“The stats show that about half, or little bit more than half, of cases in the federal courts are MDLs.”
Multidistrict litigation is fast permeating federal courts, according to Podhurst Orseck partner Peter Prieto. He’s landed another settlement agreement in Miami’s ongoing multidistrict litigation over defective Takata Corp. air bag inflators, which prompted the largest car safety recall in U.S. history.
Volkswagen Group of America Inc. has agreed to shell out $42 million, making it the eighth of 11 automaker defendants to settle with consumers over its use of Takata air bags in more than 1.3 million Volkswagen and Audi vehicles.
Prieto is court-appointed lead counsel in the Takata MDL — a form of litigation he said is becoming especially prevalent.
“The stats show that about half, or little bit more than half, of cases in the federal courts are MDLs,” Prieto said. “It’s becoming a common way of dealing with either large numbers of class actions filed around the country or a large number of mass tort cases filed around the country. Both those kinds of cases have become more common, and the way to get those efficiently resolved in front of one judge is through an MDL.”
That means now could be the time for South Florida to shine, in Prieto’s view.
“I think it’s about time the judges in South Florida receive more MDLs,” he said. “We have a very sophisticated judiciary and a very sophisticated bar, and that’s become obvious since the judges in our district are receiving more MDLs than ever before.”
The Takata MDL was born in February 2015 and the plaintiffs’ leadership team was appointed in 2017. Since then, they’ve secured more than $1.5 billion in settlements. Japan’s Takata paid $1 billion to resolve the U.S. Justice Department’s criminal probe over the air bags, and its U.S. subsidiary TK Holdings Inc. filed for Chapter 11 bankruptcy.
Which automakers have settled Takata air bag litigation so far?
Which automakers are still litigating?
It’s one of the biggest MDLs in the country and has involved more than 320 depositions so far.
“This litigation was somewhat unique in that we always had two goals, two objectives, which were that any settlement would, No. 1, try to remove defective inflators from our client’s vehicles, and No. 2, we wanted to provide our class members cash compensation for buying a vehicle with this kind of a defect. And we did that,” Prieto said.
VW and Audi’s attorneys include Gerald E. Greenberg, Adam Michael Schachter and Mikayla Kiersten Espinosa of Gelber Schachter & Greenberg in Miami and Robert J. Giuffra Jr. and Suhana S. Han of Sullivan & Cromwell in New York. Takata’s lawyers are Stephen J. Krigbaum and Michael D. Sloan of Carlton Fields’ West Palm Beach office, and Keith A. Teel and Shankar Duraiswamy of Covington & Burling in Washington.
They did not immediately respond to requests for comment.
Prieto said the settlement with VW, which is still subject to court approval, came once the parties realized it was time to either try the case or resolve it.
“Both sides agreed to settle the case because, as we all know, whether you’re a lawyer or litigant, there are risks to both sides, and after three years of litigation and lots of time, effort and expenses, we thought that a settlement now was appropriate and the settlement that we reached was reasonable,” Prieto said.
‘No secret sauce’
MDLs are by nature large and complex, but Prieto said he’s found that old-fashioned elbow grease is what it takes to be successful.
“There’s no secret sauce or secret science to litigating these complex cases. It just requires a lot of time, hard work and effort, and eventually the cases either get resolved or they get tried,” Prieto said. “I think the most important thing is to give it your all, be patient and be focused. Keep moving forward and litigating as hard as you can, but as professionally as you can.”
One concern plaintiffs attorneys have in the MDL space is what Prieto describes as excessive rule making. One movement seeks to add interlocutory appeals for certain issues in MDLs; for instance, which Prieto argues would cause unnecessary delays.
“The existing rules for multidistrict litigation, including the rules of civil procedure, provide sufficient rules, discretion and authority for federal judges to handle MDLs,” Prieto said. “I don’t believe any additional rules are necessary. We’ve got great federal judges in this district and they’re able to handle MDLs with the existing rules that they have.”
Litigation is ongoing against Mercedes-Benz, General Motors Co. and Chrysler’s parent company, FCA North America Holdings Co., which, along with VW, were hit with lawsuits in 2018. After expert discovery, the plaintiffs plan to file motions for class certification. U.S. District Judge Federico A. Moreno is presiding over the litigation.
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