The County of Genesee et al v. McKinsey & Company, Inc.

Filing 43

ORDER DENYING MOTIONS FOR SUGGESTION OF REMAND by Judge Charles R. Breyer. Associated Cases: 3:21-md-02996-CRB, 3:21-cv-04386-CRB, 3:21-cv-05467-CRB. (crblc4, COURT STAFF) (Filed on 6/4/2024)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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IN RE: MCKINSEY & CO., INC.
NATIONAL PRESCRIPTION OPIATE
LITIGATION
_________________________________/

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United States District Court
Northern District of California

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This Order Relates To:

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The County of Westchester et al. v.
McKinsey & Company, Inc., Case No.
21-cv-05467-CRB

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MDL No. 3084 CRB
ORDER DENYING MOTIONS FOR
SUGGESTION OF REMAND

Re: Dkt. Nos. 687, 688

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The County of Genesee et al. v. McKinsey
& Company, Inc., Case No. 21-cv-04386CRB

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Political Subdivision Plaintiffs in two actions—County of Westchester et al. and
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County of Genesee et al.—ask the Court to issue a suggestion of remand of their cases to
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the JPML. The two cases, collectively, comprise the claims of 44 plaintiffs. All are
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political subdivisions of New York. In this Order, the Court will refer to the Westchester
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and Genesee plaintiffs collectively as the New York Plaintiffs. For the reasons that follow,
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the motions are denied.
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I.

BACKGROUND
The New York Plaintiffs’ cases were originally filed in New York state court.

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McKinsey then removed the cases to the Eastern District of New York, and the JPML
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transferred the cases here. Now that the vast majority of the Political Subdivision actions
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United States District Court
Northern District of California

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have settled (as have the actions brought by most of the other plaintiff groups), the Moving

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Plaintiffs say that the time has come to wind up centralized proceedings, at least for their

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cases. In particular, they say that (1) efficiency is no longer served by centralized

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proceedings, given the smaller number of actions that remain, and (2) a federal court in

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New York is better situated to analyze the state law issues that will be at the center of their

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case. In their reply brief, the New York Plaintiffs raise the issue of certain jurisdictional

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remand motions that they filed in the transferor court prior to centralization. As discussed

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at the hearing, the Court agrees that these jurisdictional issues should be decided promptly.

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A schedule has been set for their briefing. But the merits of those motions are separate

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from the merits of the New York Plaintiffs’ request for a suggestion of remand.

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II.

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LEGAL STANDARD
The MDL statute provides that the Panel ‘“shall . . . remand[]’” each action to the

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transferor district ‘“at or before the conclusion’” of pretrial proceedings. 28 U.S.C. §

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1407(a). When a party seeks remand “before the completion of centralized pretrial

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proceedings, the Panel generally remands ‘only upon a showing of good cause.’” In re

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Volkswagen “Clean Diesel” Mkg., Sales Pracs, and Prods. Liab. Litig., MDL No. 2672

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CRB (JSC), 2022 WL 4596628 at *1 (N.D. Cal. Feb. 23, 2022) (quoting In re. S. Cent.

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States Bakery Prods. Antitrust Litig., 462 F. Supp. 388, 390 (J.P.M.L. 1978)).

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In considering motions for suggestions of remand, “transferee courts apply the same

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guidelines the Panel itself would apply when deciding whether to order remand.” Arora v.

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Midland Credit Mgmt., Inc., MDL No. 2286 MMA (MDD), 2017 WL 3263110 at *1 (S.D.

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Cal. Aug. 1, 2017). “Generally, the decision to remand turns on the question of ‘whether

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the case will benefit from further coordinated proceedings as part of the MDL,’” and

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“[r]emand is appropriate when the discrete function performed by the transferee court has

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been completed.” In re Baycol Prods. Litig., 265 F.R.D. 453, 455 (D. Minn. 2008). “The

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party seeking remand prior to the conclusion of pretrial proceedings bears the burden of

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establishing that remand is warranted.” See In re Methyl Tertiary Butyl Ether (“MTBE”)

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Prods. Liab. Litig., No. 1:00-1898, 2019 WL 117302, at *2 (S.D.N.Y. Jan. 7, 2019).
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III.

DISCUSSION
Although the size of this MDL has diminished following the finalization of various

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class and non-class settlements, the New York Plaintiffs have not persuaded the Court that
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remand of their cases is appropriate at this time. Even with a smaller group of cases to
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manage, further centralized proceedings will continue to serve the basic purposes of
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multidistrict litigation.
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As an initial matter, the cases that remain here are not insubstantial, and they
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continue to share common issues of fact that make them amenable to coordinated
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proceedings. Including the New York Plaintiffs’ cases, there are six Political Subdivision

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actions still pending, representing the claims of 77 separate subdivisions from four states.
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In addition, the Court has denied in part McKinsey’s motion to dismiss the NAS Plaintiffs’
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United States District Court
Northern District of California

claims, and it appears that those cases will proceed to discovery. The MDL also contains a
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handful of individual personal injury/wrongful death actions. All of these actions concern
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the same common issues of fact related to McKinsey’s conduct that led the JPML to

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centralize these cases in the first instance. See In re McKinsey & Co., Inc., Nat’l
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Prescription Opiate Consultant Litig., 543 F. Supp. 3d 1377, 1378–79 (U.S. Jud. Pan.
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Mult. Lit. 2021).
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But even if the New York Plaintiffs’ actions were the only ones remaining, remand
would not necessarily be appropriate. See Wang, 2013 WL 3479507, at *3 (“The mere

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fact that pretrial proceedings have been concluded in some or most of the transferred cases
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does not justify remand of other cases initially transferred by the Panel. Even if the
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transferee court had disposed of all but one transferred case, the Panel may refuse to
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remand that single case to the transferor district because discovery still remained to be
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completed in that case.”) (quoting David F. Herr, Multidistrict Litigation Manual § 10:7

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(2012 ed.)); In re Integrated Res., MDL No. 897, 1995 WL 234975 at *4 (S.D.N.Y. Apr.
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21, 1995) (“The mere fact that all other cases in a consolidated litigation have been
terminated does not constitute ‘good cause’ as required by the prior decisions of the
Panel”) (internal citation omitted); In re CBS Color Tube Pat. Litig., 342 F. Supp. 1403,

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1405 (J.P.M.L. 1972) (“[W]e are not convinced by defendants’ arguments that an action, in

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which discovery is not yet completed, should be remanded simply because all other

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consolidated cases in the transferee court have been dismissed or terminated in some

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way.”).

United States District Court
Northern District of California

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That is because, first, there are two pending threshold motions—the Res

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Judicata/Release Motion and the Rule 12(b)(6) Motion to Dismiss—that concern common,

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potentially dispositive, pretrial issues and have already been extensively briefed. At the

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parties’ request, the Court stayed the motions pending their settlement negotiations. But

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now that the settlements have been struck, the most efficient course is going forward with

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deciding the motions—not kicking the can to other courts, where the motions would likely

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have to be re-briefed and re-argued in full. Indeed, remanding the cases would not only

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create inefficiencies, it would create a risk of conflicting pretrial rulings—one of the

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problems that multidistrict litigation is supposed to avoid. See, e.g., In re Keurig Green

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Mountain Single-Serve Coffee Antitrust Litig., 2021 WL 2983141, at *3 (“[R]etaining

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JBR’s case ensures that this case ‘avoid[s] inconsistent rulings,’ particularly as it pertains

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to Defendant's upcoming motions for summary judgment.”); In re CBS Color Tube Pat.

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Litig., 342 F. Supp. at 1404–05 (declining to remand following settlement of all but two

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MDL actions because of pending motions); In re Gypsum Wallboard, 340 F. Supp. 990,

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992 (J.P.M.L. 1972) (declining to remand when a motion for summary judgment was

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pending); In re Motor Fuel Temperature Sales Pracs. Litig., No. 07-MD-1840-KHV, 2012

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WL 1963350, at *3 (D. Kan. May 30, 2012) (denying suggestion of remand in part

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because unresolved motions were pending); In re WellPoint, Inc., No. MDL 09-2074 PSG

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(FFMx), 2015 WL 12744266, at *1-2 (C.D. Cal. Dec. 15, 2015) (declining to suggest

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remand following dismissal of “most of the plaintiffs” in the MDL because “upcoming

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motions would still benefit from MDL treatment” given court’s earlier examination of the

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applicable “legal framework” for the motions).

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Second, discovery has not been concluded, and the parties and the courts will

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continue to benefit from coordinated discovery proceedings. Discovery in the NAS
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United States District Court
Northern District of California

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Plaintiffs’ cases is set to begin in earnest, and, assuming McKinsey’s threshold motions do

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not end the Subdivision cases, much remains to be done in those actions, too. This

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includes the taking of fact and expert witness depositions—a type of discovery for which

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coordination is especially beneficial. Additionally, because a certain amount of discovery

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was already taken in this cases, Magistrate Judge Kim has already established various

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discovery protocols and gained a familiarity with some of the substantive issues that are

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likely to give rise to discovery disputes. So the prospect of further discovery also counsels

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against suggesting remand. See In re Countrywide Fin. Corp. Mortg.-Backed Securities

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Litig., 2014 WL 12778846 at *2 ( “Remand . . . would require the parties to conduct

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discovery on opposite coasts, resolving potential discovery disputes in different courts.”);

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In re MTBE Prods. Liab. Litig., 2019 WL 117302, at *2 (denying suggestion of remand

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where “common . . . discovery is underway in this case and is not scheduled to be

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completed until next year”); In re Volkswagen “Clean Diesel” Mkg., Sales Pracs., and

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Prods. Liab. Litig., 2022 WL 4596628 at *1 (declining to suggest remand in part to avoid

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duplicative, common discovery, which was ongoing).

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Third, with respect to both discovery and motion practice, “the Court has accrued

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significant familiarity with complex factual and legal issues” in these cases, and remanding

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the actions would squander the potential benefits of that experience. That, too, counsels

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against remand. See Wang v. Bear Stearns Companies, Inc., No. 11 Civ. 5643, 2013 WL

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3479507, at *3 (S.D.N.Y. July 10, 2023); In re MTBE Prods. Liab. Litig., 2019 WL

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117302, at *2.

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Finally, the fact that issues of New York law are important to resolving the New

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York cases is not a persuasive reason for remand. MDL courts routinely decide pretrial

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motions under the laws of multiple states. See, e.g., In re CVS Caremark Corp. Wage &

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Hour Emp. Pracs. Litig., 684 F. Supp. 2d 1377, 1378 (J.P.M.L. 2010) (“[I]t is ‘within the

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very nature of coordinated or consolidated pretrial proceedings in multidistrict litigation

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for the transferee judge to be called upon to apply the law of more than one state.’”)

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(quoting In re Air Crash Disaster at John F. Kennedy Int’l Airport on Jun. 24, 1975, 407 F.
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Supp. 244 (J.P.M.L. 1976)); In re Uber Techs., Inc., Passenger Sexual Assault Litig., MDL

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No. 3084, 2023 WL 6456588, at *2-3 (J.P.M.L. Oct. 4, 2023), supplemented, MDL No.

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3084, 2024 WL 41889 (J.P.M.L. Jan. 4, 2024). Nor does the fact that the New York

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Plaintiffs (and possibly also the remaining Illinois subdivisions) have unresolved

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jurisdictional objections support remanding the cases to the federal transferor courts.

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Indeed, the opposite is true. Those motions will turn largely on federal law, and they

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involve overlapping issues: McKinsey’s basis for removal in the New York Plaintiffs’

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cases is the same as one of its bases for removal in the Illinois cases.

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IV.

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United States District Court
Northern District of California

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CONCLUSION
For the foregoing reasons, the motions for a suggestion of remand of the County of

Westchester et al. and County of Genesee et al. actions are denied.

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IT IS SO ORDERED.

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Dated: June 4, 2024
CHARLES R. BREYER
United States District Judge

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