Opinion
MDL No. 2013.
February 11, 2009.
Before JOHN G. HEYBURN II, Chairman, J. FREDERICK MOTZ, KATHRYN H. VRATIL, W. ROYAL FURGESON, JR., ROBERT L. MILLER, JR., DAVID R. HANSEN*, and FRANK C. DAMRELL, JR., Judges of the Panel.
TRANSFER ORDER
Before the entire Panel : Defendant Federal National Mortgage Association ("Fannie Mae"), with the consent of all Fannie Mae officer and director defendants and underwriter defendants, has moved, pursuant to 28 U.S.C. § 1407, for coordinated or consolidated pretrial proceedings of this litigation in the Southern District of New York. Plaintiff in the District of District of Columbia action does not oppose the motion. Plaintiff in the District of New Jersey action requests that the Panel delay transfer of the District of New Jersey action until his pending motion to remand to state court is decided.
Judge Hansen took no part in the decision of this matter. At oral argument, it was announced that four of the six other Panel members have interests which would normally disqualify them under 28 U.S.C. § 455 from participating in the decision of this matter. Accordingly, the Panel invoked the Rule of Necessity and these six Panel members participated in the decision of this matter in order to provide the forum created by the governing statute, 28 U.S.C. § 1407. See In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation, 170 F.Supp.2d 1356, 1357-57 (J.P.M.L. 2001).
Stephen B. Ashley; Dennis R. Beresford; Louis J. Freeh; Brenda J. Gaines; Frederick B. Harvey, III; David Hisey; Karen N. Horn; Robert J. Levin; Thomas Lund; Bridget A. Macaskill; Daniel H. Mudd; Peter Niculescu; Leslie Rahl; John C. Sites, Jr.; Greg C. Smith; Stephen Swad; H. Patrick Swygert; John K. Wulff; Fannie Mae Compensation Committee; and Fannie Mae Benefits Plans Committee.
Banc of America Securities, LLC; Barclays Capital, Inc.; Bear, Stearns Co.; Citigroup Global Markets, Inc.; Deutsche Bank Securities, Inc.; E*Trade Securities LLC; FTN Financial Securities Corp.; Goldman, Sachs Co.; J.P. Morgan Securities, Inc.; Lehman Brothers, Inc.; Merrill Lynch, Pierce, Fenner Smith, Inc.; Morgan Stanley Co., Inc.; UBS Securities, LLC; Wachovia Capital Markets, LLC; Wachovia Securities, LLC; and Wells Fargo Securities LLC.
This litigation currently consists of nineteen actions listed on Schedule A and pending in five districts, fifteen actions in the Southern District of New York, and one action each in the District of District of Columbia, the Southern District of Florida, the District of New Jersey, and the Western District of Pennsylvania.
The Panel has been notified that two additional related actions have been filed, one in the District of District of Columbia, and one in the Southern District of Florida. These actions will be treated as potential tag-along actions. See Rules 7.4 and 7.5, R.P.J.P.M.L., 199 F.R.D. 425, 435-36 (2001).
On the basis of the papers filed and hearing session held, we find that these actions involve common questions of fact, and that centralization under Section 1407 in the Southern District of New York will serve the convenience of the parties and witnesses and promote the just and efficient conduct of this litigation. All actions allege that Fannie Mae was undercapitalized during the relevant time period, and that defendants concealed this fact from investors in order to raise capital. Centralization under Section 1407 will eliminate duplicative discovery; prevent inconsistent pretrial rulings, including with respect to class certification; and conserve the resources of the parties, their counsel and the judiciary.
Plaintiff in the District of New Jersey action can present his motion for remand to state court to the transferee judge. See, e.g., In re Ivy, 901 F.2d 7 (2nd Cir. 1990); In re Prudential Insurance Company of America Sales Practices Litigation, 170 F.Supp.2d 1346, 1347-48 (J.P.M.L. 2001).
We are persuaded that the Southern District of New York is an appropriate transferee forum for this litigation. Fifteen actions are already pending in that district and many of the corporate defendants are headquartered in New York.
IT IS THEREFORE ORDERED that, pursuant to 28 U.S.C. § 1407, the actions listed on Schedule A and pending outside the Southern District of New York are transferred to the Southern District of New York and, with the consent of that court, assigned to the Honorable Gerard E. Lynch for coordinated or consolidated pretrial proceedings with the actions pending there and listed on Schedule A.
SCHEDULE A
District of District of Columbia
Mary P. Moore v. Federal National Mortgage Association Compensation Committee, et al., C.A. No. 1:08-1825
Southern District of Florida
Hilda Gordon v. Stephen B. Ashley, et al., C.A. No. 9:08-81007
District of New Jersey
Daniel Kramer v. Federal National Mortgage Association, et al., C.A. No. 2:08-5287
Southern District of New York
John A. Genovese v. Stephen B. Ashley, et al., C.A. No. 1:08-7831
Robert M. Rollins v. Lehman Brothers, Inc., et al., C.A. No. 1:08-7938
Nicholas Crisafi, et al. v. Merrill Lynch Fenner Pierce Smith, Inc., et al., C.A. No. 1:08-8008
Fogel Capital Management, Inc. v. Federal National Home Mortgage Association, et al., C.A. No. 1:08-8096
Dennis Sandman v. J.P. Morgan Securities, Inc. et al., C.A. No. 1:08-8353
Karen Orkin, et al. v. Merrill Lynch Pierce Fenner Smith, Inc., et al., C.A. No. 1:08-8488
Brian Jarmain v. Merrill Lynch Pierce Fenner Smith, Inc., et al., C.A. No. 1:08-8491
Malka Krausz v. Federal National Mortgage Association, et al., C.A. No. 1:08-8519
Donald W. McCauley v. Merrill Lynch Pierce Fenner Smith, Inc., et al., C.A. No. 1:08-8520
David L. Frankfurt, et al. v. Lehman Brothers, Inc., et al., C.A. No. 1:08-8547
Cheryl Strong, et al. v. Wachovia Capital Markets, LLC, et al., C.A. No. 1:08-8551
Stephen H. Schweitzer, et al. v. Merrill Lynch Pierce Fenner Smith, Inc., et al., C.A. No. 1:08-8609
Lynn Williams, et al. v. Stephen B. Ashley, et al., C.A. No. 1:08-8676
Susan Kraus v. Citigroup Global Markets, Inc., C.A. No. 1:08-9649
Phillip Melton v. E*Trade Securities, LLC, C.A. No. 1:08-9650Western District of Pennsylvania
Leonard Jesteadt, et al. v. Stephen B. Ashley, et al., C.A. No. 2:08-1335