Consolidating multiple complex litigations in a single forum—at least for pretrial purposes—offers parties, particularly defendants, considerable benefits in terms of efficiency and cost. But putting all one’s litigation eggs in a single basket concentrates risk in one place as well. Although the rules governing multidistrict litigation generally permit transfer back to the original forum for trial, and thus offer defendants the chance to diffuse litigation risk if desired, not all cases can be transferred back to their original jurisdictions, and a party, through litigation conduct, can waive its right to transfer in those cases where the rules would otherwise have permitted it. Apple’s recent experience in multidistrict antitrust litigation before Southern District Judge Denise L. Cote is a case in point.
‘In re Electronic Books’
Apple was one of several defendants in In re Electronic Books Antitrust Litigation,1 a multidistrict antitrust litigation consisting of four related lawsuits or groups of lawsuits alleging price-fixing for certain e-books: a civil action brought by the U.S. Department of Justice against Apple and a number of e-book publishers (the Justice Department action); a settlement action brought against certain publishers by 49 states and five territories (settlement action); a litigated action brought against Apple and certain other publishers by 33 states and territories (states’ action); and a consolidated class action brought by private plaintiffs against Apple and the publisher defendants.
Transfer by Joint Panel
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