1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

IN RE: XYREM (SODIUM OXYBATE)

10 ANTITRUST LITIGATION Case No. 20-md-02966-RS

11

ORDER DENYING MOTIONS FOR

12 This Document Relates To: All Actions SUGGESTION OF REMAND 13 14

15 Pursuant to Judicial Panel of Multidistrict Litigation (“JPML”) Rule 10.1(b)(i), 28 U.S.C. 16 § 1407, and Local Civil Rule 7-1, Plaintiff United HealthCare Services, Inc. (“United”) and 17 Plaintiffs Blue Cross and Blue Shield of Florida, Inc., and Health Options, Inc. ( “Florida Blue”) 18 move for an order suggesting that the JPML remand their respective cases to the transferor courts 19 from whence they came. Because this court, acting as transferee, has resolved all summary 20 judgment and Daubert motions, United and Florida Blue (together, “Plaintiffs”) contend that the 21 pretrial proceedings for which their actions were transferred and coordinated have concluded. 22 Defendants Jazz Pharmaceuticals, Inc., Hikma Pharmaceuticals USA Inc., and their 23 affiliates (“Defendants”) oppose Plaintiffs’ remand motions, arguing that pretrial proceedings 24 remain ongoing. They specifically highlight anticipated “substantive motions in limine on issues 25 related to those briefed in the parties’ Daubert and summary judgment motions,” which they say 26 will go beyond questions about “whether specific evidence or testimony should be admitted at 27 trial.” Defs. Opp. Br., Dkt. No. 862 at 1–2. 1 Because pretrial proceedings remain ongoing, Plaintiffs’ motion is denied. By law, the 2 JPML must remand transferred actions to the transferor courts “no later than the conclusion of 3 pretrial proceedings in the transferee court.” Lexecon Inc. v. Milberg Weiss Bershad Hynes & 4 Lerach, 523 U.S. 26, 36–37 (1998); see also 28 U.S.C. § 1407(a) (conferring MDL jurisdiction “for coordinated or consolidated pretrial proceedings”). Yet, courts have interpreted the phrase 5 “pretrial proceedings” broadly so as to encompass, inter alia, motions in limine. See 15 Charles 6 Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. § 3866 (4th ed. 2024) (“Transferee courts 7 may decide . . . .motions in limine[.]); see also In re Parmalat Sec. Lit., No. 04-md-1653-LAK, 8 2007 WL 1169217, at *2 (S.D. N.Y. 2007) (transferee court ruling on motions in limine). 9 Plaintiffs cite In re: Cathode Ray Tube Antitrust Litigation, No. 07-cv-5944-JST, 2017 WL 10 8676440 (N.D. Cal. Apr. 5, 2017) for the proposition that pretrial proceedings conclude once 11 Daubert and summary judgment motions are dispatched. Although that court granted motions to 12 remand, it had previously ruled on various pretrial motions in limine. See, e.g., In re: Cathode 13 Ray Tube Antitrust Litigation, No. 07-cv-5944-JST, Dkt. No. 4982 (Oct. 26, 2016) (ruling on 14 motions in limine pertinent to 10 transferee actions, prior to granting remand motions). Thus, 15 contrary to Plaintiffs’ arguments, the notion of a transferee court retaining antitrust actions through 16 the resolution of common issues raised by motions in limine is hardly novel. 17 It is, however, more efficient—the entire point of MDLs. See In re Korean Air Lines Co., 18 642 F.3d 685, 698 (9th Cir. 2011) (explaining that the function of MDL procedure is “to promote 19 efficiency in a context involving the juggling of dozens or thousands of independent cases”). 20 Even setting aside the motions in limine that Defendants anticipate, ongoing docket activity makes 21 clear that this MDL action continues to concern questions common to the individual actions it 22 comprises. See Dkt. No. 876 (Feb. 7, 2025) (motion to preclude Defendants from introducing 23 certain evidence). Resolving common issues is “among the reasons for the existence of 24 coordinated and consolidated pretrial proceedings,” which “enable[] a single judge, who often is 25 steeped in the intricacies of complex litigation, to bring that knowledge to bear and avoid[] 26 inconsistent results in trial courts.” In re Parmalat Sec. Litig., 2007 WL 1169217, at *2. 27 1 Plaintiffs also highlight a stipulated briefing schedule from May 2024 in which the parties 2 || agreed that their actions were subject to remand and “outside the scope of . . . the accompanying 3 schedule.” Dkt. No. 687 at 2. Because the schedule featured dates for motions in limine, 4 || Plaintiffs reason, Defendants’ agreement that Plaintiffs’ actions were “outside the scope” 5 || effectively conceded that any such motions in Plaintiffs’ actions would take place in the transferor 6 || courts. Defendants respond that, following the continuance of the trial date, the earlier stipulation 7 is now moot. They also note the extent to which Plaintiffs participated in some of the pretrial 8 exchanges, contrary to the stipulated schedule. At bottom, Defendants say, they agreed only that 9 || Plaintiffs may remand their case eventually—not that remand would follow whenever Plaintiffs 10 || wanted. 11 The stipulated briefing schedule does not require remand. Ultimately, when “pretrial 12 || proceedings have not been concluded, the question of whether remand is appropriate is left to the 5 13 court’s discretion and generally turns on the question of whether the case will benefit from further 14 || coordinated proceedings as part of the MDL.” Jn re Portfolio Recovery Assocs., LLC, Tel. 15 Consumer Prot. Act Litig., 2012 WL 1899798, at *1 (S.D. Cal. May 24, 2012). Whether a 16 || Defendants properly preserved their right to oppose Plaintiffs’ motions is, frankly, irrelevant. 3 17 What matters is whether continued consolidation will benefit the case. Because it will, Plaintiffs’ 18 || motions are denied. 19 20 21 IT IS SO ORDERED. 22 23 Dated: February 28, 2025 24 25 ICHARD SEEBORG _ Chief United States District Judge 26 27 98 ORDER DENYING MOTIONS FOR SUGGESTION OF REMAND . CASE No. 20-md-02966-RS