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`Case 3:21-md-02996-CRB Document 1 Filed 06/08/21 Page 1 of 6Case 3:21-cv-04512-CRB Document 12 Filed 06/08/21 Page 1 of 6
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`UNITED STATES JUDICIAL PANEL
`on
`MULTIDISTRICT LITIGATION
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`
` MDL No. 2996
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`
`
`IN RE: MCKINSEY & COMPANY, INC., NATIONAL
`PRESCRIPTION OPIATE CONSULTANT LITIGATION
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`
`
`TRANSFER ORDER
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`Before the Panel: McKinsey defendants1 move under 28 U.S.C. § 1407 to centralize this litigation
`in the Southern District of New York, where no action is pending but where one of the McKinsey
`defendants is based. McKinsey’s motion includes the seventeen actions listed on Schedule A, as
`well as 22 potentially-related actions pending in eleven districts.2
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`The parties’ positions on centralization vary, but the principal dispute among the parties
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`turns on whether to include these actions in the procedurally mature MDL No. 2804 – In re:
`National Prescription Opiate Litigation or, instead, create a new and separate MDL for actions
`against McKinsey. For the reasons discussed below, we find that creation of a new MDL for
`McKinsey-related claims is appropriate. Rather than transferring these cases to a judge who is
`new to the MDL No. 2804 litigation, we will select a judge who already is familiar with the
`contours of MDL No. 2804 by virtue of presiding over one of the cases remanded for trial in the
`transferor court at the suggestion of the MDL No. 2804 transferee judge.
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`Supporting transfer to MDL No. 2804 are the following: the MDL No. 2804 Plaintiffs’
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`Executive Committee, tribal plaintiffs in five Northern District of Ohio actions and three Northern
`District Ohio potential tag-along actions, plaintiffs in the Northern District of Ohio Montgomery
`County action and Teamsters Local 404 potential tag-along action, plaintiffs in two Western
`District of Washington actions, and plaintiffs in the Eastern District of New York Genesee County
`action.3
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`1 McKinsey & Company, Inc., McKinsey & Company, Inc. United States, and McKinsey &
`Company, Inc. Washington D.C (collectively, McKinsey).
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` 2
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` These actions, and any other related actions, are potential tag-along actions. See Panel Rules
`1.1(h), 7.1 and 7.2.
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` 3
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` The Western District of Washington plaintiffs also request exclusion from any new MDL, if the
`Panel decides to not include the McKinsey actions in MDL No. 2804. The Eastern District of New
`York plaintiffs oppose transfer before their motion to remand to state court is ruled upon.
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`Plaintiffs in the Western District of Kentucky action and five potential tag-along actions
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`support creating a McKinsey MDL in the Southern District of Illinois. Plaintiffs in the Western
`District of Kentucky action and the Southern District of Indiana Orange County and the Western
`District of Michigan Cannon Township potential tag-along actions specifically oppose inclusion
`of McKinsey cases in MDL No. 2804. Plaintiffs in the two Southern District of Illinois actions
`take no position on centralization, oppose inclusion in MDL No. 2804 and request that, if an MDL
`is created, the Panel order that the transferee judge rule on motions to remand to state court before
`the merits are explored. Finally, school board plaintiffs in two potential tag-along actions oppose
`creation of a new McKinsey MDL and suggest that their actions be allowed to proceed where they
`were filed.
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`After considering the argument of counsel,4 we find that centralization of these actions in
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`the Northern District of California will serve the convenience of the parties and witnesses and
`promote the just and efficient conduct of the litigation. The actions involve common factual issues
`arising from nearly identical questions about McKinsey’s role in providing advice to certain opioid
`manufacturers, most notably Purdue, in the form of sales and marketing strategies aimed at
`increasing sales of prescription opioid drugs. The actions are brought by cities and counties
`(eleven actions) and tribal governments and related tribal entities (six actions). Plaintiffs,
`individually (ten actions) and on behalf of putative statewide classes of cities and counties (seven
`actions), bring such claims against McKinsey entities as public nuisance, negligence, negligent
`misrepresentation, fraud, unjust enrichment and violation of consumer protection statutes.
`Plaintiffs in eight actions bring federal civil RICO claims. The actions are in their relative infancy.
`Centralization will eliminate duplicative discovery; avoid inconsistent pretrial rulings; and
`conserve the resources of the parties, their counsel and the judiciary.
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`This litigation concerns work McKinsey performed for Purdue and other MDL No. 2804
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`defendants, so we understand why some parties would think it logical for these actions to proceed
`in that MDL. Despite this factual overlap, we find merit in McKinsey’s argument that it will be
`prejudiced by having to join the three-and-a-half-year-old MDL No. 2804 at this late stage. Even
`though a multi-billion dollar global settlement may have been reached among certain defendants
`(i.e., several manufacturers and distributors), much work appears to remain in the MDL. Adding
`a relatively unique defendant such as McKinsey to an already exceedingly complex and
`contentious MDL may hinder the transferee judge’s ability to efficiently manage the range of cases
`now before him. With bellwether trials of pharmacy defendants slated for this year and beyond,
`as well as certain categories of claimants whose actions remain pending but have not yet
`significantly progressed, it is appropriate to establish a separate MDL for these relatively recent5
`claims brought against McKinsey.
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`Certain plaintiffs argue that transfer should not occur before their motion to remand to state
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`4 In light of the concerns about the spread of COVID-19 virus (coronavirus), the Panel heard oral
`argument by videoconference at its hearing session of May 27, 2021. See Suppl. Notice of Hearing
`Session, MDL No. 2996 (J.P.M.L. May 10, 2021), ECF No. 122.
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` All actions were filed in early 2021, and most were filed after McKinsey announced a nearly
`$600 million settlement with state Attorneys General and others in February 2021.
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`court is ruled upon. Others ask that the Panel instruct that the transferee judge rule on the remand
`motions before proceeding to the merits of plaintiffs’ claims. As we have long held, “remand
`motions can be presented to and decided by the transferee judge” in due course. See In re
`Prudential Ins. Co. of Am. Sales Practices Litig., 170 F. Supp. 2d 1346, 1347-48 (J.P.M.L. 2001).
`Similarly, any personal jurisdiction challenges McKinsey intends to make also can be presented
`to and decided by the transferee judge.6 Moreover, any unique aspects of the settlement agreement
`with Washington State can be accommodated by the transferee judge, if needed, or the actions can
`be returned to their transferor courts with a minimum of delay following a suggestion of remand
`issued by the transferee judge. See Panel Rule 10.1.
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`In the unique circumstances that are presented by this nationwide litigation, we are
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`persuaded that the Northern District of California is the appropriate transferee district for this
`litigation. In selecting Judge Charles R. Breyer as the transferee judge, we are choosing a jurist
`who is familiar with MDL No. 2804, as he was a member of this Panel when that docket was
`initially centralized (indeed, at oral argument in this matter, counsel for defendants quoted with
`approval Judge Breyer’s questions about the desirability of separate opioid-related MDLs during
`oral argument in MDL No. 2804). Notably, Judge Breyer also presides over a MDL No. 2804
`bellwether remand action, City and County of San Francisco, et al. v. Purdue Pharma, L.P., et al.,
`N.D. California, C.A. No. 4:18-7591, which is set for trial in December 2021. Presiding over City
`and County of San Francisco likely has afforded Judge Breyer granular insight into the federal
`opioid litigation that few other judges have obtained.7 Judge Breyer has presided over a total of
`eleven MDL dockets, and he possesses tremendous insight into the conduct of multidistrict
`litigation, which will without doubt benefit the parties and the courts. We are confident in Judge
`Breyer’s ability to steer this litigation on a prudent course.
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`6 We decline McKinsey’s invitation to revisit our decision in In re Delta Dental Antitrust Litig.,
`No. MDL 2931, 2020 WL 7382602, at *2 (J.P.M.L., Dec. 16, 2020). In Delta Dental, we
`considered and rejected the argument that Bristol-Myers Squibb Co. v. Superior Court of Cal., S.F.
`Cnty., 137 S. Ct. 1773 (2017) and recent Supreme court cases concerning personal jurisdiction
`“necessitates unraveling more than forty years of MDL jurisprudence” and reaffirmed that
`“jurisdiction in any federal civil action must exist in the district where it is filed. This does not
`change when an action is transferred under Section 1407. Parties can and do challenge jurisdiction
`in the transferor court after Section 1407 transfer (i.e., in the transferee court).” In re Delta Dental
`Antitrust Litig., No. MDL 2931, 2020 WL 7382602, at *2 (J.P.M.L., Dec. 16, 2020) (emphasis in
`original).
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` For instance, on September 30, 2020, Judge Breyer issued a 100-page opinion largely denying
`defendants’ motions to dismiss. See City and County of San Francisco, et al. v. Purdue Pharma,
`L.P., et al., N.D. California, C.A. No. 4:18-7591, doc. 285.
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`IT IS THEREFORE ORDERED that the actions listed on Schedule A and pending outside
`the Northern District of California are transferred to the Northern District of California and, with
`the consent of that court, assigned to the Honorable Charles R. Breyer for coordinated or
`consolidated proceedings.
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` PANEL ON MULTIDISTRICT LITIGATION
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`_______________________________________
` Karen K. Caldwell
` Chair
`
`Catherine D. Perry
`Matthew F. Kennelly
`Roger T. Benitez
`
`Nathaniel M. Gorton
`David C. Norton
`Dale A. Kimball
`
`6/8/2021
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`I hereby certify that the annexed
`instrument is a true and correct copy
`of the original on file in my office.
`
` ATTEST:
` SUSAN Y. SOONG
` Clerk, U.S. District Court
` Northern District of California
`
`by:
`
`Deputy Clerk
`Date:
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`IN RE: MCKINSEY & CO., INC., NATIONAL
`PRESCRIPTION OPIATE CONSULTANT LITIGATION
`
`
`
` MDL No. 2996
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`SCHEDULE A
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`Southern District of Florida
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`Southern District of Illinois
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`THE CITY OF PEMBROKE PINES, FLORIDA v. MCKINSEY & COMPANY, INC.,
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`C.A. No. 0:21−60305
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`ST. CLAIR COUNTY, ILLINOIS v. MCKINSEY & COMPANY, INC., ET AL.,
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`C.A. No. 3:21−00251
`MADISON COUNTY, ILLINOIS v. MCKINSEY & COMPANY, INC., ET AL.,
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`C.A. No. 3:21−00254
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`GREEN COUNTY FISCAL COURT, ET AL. v. MCKINSEY & COMPANY, INC.
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`UNITED STATES, ET AL., C.A. No. 1:21−00035
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`THE COUNTY OF GENESEE, ET AL. v. MCKINSEY & COMPANY, INC.,
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`C.A. No. 2:21−01039
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`YUROK TRIBE v. MCKINSEY & COMPANY, INC., C.A. No. 1:21−45026
`HOOPA VALLEY TRIBE v. MCKINSEY & COMPANY, INC., C.A. No. 1:21−45027
`KENAITZE INDIAN TRIBE, ET AL. v. MCKINSEY & COMPANY, INC.,
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`C.A. No. 1:21−45028
`FEATHER RIVER TRIBAL HEALTH, INC., ET AL. v. MCKINSEY & COMPANY,
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`INC., C.A. No. 1:21−45032
`SWINOMISH INDIAN TRIBAL COMMUNITY v. MCKINSEY & COMPANY, INC.,
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`C.A. No. 1:21−45033
`MONTGOMERY COUNTY OHIO, ET AL. v. MCKINSEY & COMPANY, INC.,
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`C.A. No. 1:21−45037
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`CITIZEN POTTAWATOMIE NATION v. MCKINSEY & COMPANY, INC.,
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`C.A. No. 5:21−00170
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`Western District of Kentucky
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`Eastern District of New York
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`Northern District of Ohio
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`Western District of Oklahoma
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`Western District of Washington
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`CITY OF SHAWNEE, ET AL. v. MCKINSEY & COMPANY, INC., C.A. No. 5:21−00174
`BOARD OF COUNTY COMMISSIONERS OF KAY COUNTY, ET AL. v. MCKINSEY
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`& COMPANY, INC., C.A. No. 5:21−00176
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`KING COUNTY v. MCKINSEY & COMPANY, INC. UNITED STATES, ET AL.,
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`C.A. No. 2:21−00221
`SKAGIT COUNTY v. MCKINSEY & COMPANY, INC. UNITED STATES, ET AL.,
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`C.A. No. 2:21−00226
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`THE COUNTY COMMISSION OF MINGO COUNTY, ET AL. v. MCKINSEY &
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`COMPANY, INC., C.A. No. 2:21−00079
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`Southern District of West Virginia
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