By Amanda Bronstad, from The National Law Journal

A federal judicial panel has picked U.S. District Judge Charles Breyer in California’s Northern District to handle the litigation against Volkswagen A.G. over its emissions scandal.

The U.S. Judicial Panel on Multidistrict Litigation, which heard arguments last week on where to transfer more than 500 class actions filed by Volkswagen consumers in 60 federal courts, acknowledged in its Tuesday order that several of the districts bore some geographical connection to the litigation, but it appeared persuaded by Breyer’s experience in handling MDLs.

In choosing California’s Northern District, the panel rejected arguments from Volkswagen and from most plaintiffs lawyers who had sought venues in other parts of the country. Breyer, who is the brother of U.S. Supreme Court Justice Stephen Breyer, has handled nine MDLs, according to Tuesday’s order, and currently presides over MDL price fixing litigation against the world’s largest airlines.

Breyer, the panel noted in its order, is “a jurist who is thoroughly familiar with the nuances of complex, multidistrict litigation,” adding that some of those matters “involved numerous international defendants.” MDL Panel Chairwoman Sarah Vance wrote the order. Breyer, who sits on the MDL panel, did not participate in the decision.

The MDL panel, in selecting the California, was not convinced by arguments from Volkswagen, which initially filed court papers supporting either the Eastern District of Michigan or the Eastern District of Virginia. Volkswagen dropped the latter venue at oral arguments last week, according to the order.

“We have received the order of the United States Judicial Panel on Multidistrict Litigation, and we will vigorously defend the company in these cases,” wrote Volkswagen spokeswoman Jeannine Ginivan.

At the same time, the MDL panel rejected arguments from most of the plaintiffs attorneys, who pushed for venues in 28 districts. Although California was a favored venue, many had put their weight behind districts in Michigan, New Jersey, Virginia and Tennessee.

The vast majority of cases against Volkswagen are nationwide class actions filed by consumers alleging they were duped into paying premium prices for “clean diesel” cars that the U.S. Environmental Protection Agency has said emit as much as 40 times the standard for nitrogen oxides. Volkswagen has admitted that 11 million vehicles, including 482,000 cars in the United States, have a “defeat device” in them designed to cheat emissions tests.

In its order, the MDL panel noted that one-fifth of the Volkswagen cases had been filed in California, with 30 in the Northern District of California.

Still, most plaintiffs lawyers advocating for California had favored the Central District of California, where U.S. District Judge James Selna oversaw the sudden acceleration litigation against Toyota Motor Corp. None had suggested Breyer.

Eric Gibbs, a partner at San Francisco’s Girard Gibbs, who attended the MDL panel’s hearing and filed court papers advocating for either the northern or central districts of California, said the order showed the importance of sending MDLs to an experienced judge. “The panel was searching for that type of judge: seasoned, particularly in large MDL matters with docket conditions that could accommodate what could be a very burdensome case for a shorter period of time. They figured out that Judge Breyer fit that bill, and I doubt there’s anyone in the country who would disagree.”

The Volkswagen cases have moved through the courts at a frenetic pace. In New Jersey and Michigan, federal judges already had ordered immediate settlement discussions. In addition, Volkswagen took the unusual step of asking the MDL panel to issue its transfer order prior to oral arguments, which took place Dec. 3 in New Orleans.

Gibbs said the fast pace of the litigation might explain why the MDL panel took less than a week to issue its order. “Volkswagen for the most part has conceded liability, so everyone recognizes this is a case that ought to move quickly, and I think the panel’s early order reflects that general assessment,” he said.

Class action critic Ted Frank, founder of the Center for Class Action Fairness, in a rare move, filed an amicus brief before the MDL panel arguing for U.S. District Judge William Alsup of the Northern District of California, who has a history of critiquing class action settlements. Frank, whose group is now part of the Competitive Enterprise Institute, had said that the judge overseeing the litigation should ensure fairness to all class members when evaluating a predicated settlement.

In response to Tuesday’s ruling, Frank wrote in an email: “We were less concerned about geography and more about considering the interests of absent class members, and the transfer order didn’t mention that issue. But Judge Breyer is not one to blindly rubber-stamp settlements.” He added, “We look forward to filing an amicus brief before him sometime this month suggesting ways to structure the counsel selection process.”

IMAGE: Credit: iStockphoto.com

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