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After recent posts on the AHM (or Hippo) litigation, we read the excellent FDA reply brief and considered yet another post on the subject.  With the oral argument before the Fifth Circuit yesterday and more briefs and decisions to come, we elected to deal with a topic that was not quite so weighty.  In some ways, you cannot get much farther from the issues in medication abortion litigation to a decision on transfer of venue in serial litigation over the labeling of certain over-the-counter medications.  In other ways, the issues overlap quite a bit.  Venue can really matter.  Getting before the particular district judge who decided AHM—instead of any of the other 672 district judges in the country—was surely part of the plaintiffs’ strategy in AHM.  If that case had been transferred to the District of Maryland, where APA challenges to FDA actions are usually decided, then we might have expected very different district court rulings and a very different panel in the Fourth Circuit for any appeal.

Plaintiffs in consumer fraud cases, like in product liability litigation, surely try to game where their cases are heard.  In addition, while state law claims in consumer fraud cases about FDA regulated medical products can run smack into preemption and the AHM case involved only federal law “claims,” both hinge on invalidating or ignoring FDA decisions.  (We could go a step further and note the big FDA news from last week relates to the possibility that progestin-only oral contraceptives will become available OTC.  Although progestin-only hormonal contraceptives have not been the subject of as much product liability litigation as combination hormonal contraceptives, OTC availability will surely spawn a range of litigation.)

Meza v. Procter & Gamble Co., No. EDCV 23-91 JGB (SHKx), 2023 WL 3267861 (C.D. Cal. Apr. 27, 2023), is one of a number of challenges to labeling certain OTC medications as “non-drowsy.”  We have written on how one of these resulted in express preemption because the monograph called for labeling that was different than what the plaintiff urged.  Meza involved a well-known family of OTC cold, cough, and flu products that contain the same cough suppressant, dextromethorphan.  Apparently, one particular plaintiff firm has been filing and dismissing cases around the country that assert the same basic claims against the manufacturers of any “non-drowsy” OTC medications containing dextromethorphan.  We have been fighting against and writing about litigation tourism for a really long time, but we can say this litigation as a whole entails some of the most blatant forum shopping we have seen.  So blatant, in fact, that a case was transferred from the district (the division within the district, even) where the plaintiff lives and bought defendant’s product to the district where the defendant is headquartered.  That is not something you see every day.

Meza sought class treatment—nationwide and state-specific—for people allegedly duped into purchasing these well-known products because the labeling said “non-drowsy,” even though it also said “may cause drowsiness.”  (We suspect that most people who shop for cold and cough medication have an understanding that the “nighttime” versions have antihistamines and the “daytime” or “non-drowsy” versions do not.  A similar percentage of potential purchasers probably also knows that dextromethorphan can make you pretty loopy, especially if you exceed recommended doses—see the opening scene in Stripes.)  One thing refreshing about the treatment of venue in Meza is that the court properly focused on the plaintiff’s counsel, which had brought more than a dozen similar class actions around the country, rather than the plaintiff, who they apparently recruited so that they could bring Meza where they brought it.  This is clearly one of those situations where the focus on the plaintiff’s counsel as decision makers and actors provides a better picture of what is really going on.

What was going on was that Clay, a similar case against this defendant, was brought by these lawyers in the SDNY in 2021, but was dismissed right after these lawyers dropped the appeal of the preemption decision from the same district that we mentioned above.  A few days after that, Meza was filed in the same district where a judge had previously rejected preemption in a similar case these same lawyers had filed against another defendant.  In fact, the Meza plaintiff purchased defendant’s product within the district after the dueling decisions had come down.  The plaintiff lawyers had a similar case against yet another defendant in the SDNY dismissed when the judge followed the prior SDNY decision over the CD Cal decision.  Rather than move to dismiss Meza, the defendant moved to change venue to the Southern District of Ohio.  While that was pending and soon after the second SDNY decision, the Meza plaintiff amended her complaint in an attempt to stick in the CD Cal and avoid preemption.  Got it?

The rules for transfer of venue under 28 U.S.C. § 1404(a) are somewhat fuzzy and within the discretion of the district court.  There is also an inference that the plaintiff’s choice of forum holds absent a strong showing to the contrary.  2023 WL 3267861, *3.  However, there is a growing body of law that “forum shopping” is a good reason to reject plaintiff’s choice.  Id.  The trick is to distinguish what is forum shopping from what is a legitimate choice of forum.  In our experience, litigation tourists stand out like, well, tourists and should be subject to transfer of venue under 1404 if they are not dismissed for lack of personal jurisdiction.  Even when the same named plaintiff is not bouncing around between courts, there can be “an equally strong inference of forum shopping when parallel actions are filed by the same law firm, and such strategic machinations by plaintiff’s counsel are equally discouraged under Section 1404(a).”  Id. at *4.  Rather than deny that the case was essentially refiled with a different purported class rep to avoid an adverse ruling in the SDNY, plaintiff’s counsel argued that the inclusion of California state consumer protection claims (instead of New York consumer protection claims) made Meza different than Clay.  The Meza court rejected plaintiff’s argument, noting that “the core allegations in this action are copied and pasted verbatim from the complaint in Clay,” that the “substance of the lawsuits appear to be identical,” and that “[c]ases need not be identical for a court to draw an inference of forum shopping from them.”  Id.  Plaintiff’s counsel had also voluntarily dismissed at least five other cases against other manufacturers of “non-drowsy” products in response to motions to dismiss.  Id. at *5.  In addition, even though plaintiff’s counsel maintained two other “non-drowsy” SDNY cases after the first preemption ruling, the Meza court saw this as “judge shopping,” which was just as bad.

Plaintiff’s response was essentially the schoolyard response:  “no, you are the forum shopper.”  The defendant had not sought to change venue in Clay and it had an adverse ruling in the CD Cal that would be worth avoiding.  However, the Meza court rejected that argument, because the defendant did not have evidence of plaintiff’s counsel’s forum shopping before the dismissal in Clay and it was seeking transfer to its home district, not to the SDNY.  Id.  Altogether, there was clear evidence that plaintiff’s counsel was forum shopping and, “since this is a putative class action, and a nationwide one at that, the Court defers even less to Plaintiff’s chosen forum.”  Id. at *6.  Thus, transfer “would serve as a useful deterrent to Plaintiff’s forum shopping.”  Id.  The other factors, which generally weighed in favor of transfer, largely involved case-specific evaluations that are less interesting to the larger issues here.  However, the fact that plaintiff sought a nationwide class action—and she had purchased the defendant’s products so she could replace a prior purported class rep—weighed against there being greater ties between the parties and the CD Cal than between the parties and the SD Ohio.  Id. at *7-8.  So, the case was transferred to the SD Ohio, where absent another voluntary dismissal there will likely be a ruling on a motion to dismiss based on preemption.

If you are like us, then you might be wondering how these plaintiff lawyers get away with all of these dismissals without prejudice after the defendant has filed its motion to dismiss, among other things.  Well, there is a bit of a loophole in Fed. R. Civ. P. 41.  Until the defendant has answered or moved for summary judgment, the plaintiff can voluntarily dismiss without prejudice without the defendant’s agreement, the court’s permission, or any payment of the defendant’s fees.  A motion to dismiss does not count, and many defendants will move to dismiss on preemption up front, and without an answer or any discovery, to help reduce the costs of litigation.  When this happens, the plaintiff lawyers can play the games described above.  However, defendants should not forget about the option to seek costs of the prior action “[i]f a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant.”  Fed. R. Civ. P. 41(d).  While this only applies if it is the same plaintiff, nothing deters this version of forum shopping quite as much as footing the defendant’s bills.