The next hearing session of the United States Judicial Panel on Multidistrict Litigation (“JPML”) is scheduled for March 29, 2018 in Atlanta, Georgia.  Ten matters are set for oral argument to consider motions to transfer each to one centralized district for coordinated pretrial proceedings, covering a variety of hot topics. The hearing session will cover two data breach matters, a bitcoin exchange issue, and two patent litigation consolidation requests.

Overview of January 2018 Hearing Session

Following the January 25, 2018 hearing session in Miami, Florida, the JPML issued transfer orders centralizing cases and creating new Multidistrict Litigation (“MDL”) in seven out of the thirteen new petitions:

• MDL No. 2809 – In Re: Onglyza (Sexagliptin) and Kombiglyze XR (Saxagliptin and Metformin) Products Liability Litigation (Transferred to the Honorable Karen K. Caldwell, Eastern District of Kentucky)
• MDL No. 2814 – In Re: Ford Motor Co. DPS6 Powershift Transmission Products Liability Litigation (Transferred to the Honorable André Birotte, Jr., Central District of California)
• MDL No. 2816 – In Re: Sorin Heater-Cooler System Products Liability Litigation (No. II) (Transferred to the Honorable John E. Jones, III, Middle District of Pennsylvania)
• MDL No. 2817 – In Re: Dealer Management Systems Antitrust Litigation (Transferred to the Honorable Amy J. St. Eve, Northern District of Illinois)
• MDL No. 2818 – In Re: General Motors Air Conditioning Marketing and Sales Practices Litigation (Transferred to the Honorable Matthew F. Leitman, Eastern District of Michigan)
• MDL No. 2819 – In Re: Restasis (Cyclosporine Opthalmic Emulsion) Antitrust Litigation (Transferred to the Honorable Nina Gershon, Eastern District of New York)
• MDL No. 2820 – In Re: Dicamba Herbicides Litigation (Transferred to the Honorable Stephen N. Limbaugh, Jr., Eastern District of Missouri)

Matters Set for Oral Argument

The following matters are scheduled for oral argument during the March 29 hearing session:

• MDL No. 2822 – In Re: First Databank Prescription Information Litigation
• MDL No. 2824 – In Re: Gold King Mine Release in San Juan City, Colorado, on August 5, 2015
• MDL No. 2825 – In Re: Alteryx, Inc., Customer Data Security Breach Litigation
• MDL No. 2826 – In Re: Uber Technologies, Inc., Data Security Breach Litigation
• MDL No. 2827 – In Re: Apple Inc. Device Performance Litigation

• MDL No. 2828 – In Re: Intel Corp. CPU Marketing Sales Practices and Products Liability Litigation
• MDL No. 2829 – In Re: Mt. Gox Bitcoin Exchange Litigation
• MDL No. 2830 – In Re: Uniloc USA, Inc., and Uniloc Luxembourg, S.A., HPE Portfolio Patent Litigation
• MDL No. 2831 – In Re: AM Retail Group, Inc., Fair Labor Standards Act (FLSA) and Wage and Hour Litigation
• MDL No. 2832 – In Re: Liquid Toppings Dispensing System (‘447) Patent Litigation

MDL No. 2827 – In Re: Apple Inc. Device Performance Litigation. A class action plaintiff in the Northern District of California filed for transfer of actions across the country against Apple, Inc. The petition for transfer states that the actions sought to be consolidated and coordinated all deal with Apple “throttling” the performance of older model iPhones following the release of the iOS 10.2.1 operating system. The “throttling” allegedly involved automatically slowing down iPhone system performance to use less energy and conserve battery when the OS detected a battery that was not working well. The lawsuits allege that Apple failed to inform consumers that it was purposefully slowing down its devices, or to provide a promised fix to the problem; ultimately, the lawsuits claim consumers were denied the opportunity to make an informed decision about whether to buy a new iPhone or a much less expensive replacement battery.

MDL No. 2832 – In Re: Liquid Toppings Dispensing System (‘447) Patent Litigation. One of two proposed patent litigation MDLs set for argument during this session, this matter involves defendants’ request to transfer over twelve actions involving competing franchises that offer frozen treats and flavored, shaved ice from specially-designed trucks to one MDL.  Kona Ice, Inc. advertises that its trucks are “entertainment vehicles” whose best feature is the “Flavorwave,” a row of self-service taps that dispense flavors that go over shaved ice. Kona Ice, Inc. filed several lawsuits in September 2017 against franchisees of Tikiz Franchising, LLC alleging infringement of its patent related to the design of the Kona Ice truck.

MDL No. 2826 – In Re: Uber Technologies, Inc., Data Security Breach Litigation. Data breach litigation continues trending in MDL requests; here, two plaintiffs move for transfer of litigation over the Uber Technologies, Inc. data breach to the Northern District of California. As of the day prior to the March hearing session, the proposed MDL had 21 associated actions – at least twelve of which are putative class action lawsuits. Plaintiffs allege that Uber and other defendants violated state consumer protection statutes, breached express and implied contracts as well as its fiduciary duties and covenants of duty to act in good faith and fair dealing by failing to protect the private information of its 57 million customers and drivers. Even more egregious are allegations that Uber engaged in efforts to hide the breach and failed to reveal it to the public until 2017.