tex. MDL Panel 2010) (granting transfer where all the cases consist of claims for breach of fiduciary duties and breach of contract arising out of the same transaction ). While the Panel certainly evaluates the parties pleadings, it has held that the discovery sought in the cases is a better indicator of the common facts involved than the individual pleadings in each case. In re Fraudulent Hosp. Lien Litig., No (Tex. MDL Panel Aug. 12, 2015); In re Farmers Ins. Co. Wind/Hail Storm Litig., No (Tex. MDL Panel June 24, 2015) (op. on reh g) ( Our opinions focus on the discovery sought and not just on the claims pleaded because it is pretrial discovery that justifies a pretrial court by implicating the MDL goals of convenience, efficiency, and just handling. ). For example, discovery directed at common business practices involved in all the cases can support a finding of relatedness. In re Fraudulent Hosp. Lien Litig., No ; In re Farmers Ins. Co. Wind/Hail Storm Litig., No Additionally, where the same witnesses will likely be called to testify to the same factual issues, the Panel has found relatedness. See In re Kubosh Litig., No (holding that relatedness inquiry satisfied where testimony from defendants employees, a relatively few number of people, would likely be required in more than one case). Parties should carefully evaluate the common factual issues and determine what is actually in dispute when drafting or responding to a motion to transfer. The inquiry is not whether there are common facts among the cases rather, the question is whether there are common disputed facts. This issue is highlighted in cases involving a common disaster, such as a hurricane. In those cases, the fact that the disaster occurred and is involved in each case is not, by itself, enough to require a transfer. See In re Delta Lloyds Ins. Co. of Houston, 339 S.W.3d 384, 387 (Tex. MDL Panel 2008) ( At the outset, we note that the fact that these insurance

7 coverage disputes may arise from the same disaster does not mean ipso facto that they are related for purposes of Rule 13. Here, in all three motions to transfer, the occurrence of a single disaster Hurricane Rita is a common undisputed fact rather than a common question of fact under Rule 13. ); see also In re Personal Injury Litig. Against Great Lakes Dredge & Dock Co. LLC, 283 S.W.3d 547 (Tex. MDL Panel 2007). The disaster s occurrence and affect on the claims may, in fact, be an undisputed issue. It is for this reason that a special rule has arisen in first party insurance claims handling cases arising from common disasters. In those cases, the parties must also allege: (1) that the insurer handled claims in accordance with standard business practices, and (2) if multiple weather events are involved, the significant weather events occurred in close proximity. In re State Farm Lloyds, 434 S.W.3d at 353. Moreover, the Panel has distinguished between common fact issues and common ultimate issues. See In re Kone, Inc., 216 S.W.3d 68, 70 (Tex. MDL Panel 2005) (common ultimate issues of breach of contract and damages were insufficient, where each claim turned on its own facts). Practice Tip: If you are seeking an MDL transfer, be sure to include outstanding discovery requests, preferably from your opponents, along with your motion to transfer. Highlight for the Panel the common discovery of facts requested, and emphasize the number, significance, and complexity of the common fact questions. If you are opposing the motion, do the opposite. Present the Panel with examples of complex, individualized discovery. Even though the predominance of individualized questions of fact is not determinative, it can certainly be persuasive. While complicated legal questions are not dispositive, they are also persuasive, and if space allows, include them as additional but not primary bases for the transfer. If you are seeking an MDL transfer, before your MDL filing or even during the pendency of the MDL (if the proceedings are not stayed), consider seeking consolidation of the cases for pretrial matters under Texas Rule of Civil Procedure 174. While this will not provide the same benefit as an MDL, given that the consolidation rules do not provide that decisions by a consolidated pretrial court are not binding on the original trial courts, it can provide some benefits. In re Cont l Airlines Flight 1404, 387 S.W.3d 925, 929 (Tex. MDL Panel 2009); see also In re State Farm Lloyds Hurricane Ike Litig., 392 S.W.3d 353, 358 (Tex. MDL Panel 2012) ( The use of county-wide pretrial courts for these cases, while commendable, cannot suffice for a pretrial court with Rule 13 obligations and powers. ). 3 First, Rule 174 consolidation can help the party seeking an MDL to avoid multiple hearings and inconsistent rulings in the cases before different courts while the Panel considers the transfer motion. Second, obtaining consolidation for pretrial purposes under Texas Rule of Civil Procedure 174(a) requires a finding that the cases involve common questions of law or fact. TEX. R. CIV. P. 174(a). If you seek a consolidation order, make sure it includes a finding that the questions of fact are common to the cases. Id. In a recent unpublished decision, the Panel noted that the underlying cases had been consolidated for pretrial purposes under Rule 174 and relied on the Rule 174(a) order to support its decision that the cases were related. In re Fraudulent Hosp. Lien Litig., No ; see also In re Ford Motor Co. Speed Control Deactivation Switch Litig., 285 S.W.3d at (noting plaintiffs opposing transfer had inconsistently sought Rule 174 consolidation). In the past, parties opposing creation of an MDL have argued that consolidation for pretrial purposes under Rule 174 or under local rules would better serve the parties. The Panel typically rejects those arguments where the other requirements for a transfer are met. In re Cont l Airlines Flight 1404, 387 S.W.3d at 929; see also In re State Farm Lloyds Hurricane Ike Litig., 392 S.W.3d at 358. For example, rejecting such an argument under the Travis County local rules, the Panel held: Unlike Travis County Local Rule 2.6 which fails to specify what pretrial matters the assigned judge can consider, Rule 13.6 of the Texas Rules of Judicial Administration expressly lists twelve matters an MDL pretrial court can undertake, including scheduling discovery proceedings and setting appropriate limitations on discovery, issuing protective orders, scheduling dispositive motions, providing for an exchange of documents, and establishing a document depository. Even more importantly, Rule 13.8 states that the MDL pretrial court s orders are generally binding on the trial court after remand. No similar provision binds the Travis County district courts. Finally, [p]retrial courts operating under the rules of civil procedure, supplemented by local rules, are simply not able to serve Rule 13 s goals because an MDL pretrial court, unlike other trial courts, is empowered and instructed to ensure the orderly and coordinated remand of cases for trial. Pretrial judges are granted continuing authority over remanded cases for the plain reason that continuances,

8 resettings, and further discovery after remand could interfere with the pretrial judge s management of the remaining MDL cases. Rule 13 therefore limits the trial judge s power to make rulings in remanded cases that might interfere with the remaining MDL cases. Accordingly, we reject the plaintiffs/intervenors argument that the assignment order made by the Travis County local administrative judge pursuant to Local Rule 2.6 provides the same efficiencies as a consolidation and transfer under the MDL procedures. In re Spicewood Wildfire Litig., 434 S.W.3d 873, (Tex. MDL Panel 2014) (internal citations omitted). 2. Convenience of the Parties and Witnesses; Promoting the Just and Efficient Conduct of the Litigation A transfer may be made by the judicial panel on multidistrict litigation on its determination that the transfer will: (1) be for the convenience of the parties and witnesses; and (2) promote the just and efficient conduct of the actions. TEX. GOV T CODE ANN Generally, it is more convenient for witnesses and parties who find themselves involved in several cases to litigate in one pretrial court instead of several. In re Silica Prods. Liab. Litig., 166 S.W.3d 3, 5 (Tex. MDL Panel 2004). When the plaintiffs allegations and the named defendants are virtually identical across the cases, discovery of documents and fact witnesses is likely to be virtually identical as well; it makes sense in such cases to vest a single pretrial judge with the responsibility and discretion to manage discovery in a way that avoids needless duplication of efforts. In re Alcon S holder Litig., 387 S.W.3d at 124 (citing In re Standard Guar. Ins. Co., 339 S.W.3d 398, (Tex. MDL Panel 2009); In re Delta Lloyds Ins. Co., 339 S.W.3d at ). What this means is that if the Panel finds that the relatedness inquiry is satisfied, the convenience and efficiency factors likely will be as well. Both Texas Courts and the Panel recognize that Texas public policy is furthered where procedures are adopted making discovery more... efficient by minimizing the duplication of efforts inherent in requiring similarly situated parties to go through the same discovery process time and time again, even though the issues involved are virtually identical.... In re Champion Indus. Sales, LLC, 398 S.W.3d 812, 819 (Tex. App. Corpus Christi 2012, orig. proceeding) (quoting Garcia v. Peeples, 734 S.W.2d 343, 347 (Tex. 1987)); see also In re Weekley Homes, L.P., 295 S.W.3d 309, 316 (Tex. 2009) (discussing the 4 wide acceptance of the goal to reduce the costs of discovery, to increase its efficiency, to increase uniformity of practice ). Thus, when considering the convenience and efficiency inquiry, the Panel focuses on whether creating a pretrial MDL court would (1) eliminate duplicative and repetitive discovery, (2) minimize conflicting demands on witnesses, (3) prevent inconsistent decisions on common issues, and (4) reduce unnecessary travel. In re State Farm Lloyds Hurricane Ike Litig., 392 S.W.3d at Additionally, the Panel will consider if creating an MDL pretrial court will enhance judicial efficiency: A fifth objective of the MDL process is to allocate finite judicial resources intelligently by minimizing the occasions when different judges decide the same or similar issues again and again. When one trial judge has decided an issue that is common to a set of related cases, the legal system cannot afford to let other trial judges spend time deciding the issue again. Time and energy are finite quantities, and when a judge spends docket time and effort on A and B there will be less time and energy remaining for X and Y. Rule 13 s concern for efficiency rests on the belief that unnecessary relitigation of issues, which can deprive other litigants of their fair share of courtroom time, is an extravagance that the legal system cannot afford. To the extent that the pretrial judge s workload does increase, that would seem to be more than offset by the decreased workload the other [ ] judges will collectively enjoy. Id. (quoting In re Silica Prods. Liab. Litig., 166 S.W.3d at 8). Where cases are pending in multiple counties, parties opposing an MDL primarily argue that the litigants, their counsel, and the witnesses will be inconvenienced if the case is transferred away from their local courthouse. See In re Kubosh Litig., No ; see In re Louis Dreyfus Pipeline LP Tax Litig., 339 S.W.3d at 383 (deciding that transfer would not be convenient in part because it would require many of the counties employees to travel great distances). For obvious reasons, the Panel has rejected this inconvenience argument in cases where the counties are contiguous or relatively close to one another. In re Kubosh Litig., No ; see In re Cano Petroleum, Inc., 283 S.W.3d 179, 184 n.6 (Tex. MDL Panel 2008) (ordering transfer where cases involved common incident and were pending in adjacent counties). In cases where the distance between venues is great, however, parties seeking transfer argue the

9 discovery will continue to be local due to the subpoena rules, and no inconvenience will be caused for the witnesses. In re Ford Motor Co. Speed Control Deactivation Switch Litig., 285 S.W.3d at 188 (noting Ford s argument that parties and nonparty witnesses can be deposed under the rules, normally in the county of suit for a party plaintiff or within 150 miles of where a non-party resides or is served, and that the pretrial judge can organize the taking of depositions such as Ford employees and suppliers and their respective current or former employees ). A party seeking an MDL transfer need not show that witnesses or parties have already been inconvenienced. Valero I, 216 S.W.3d at 86. That does not mean, however, that a party can rely on a bare assertion of possible inconvenience. Id. Rather, [t]he circumstances of the litigation must at least make the assertion plausible. Id. For example, in Valero I, the Panel rejected an argument that the parties and witnesses would be inconvenienced in the absence of a transfer where Valero alleged that its employees would have to travel to multiple counties in tax appraisal litigation. Id. The Panel contrasted that with the numerous appraisal district personnel and local attorneys, subject to local governmental budgets, who would be required to travel for hearings that may not even be relevant to their particular case. Id.; see also In re Louis Dreyfus Pipeline LP Litig., 339 S.W.3d at In contrast, in other cases dealing with these arguments, the Panel has recognized that the trial court has many options to minimize any inconvenience in the event of a transfer. For example, in In re Cano, the Panel opined: Plaintiffs are concerned that if a pretrial judge is assigned they will have to attend hearings and depositions on matters that may be of minimal importance to them. Not knowing in advance whether their interests will be implicated, they may have to err on the side of caution and attend, wasting attorney time and increasing costs. We are confident that the pretrial judge, upon request, will address these concerns. The pretrial judge might, for example, ensure that parties with property damage cases need not participate in damages-only discovery in injury and death cases and vice versa. The court could order that parties with cases in only one county need not participate in specified localized discovery in other counties. And the court could allow any lawyer who thinks his client will not be interested in a deposition to the lawyer who noticed the deposition and seek assurances about the scope of the 5 questioning; the court could grant the right to re-depose the witness if the assurances were not accurate or something unexpected occurred. These suggestions are illustrative only; lawyers should be creative in asking for efficiency-seeking relief that is tailored to the situation. The pretrial judge has ample discretion to fashion such relief. In re Cano Petroleum, Inc., 283 S.W.3d 179, (Tex. MDL Panel 2008); see also In re Ford Motor Co. Speed Control Deactivation Switch Litig., 285 S.W.3d at Another common argument against transfer is the possibility of delaying cases that are ready for trial. Delay, however, is typically not a reason to deny a transfer. [T]ransfers are permitted even if discovery is substantially complete and if the cases are ready to set for trial. In re Kubosh Litig., No ; see In re Tex. Windstorm Ins. Ass n Hurricanes Rita & Humberto Litig., 339 S.W.3d 401, 404 (Tex. MDL Panel 2006) (noting that completion of discovery and the existence of a trial setting do not immunize a case from MDL procedures ). The Panel has reasoned that any cases completing the pretrial process after being transferred may be remanded to trial regardless of whether all of the transferred cases are ready. In re Kubosh Litig., No ; see In re Cano Petroleum, Inc., 283 S.W.3d at 182. Furthermore, the Panel frequently considers the risk of inconsistent rulings in cases presented for an MDL transfer. A key benefit of transferring related cases to a single pretrial judge is that such complicated issues may be raised once and treated consistently, rather than litigated repeatedly with potentially divergent results. In re Alcon S holder Litig., 387 S.W.3d at 124 (citing In re Silica Prods. Liab. Litig., 166 S.W.3d at 6). To make such an argument, the party seeking a transfer should identify the specific issues on which it is expected that rulings might be inconsistent the Panel will not speculate as to what issues must be decided consistently or how a pretrial judge can address the cases to promote uniformity of decisions. In re Kone, Inc., 216 S.W.3d at 70; In re Vanderbilt Mortgage and Fin., Inc., 166 S.W.3d 12, 15 (Tex. MDL Panel 2005). The more complex and important the issues are, the more likely the risk of inconsistent rulings will weigh in favor of a transfer. Finally, the Panel has rejected arguments against a transfer that the litigation is currently being handled efficiently and that the parties are generally agreeable, if the other requirements are met: But even if these cases are currently moving smoothly because the lawyers have been agreeing on pretrial issues, we see no reason

10 why such agreeableness would cease when the pretrial phase of the cases is handled by one judge instead of fifty-five. If indeed the litigants who have been reaching agreements in different courts around the state begin to set matters for hearing when the cases come before the pretrial judge, that would seem to be a right that the legal system gives them. Rather than viewing this as disagreeableness, we view it as litigants choosing to present their contentions to the legal system for decision. Agreed orders and judgments are certainly to be desired, but litigants must also be able to submit their contentions to the court for decision when they are unable to agree with the other parties. In re Silica Prods. Liab. Litig., 166 S.W.3d at 5-6; see also In re Ford Motor Co. Speed Control Deactivation Switch Litig., 285 S.W.3d at ( Also, in order for a movant to satisfy its burden, it need not be shown that there currently exists disagreement or difficulties in discovery. ). Practice Tip: If you are the party requesting the transfer, identify the relevant discovery that has been or will be duplicated in each case. Specifically identify the witnesses, and the locations of those witnesses, who will be necessary for all of the cases. Emphasize that non-party witnesses will likely not be required to travel for their depositions, and that a pretrial judge can coordinate discovery more efficiently to avoid duplication. Highlight the complicated legal issues and the consequences of inconsistent rulings, particularly if there are privileges involved. If you are the party opposing the transfer, emphasize the individualized nature of the discovery. Highlight whether the parties are represented by numerous different counsel, the locations of the parties and their counsel, and whether the counsel would be required to attend every hearing (particularly if you represent a governmental entity). Both parties should provide specific examples to support their arguments, and rely on documents in their appendix to do so. IV. PROCEDURE FOR REQUESTING A TRANSFER There are three ways to obtain a transfer to an MDL pretrial court. First, any party to a case can request a transfer. TEX. R. JUDICIAL ADMIN. 13.3(a). Second, a trial court or presiding judge of an administrative judicial region can request a transfer. Id. R. 13.3(b). Finally, the MDL Panel itself can initiate a transfer. Id. R. 13.3(c). 6 If a party desires the creation of an MDL pretrial court, that party must file a written motion to transfer with the Panel. Id. R. 13.3(a). The motion must: (1) state the common question or questions of fact involved in the cases; (2) contain a clear and concise explanation of the reasons that 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 all parties in those cases for which transfer is sought agree to the motion; and (4) contain an appendix that lists: (A) the cause number, style, and trial court of the related cases for which transfer is sought; and (B) all parties in those cases and the names, addresses, telephone numbers, fax numbers, and addresses of all counsel. Id. R. 13.3(a). A more detailed discussion of the motion and its contents appears below. Even if a party does not request a transfer, a trial court or a presiding judge of an administrative judicial region can request a transfer. Id. R. 13.3(b). The request must be in writing and must list the cases to be transferred. Id. Similarly, [t]he MDL Panel may, on its own initiative, issue an order to show cause why related cases should not be transferred to a pretrial court. Id. R. 13.3(c). V. PROCEDURAL RULES GOVERNING THE MOTION, RESPONSE, AND REPLY IF A PARTY REQUESTS TRANSFER When a party initiates transfer proceedings, the case before the Panel begins with the motion to transfer. Id. R. 13.3(a). The opposing parties have an opportunity to file a response, and then the moving party is entitled to file a reply. Id. R. 13.3(d), (e). The same rules of form apply to all three briefs. A. Form The three briefs must conform to the requirements of Rule 9.4 of the Texas Rules of Appellate Procedure. Id. However, Rule 9.4 does not provide a word count limit for an MDL transfer motion. See TEX. R. APP. P Rather, Rule 13.3 provides that absent leave of the Panel, the briefs must not exceed 20 pages. TEX. R. JUDICIAL ADMIN. 13.3(e). The page limit requirement applies to only the the portions of a motion to transfer required by subparagraphs (a)(1)-(2), which are the parts of the motion explaining why the cases are related and the convenience factors. Id. It does not include the certificate of conference or the appendix, nor would it include any preliminary information such as a table of contents or authorities, if the party chooses to include those. Id. The MDL Panel has authority to request additional briefing from any party, id., and it has done so in past cases. The MDL Panel will accept as true facts stated in a motion, response, or reply unless another party

11 contradicts them. Id. R. 13.3(j). While this may seem to create an onerous burden on a responding party, a responding party can deny all factual statements generally there appears to be no specificity requirement. Compare TEX. R. CIV. P. 87(3)(a) ( All venue facts, when properly pleaded, shall be taken as true unless specifically denied by the adverse party. ). Practically speaking, the Panel does not, in its decisions, make fact-findings about the merits of the underlying cases, due to the scope of the inquiries it is required to make. As explained above, the Panel is primarily concerned with the allegations of the parties, not the actual proof of the allegations, and the status of the litigation itself. The parties are required to confer prior to filing a motion, and the motion to transfer should include a certificate of conference. TEX. R. JUDICIAL ADMIN. R. 13.3(a). The same is true for any response or reply that seeks affirmative relief different than that stated in the original motion to transfer. Id. The motion should also contain a certificate of compliance with Rule 9.4 and state that the motion is within the page limit requirements. Id. R. 13.3(e). However, the number of parties that join in the motion to transfer or oppose the motion does not necessarily affect the outcome. The Panel has explained: Respondents (and the dissent) stress that the six movants are a small minority of the parties in these cases. It is true that most of the defendants have not taken sides on this motion. Six have moved for a pretrial judge; eleven have opposed that motion; the other 141 have remained on the sidelines. But we cannot accept the suggestion that legal rights depend upon the number of litigants who assert them. Rule 13 says that a party may move for pretrial transfer. (And of course a party may oppose pretrial transfer.) Rule 13 s focus on the rights of the individual party is consistent with our legal system s belief that in multi-party cases rights inhere in individuals, not groups or coalitions of parties. When one lone litigant in a multiparty case makes an objection or asks for trial by jury, for example, the court does not ask for a show of hands. The same thing is true of Rule 13. In re Silica Prods. Liab. Litig., 166 S.W.3d at 7-8. As noted above, the motion must include an appendix. TEX. R. JUDICIAL ADMIN. 13.3(a). The appendix must list: (A) the cause number, style, and trial court of the related cases for which transfer is sought; and (B) all parties in those cases and the names, addresses, telephone numbers, fax numbers, 7 and addresses of all counsel. Id. Rule 13.3(j) states that [a] party may file evidence with the MDL Panel Clerk only with leave of the MDL Panel, and that the Panel may order parties to submit evidence by affidavit or deposition and to file documents, discovery, or stipulations from related cases. Id. R. 13.3(j). The Panel has not expressly clarified the meaning of this rule. Practice Tip: Because the rules apply a page limit, instead of a word count limit, appellate practitioners should dust off their old tricks to shorten the page limits. For example, using footnotes in 12- point font for legal citations tends to shorten the brief. [Most of the Panel s decisions utilize footnotes, and it appears to be a preference for most of the Panel members.] If you simply cannot fit within the 20 pages, file a motion to exceed the page limits. The Panel has granted these motions on occasion. See, e.g., Union Carbide v. Adams, No Prior to a decision, the Panel may ask for supplemental briefing on certain issues or additional appendix materials. For example, in In re National Lloyds Insurance Company Hail and Wind Storm Litigation, No , the Panel asked the parties to file supplemental briefing to address a recent Panel decision. As in an appellate proceeding, keep an eye on the MDL Panel s decisions, and the author believes it is perfectly acceptable to send short letter briefs to the Panel to explain how you think recent Panel decisions affect the disposition of your case the Panel may request that anyway. In practice, many parties whether moving for or responding to a motion to transfer include more in their appendix than required by the rule without filing a request for leave. Id. R. 13.3(j); see, e.g., In re Fraudulent Hosp. Lien Litig., No In the author s opinion, the moving party should include (1) a copy of a representative sample of the pleadings in the cases, to the extent necessary to show common issues of fact running through the pleadings; (2) representative samples of discovery served in the case to show overlap in the discovery being sought; and (3) any relevant orders of the trial courts showing the procedural posture of the cases, particularly if they demonstrate a lack of judicial efficiency and conflicting rulings. To be safe, a motion for leave could be filed; however, the Panel has in the past considered these types of documents submitted by parties in an appendix or even a supplemental appendix without requiring or ruling on a motion for leave. See, e.g., In re Fraudulent Hosp. Lien Litig., No , Order dated August 12, 2015 (denying motion to strike supplemental appendix and motion for leave as moot). If an objection is raised and most often it is not given that pleadings, orders, and discovery are pretty hard to dispute, a party can file a motion for leave at that point. Affidavits relating to

12 facts in the case or deposition testimony attempting to prove up underlying facts, however, may require an order granting leave. B. Filing The briefs must be filed with the MDL Panel Clerk. TEX. R. JUDICIAL ADMIN. 13.3(f). The Honorable Clerk of the Supreme Court of Texas has been appointed to serve in this role, and pursuant to the rule, requires that all documents be electronically filed. Id.; see The rules allow the MDL Panel Clerk to set reasonable fees approved by the Supreme Court of Texas for filing and other services provided by the clerk. TEX. R. JUDICIAL ADMIN. 13.3(g). The fee for a motion to transfer is currently set at $ Any other document, including responses, replies, motions, or any letters filed incur a fee of $ C. Service A party must serve a motion, response, reply, or other document on all parties in related cases in which transfer is sought. TEX. R. JUDICIAL ADMIN. 13.3(h). In cases where there are numerous aligned parties represented by different counsel, the MDL Panel Clerk may designate a party or parties to serve a request for transfer on all other parties. Id. In practice, the MDL Clerk may pick a party s lead counsel on both sides and assign them responsibility for serving all filed documents in the case on other parties aligned similarly. For an example of an order appointing a serving party, see In re Washburn Ranch Fire Litig., No (Order dated Dec. 10, 2014). Practice Tip: Service is generally governed by Rule 9.5 of the Texas Rules of Appellate Procedure. TEX. R. JUDICIAL ADMIN. 13.3(h). The MDL Clerk has, in its orders appointing counsel to accomplish service for aligned parties, specified the parties to accomplish service and ordered that service be by e- mail or facsimile. See In re Washburn Ranch Fire Litig., No (Order dated Dec. 10, 2014). Because Rule 9.5 requires that documents filed electronically be served through the electronic filing manager, this should not be an issue. However, if counsel for one of the parties does not have their e- mail address on file with the e-filing manager, be sure to comply with the MDL Clerk s order do not assume that mailing will be sufficient. The rules require that a party must send a copy of the motion, response, reply, or other document to each member of the MDL Panel. TEX. R. JUDICIAL ADMIN. 13.3(f). However, the MDL Panel Clerk handles this and has specifically requested that parties not transmit documents directly to the MDL Panel. Id.; see 8 It is not necessary to list the Panel members in your certificate of service. D. Notice to the Trial Court A party seeking a transfer must notify the affected trial courts of the filing. TEX. R. JUDICIAL ADMIN. 13.3(g). The notice must be in the form prescribed by the MDL Panel. Id. The form is available on the MDL Panel website, otice.pdf. If the request to transfer was filed by a judge, the MDL Panel Clerk must cause such notice to be filed when a request for transfer by a judge has been filed. TEX. R. JUDICIAL ADMIN. 13.3(g). Rule 13.3(g), however, does not address the notice to the trial court when the Panel initiates the transfer itself, but presumably, the MDL Panel Clerk would also cause the notice to be filed or the Panel would order the parties to do so. VI. EFFECT OF MOTION TO TRANSFER ON UNDERLYING LITIGATION Unlike other appellate proceedings where the appellate body acquires jurisdiction upon the filing with that body, a motion to transfer does NOT automatically transfer jurisdiction over the cases to the Panel. Id. R. 13.4(a). The motion likewise does not automatically stay the underlying litigation or suspend any orders of the trial courts. Id. Rather, if a party moving for transfer desires a stay, it must expressly request one from the Panel. Id. R. 13.4(b). The Panel may stay all or part of any trial court proceedings until its final ruling. Id. Practice Tip: While the Rule does not expressly provide for the form of the motion, the undersigned counsel suggests that the motion comply with Texas Rule of Appellate Procedure 10 in particular, the parties should confer as required by Rule 10.1(a)(5). Generally, mere conflicting pretrial deadlines and the fact that cases are pending in multiple counties is not enough to grant a stay. See, e.g., In re Geico Storage Fee Litig., No The Panel will typically grant a stay if all parties agree. In Re Chesapeake Barnett Royalty Litig., No If you are opposed to a stay, be wary of a request to agree to a short stay. For example, in Chesapeake, the plaintiffs agreed only to a 4-6 week stay. The Panel granted the motion and stayed the case until further order of the Panel, without regard to the length of the agreed stay. Beware: an impending trial date may not be enough to warrant a stay. For example, the Panel refused to stay cases against an insurance company despite trial settings in numerous cases set to occur within days after the motion to transfer to an MDL pretrial court was filed. See In re Nat l Lloyds Ins. Co.

13 Hail & Wind Storm Litig., No In the motion to stay, the movant filed its request for an MDL and for an emergency stay on April 2, 2015, and it alleged that 33 cases were set for trial four days later with conflicting settings. The stay was denied April 7, The lesson? Don t wait until your cases are set for trial if you are considering requesting an MDL. You may not be able to get a forced continuance from the Panel. VII. TIMING OF THE RESPONSE TO THE MOTION AND REPLY TO THE RESPONSE. While the party moving to transfer is obviously subject to its own timeline for filing a motion to transfer, there are deadlines for the response and reply. Any party in a related case may file: (1) a response to a motion or request for transfer within twenty days after service of such motion or request; (2) a response to an order to show cause issued under subparagraph [13.3](c) within the time provided in the order; and (3) a reply to a response within ten days after service of such response. TEX. R. JUDICIAL ADMIN. 13.3(d). The Panel, however, frequently grants motions for extension of time to file briefs. Any such motion should comply with Texas Rule of Appellate Procedure 10. The same form requirements for motions, addressed above, apply to the response and reply. Id. R. 13.3(e). The response and reply should be served in in accordance with the MDL Panel Clerk s instructions if a party has been designated to accomplish service. Otherwise, the response and reply must be served on every party to related cases in which transfer is sought. Id. R. 13.3(h). Practice Tip: While there is no express provision for an appendix to a response or reply, there is also no prohibition. If you are responding to a motion or filing a reply, consider including an appendix to include relevant pleadings, discovery, or orders, to the extent necessary to contradict factual allegations in the preceding brief. Again, it does not appear that the Panel will require leave to do so, but obviously requesting leave is the most conservative approach. VIII. HEARINGS 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. Id. R. 13.3(k). The MDL Panel Clerk would provide notice of the date of submission or the time and place of oral hearing must be given to all parties in all related cases. Id. Hearings before the Panel are rare. In recent years, the Panel has not set hearings in transfer proceedings. In older cases where hearings were 9 requested, the procedure for the oral argument varied according to the case. For example, in one case, the Panel Clerk notified the parties of the time and location and ordered certain attorneys to notify interested parties. The Clerk then set a deadline for interested parties to notify the Court of their desire to present argument and encouraged the parties to coordinate to reduce the number of attorneys presenting argument. After the deadline, the Panel indicated it would send a notice allocating the time for argument among the respective attorneys. See, e.g., Union Carbide v. Adams, No (Order dated Dec. 3, 2003). In later cases, however, the Panel allocated 30 minutes or as much as an hour per side, and did not indicate which attorneys would be entitled to argue. In re Silica Products Liability Litigation, No (Order dated Apr. 14, 2006); (Order dated Mar. 27, 2007); In re Ad Valorem Tax Litigation, No The Clerk in those cases issued orders stating: If interested attorneys are not able to agree on how to allocate the thirty minutes for their side, counsel shall arrange a conference call with the panel chair, who will discuss the matter, consult the full panel, and allocate the time. See, e.g., In re Hurricane Rita Homeowners Claims, No (Order dated Mar. 19, 2008); In re Clayton Homes, No (Order dated July 27, 2005). IX. DECISION Three of the five Panel members must vote to grant a transfer. TEX. R. JUDICIAL ADMIN. 13.3(l); TEX GOV T CODE (b) ( The concurrence of three panel members is necessary to any action by the panel. ). The order granting the motion must be in writing, and the Panel must find that the related cases involve one or more common questions of fact, and that transfer will be for the convenience of the parties and witnesses and will promote the just and efficient conduct of the related cases. TEX. R. JUDICIAL ADMIN. 13.3(l). Every order of the MDL Panel must be signed by either the chair or by the MDL Panel Clerk, and must identify the members of the MDL Panel who concurred in the ruling. Id. R. 13.3(m) The transfer order must specify the district court to which the cases are transferred. Id. R. 13.3(l). By rule, this requirement must be satisfied for the transfer to be effective. Id. In fact, according to Rule 13, the transfer itself is not effectuated until a notice is filed with the underlying courts: A case is deemed transferred from the trial court to the pretrial court when a notice of transfer is filed with the trial court and the pretrial court. Id. R. 13.5(a). The notice must: (1) list all parties who have appeared and remain in the case, and the names, addresses, phone numbers, and bar numbers of their attorneys or, if a party is pro se, the party s name, address, and phone number; (2)