There was once a musician from Michigan who rapped that “the FCC won’t let me be.” This was in the context of claiming that his songs were only permitted to be played over this thing called radio with edits that he apparently found unacceptable. In Cyr v. Ford Motor Co., No. 345751, 2019 WL 7206100 (Mich. App. Dec. 26, 2019), the Court of Appeals of Michigan tackled two issues on appeal: (1) denial of summary judgment sought for a governmental authorization exemption under the Michigan Consumer Protection Act and (2) denial of dismissal of nonresident claims under forum non conveniens, a doctrine often shortened to FNC. While both lower court decisions were reversed, we will focus on the latter, consistent with our malapropism-inspired title.
It is usually very hard to win on FNC, largely because it is discretionary, the plaintiff typically gets deference for her choice of venue, and the venue need not be the best venue to be an appropriate venue. When it comes to litigation tourism that features lots of different plaintiffs from around the country crammed together in one case, FNC still has a role. Cyr is not a drug or device case, but its facts sound like some of our litigations on steroids. The decision also injects a good bit of common sense into the process. Although Michigan advertises to attract vacationers, its intermediate appellate court does not want to become a destination for litigation tourism against one of its big local companies.
The facts related to the FNC analysis are as follows. More than 12,000 people opted out of a class action related to allegedly defective transmissions in two Ford vehicles and decided to sue. More than 100 of those sued in Cyr in state court in Michigan and the rest were spread among 82 other cases. They hailed from every state, Puerto Rico, and Canada and alleged a range of claims under state and federal law. The defendant moved to dismiss all the non-Michiganders. The trial court applied the well-known factors for public and private interests in FNC, complete with deference to the plaintiffs’ choice of Ford’s home state as the forum, and denied the motion.
Before we get to the appellate court’s reasoning in reversing, we pause to think about the big picture here. Another malapropism for the defendant in serial product liability litigation to ponder might be “To scatter, or not to scatter, that is the question.” Defending 83 cases in your backyard, even with 12,000 plaintiffs, is a big task, but it pales in comparison to the prospect of defending thousands of cases in courts around the country. A number of considerations go into taking the step of trying to sever and scatter these multi-plaintiff cases, including the burden on the plaintiffs’ lawyers, the attrition rate attendant to re-filing, the likelihood of re-filed individual cases ending up in federal court (and maybe an MDL), avoiding a particular judge or jury pool, and generally not wanting to put all your eggs in one basket, even if the basket is local to you. These considerations certainly apply to big drug and device litigation. While tighter limits on personal jurisdiction have helped to curtail the sort of litigation where the defendant faces a bunch of cases in a state court in a state where neither it nor most of the plaintiffs reside, multi-plaintiff actions in state court in a state where the defendant resides is still a thing. FNC, if the defendant is prepared to accept the result of winning, is still a significant tool for those defendants.
One of the public interest factors for FNC is “[c]onsideration of the state law which must govern the case.” Whereas the trial court concluded Michigan law would apply to all the state law claims that the plaintiffs alleged, regardless of where any plaintiff resided or purchased her car, the appellate court noted that the choice of law for contract-based claims like express warranty can turn on the provisions of the contract. Here, each sale involved an “express warranty booklet” that said the law of the state of sale would govern the choice of law for warranty claims. Manufacturers of prescription medical products are unlikely to have contractual relationships with the individuals who end up suing them, let alone provisions that will specify the state of purchase as the applicable law. The rest of the decision, however, has broader application.
Noting the number of cases, parties, and claims, the court chose not to endorse centralization as the way to maximize efficiency:
The sheer volume of individual claims would make the case difficult to manage, and the choice-of-law implications will only complicate matters. Standing alone, the breach-of-warranty claims would require the trial court to apply the contract law of dozens of other jurisdictions. That would be an exceedingly difficult task for an appellate court; it would likely prove to be an impossible one for the trial court. Moreover, we fail to see how residents of other states or other nations, who purchased vehicles in other jurisdictions, can avail themselves of statutory claims related to those purchases under Michigan law. Such novel questions of law are bound to arise in mass litigation like this when it is pursued in a single forum, but there would be no such questions if the nonresident plaintiffs sought recourse to the courts of their own respective states under local law. As a practical matter, given that plaintiffs’ contractual claims are subject to the law of the jurisdiction where the subject vehicles were purchased or leased, adjudication of all of their claims in those fora would be far more efficient. It would be far easier for a court in each state to apply its local contract law than it would be for one court in this state to independently research and apply the law of all of the others.
Id. at *7. Efficiency is not the only consideration in weighing public interest:
Also, although Michigan may have a vested interest in adjudicating the noncontractual claims against Ford in this action, it seems that the nonresident plaintiffs’ home jurisdictions have at least an equal stake in adjudicating controversies that affect their citizens’ rights[. T]his state also has an interest in dissuading this sort of mass automotive litigation from habitually clogging our court system. Therefore, we conclude that the public-interest factors, on the whole, clearly favor resolution of the nonresident plaintiffs’ claims in their home fora rather than this one.
Id. (omitting footnote). While some states certainly welcome large numbers of out-of-state plaintiffs against resident defendants as a source of revenue—or to gain a high spot on some infernal list—the court says Michigan’s interest is in “dissuading this sort of mass automotive litigation from habitually clogging our court system.”
After determining that FNC was decided wrongly below, the appellate court elected to reverse rather than simply vacate and remand for a do-over. Dismissing the non-resident plaintiffs and letting them re-file where they reside was so strongly preferred by the court’s assessment of the public interests that any anticipated complaints about private interests would need to yield.
In our view, however, reversal is warranted because the public-interest factors weigh so heavily in favor of applying forum non conveniens that a decision to the contrary would necessarily yield a result outside the range of reasonable and principled outcomes. Put simply, no matter what interest the roughly 12,000 plaintiffs may have in resolving their claims in Michigan rather than their home jurisdictions, those private interests are outweighed by this state’s public interest in avoiding the related administrative difficulties. Also, as a pragmatic matter, we are unpersuaded by plaintiffs’ contention that forcing them to pursue this litigation in their home fora would result in undue hardship. Plaintiffs had an opportunity to resolve their claims in this action via a national class action, at minimal personal expense of time and money. They instead opted out of the class action, thereby preserving their right to pursue their individual claims against Ford on an individual basis. Plaintiffs will not now be heard to complain that it is unfair to deprive them of the opportunity to consolidate all of their individual claims in one action in this state. In litigating these claims on a less massive basis in their home fora, they will merely be faced with the same hardships that generally face litigants as a matter of course.
Id. As our liberal block-quoting suggests, we could not have said it better. The only thing missing is to recognize the role of the plaintiffs’ lawyers in all of this. The individual plaintiffs are unlikely to have played a role in where, when, or how they sued, but you can be rest assured that their lawyers picked a path to what they thought was most likely to result in the biggest payday with the least effort.