There’s an issue that we face repeatedly when we are opposing motions filed with the Judicial Panel on Multidistrict Litigation to coordinate cases. Sadly, we don’t have an answer; just an issue.

The issue arises when product liability plaintiffs file a motion seeking to coordinate. The defendant believes that its strategic interest is best served by dividing and conquering the enemy. The defendant will therefore file a brief opposing coordination.

But the plaintiffs have not simply requested coordination. They have also identified a specific proposed transferee district, and they have suggested transfer to a specific judge. What’s a defendant to do? If the defendant simply opposes coordination, it has not denied the propriety of the transferee district and judge. If the defendant loses the threshold issue of coordination, it may find that the cases have not simply been coordinated, but coordinated in a district and before a judge the plaintiffs view as being favorable.

This is high-stakes poker. The choice of transferee district makes a difference. For issues of federal law, the law of the transferee circuit will likely govern the coordinated proceedings. If Seventh Circuit law favors the defendant, but Ninth Circuit law favors the plaintiff, an awful lot rides on whether the cases are centralized in Chicago or Los Angeles.

The choice of transferee judge matters, too. We’re practicing lawyers, so we don’t write nasty things about judges in this blog. So we’ll simply repeat: even within a specific transferee district, choice of judge can matter.

The defendant could, of course, file a brief that both opposes coordination and adopts a fall-back position: If the cases are coordinated (which they should not be), then they should be sent to a certain district and assigned to a certain judge the defendant prefers. That puts the defendant’s preference of jurisdiction and judge on the table. Unfortunately, the fall-back position may give away the game. When the Panel sees that the defendant is advocating in favor of a particular transferee district, the Panel may decide that the defendant is not so violently opposed to coordination after all.

This is a tough nut to crack. How can the defendant effectively oppose coordination while at the same time suggesting its preferred transferee court?

Let us count the ways.

It won’t take long.

Frankly, we stop at two.

One alternative is to file a brief with the MDL Panel that only opposes coordination. This makes clear to the Panel that your client really does oppose coordination. During oral argument, however, you could present the step-back position that, if coordination is ordered, the defendant prefers a particular district court or judge.

Defendants often choose that tack, but it has its pitfalls. If the Panel has, before argument, tentatively decided to coordinate the cases and begun to make inquiries about who could serve as a transferee judge, the defendant’s input comes too late.

The other alternative is to file a brief that both opposes coordination and suggests a transferee district and judge. But, as we said, that weakens the argument opposing coordination.

We don’t like either solution, but we can’t come up with anything better.

What prompted this post was the brief that GlaxoSmithKline recently filed with the MDL Panel in the Avandia litigation. There, GSK’s brief devoted just one page to opposing coordination, one page to explaining why the plaintiffs’ choice of transferee district was illogical, and two pages to explaining why the Eastern District of Pennsylvania was, in fact, a preferred forum.

That’s not a bad strategic choice, although it suffers the problems that we discussed above. By making only a short argument against coordination, the MDL Panel may read this brief as not strongly opposing the need for coordination.

These days, the choice that GSK made in its Avandia brief may be the logical one. As has been explained elsewhere, the MDL Panel has, in recent years, increasingly chosen to coordinate product liability cases. See Mark Herrmann & Pearson N. Bownas, “Making Book on the MDL Panel: Will It Centralize Your Product Liability Cases?” BNA Class Action Litigation Report (Feb. 9, 2007). In the Avandia situation, although only six federal actions had been filed as of the date that GSK filed its brief, many more cases will probably have been filed by the time the MDL Panel hears argument on the motion. In that situation, GSK may have decided that coordination was essentially inevitable, and the more important issue was to express its preference of transferee court.

Unfortunately, we have no answers to this MDL conundrum; we can do no more than pose the question. When defendants are faced with this situation, they must chose the best of two bad alternatives, and they must then live with the result.