Case MDL No. 2551 Document 1 Filed 04/25/14 Page 1 of 3 BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ) IN RE NHL CONCUSSION LITIGATION ) ) MDL Docket No. _____ ) ___________________________________ ) DEFENDANT NATIONAL HOCKEY LEAGUE’S MOTION TO TRANSFER RELATED ACTIONS FOR COORDINATED PRETRIAL PROCEEDINGS PURSUANT TO 28 U.S.C. § 1407 Pursuant to Rule 6.2(a) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, defendant National Hockey League (“NHL”) respectfully moves the Panel for an order pursuant to 28 U.S.C. § 1407 transferring the actions listed on the attached schedule to the United States District Court for the District of Columbia for coordinated pretrial proceedings before the Honorable Ketanji Brown Jackson. In support of its motion, NHL states the following: 1. Three class-action complaints have recently been filed against defendant NHL in federal-district courts seeking to hold the NHL liable for concussion-related injuries that current and/or former players have allegedly suffered or may suffer in the future. 2. The first such action was a class-action case filed in the U.S. District Court for the District of Columbia by Gary Leeman and 12 other putative representatives, on behalf of themselves and a proposed nationwide class. That case was filed on November 25, 2013. 3. Since that time, two additional cases proposing overlapping classes have been filed: LaCouture v. NHL, No. 1:14-cv-02531-SAS (S.D.N.Y. filed Apr. 9, 2014), and Christian v. NHL, No. 0:14-cv-01140-SRN-JSM (D. Minn. filed Apr. 15, 2014). Case MDL No. 2551 Document 1 Filed 04/25/14 Page 2 of 3 4. The actions proposed for transfer all “[i]nvolve one or more common questions of fact” as required by 28 U.S.C. § 1407(a). Therefore, coordination of the actions before a single court will conserve judicial resources, reduce the costs of litigation, prevent potentially inconsistent pretrial rulings, eliminate duplicative discovery, and permit the cases to proceed to trial more efficiently. 5. The three actions are at a very early stage of litigation. They were all filed between November 25, 2013 and April 15, 2014. Service has not yet been effected in two of the suits, and no responsive pleadings have been filed in any of the three cases. The Leeman court has held an initial status conference and issued a scheduling order for the NHL’s motion to dismiss. 6. The United States District Court for the District of Columbia is the most appropriate forum for coordinated pretrial proceedings in this litigation because the first action was filed there; it has the necessary expertise and resources to efficiently manage this litigation; it has a favorable docket; and it is a very accessible forum. For the foregoing reasons and those set forth in the accompanying memorandum, defendant NHL respectfully requests that the Panel transfer the actions identified on the attached schedule to the United States District Court for the District of Columbia for coordinated pretrial proceedings. Dated: April 25, 2014 Respectfully submitted, s/John H. Beisner John H. Beisner Jessica Davidson Miller SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 1440 New York Avenue, N.W. Washington, D.C. 20005 2 Case MDL No. 2551 Document 1 Filed 04/25/14 Page 3 of 3 (202) 371-7000 [email protected] Shepard Goldfein James A. Keyte Matthew M. Martino SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, New York 10036-6522 (212) 735-3000 COUNSEL FOR DEFENDANT NATIONAL HOCKEY LEAGUE 3 Case MDL No. 2551 Document 1-1 Filed 04/25/14 Page 1 of 12 BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ) IN RE NHL CONCUSSION LITIGATION ) ) MDL Docket No. _____ ) ___________________________________ ) DEFENDANT NATIONAL HOCKEY LEAGUE’S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO TRANSFER RELATED ACTIONS FOR COORDINATED PRETRIAL PROCEEDINGS PURSUANT TO 28 U.S.C. § 1407 Pursuant to Rule 6.2(a) of the Rules of Procedure of the Judicial Panel on Multidistrict Litigation, defendant the National Hockey League (“NHL”) respectfully submits this memorandum in support of its motion for an order transferring LaCouture v. NHL, No. 1:14-cv- 02531-SAS (S.D.N.Y. filed Apr. 9, 2014), and Christian v. NHL, No. 0:14-cv-01140-SRN-JSM (D. Minn. filed Apr. 15, 2014), to the U.S. District Court for the District of Columbia (preferably before the Honorable Ketanji Brown Jackson) for coordinated pretrial proceedings with Leeman v. NHL, No. 1:13-cv-01856-KBJ (D.D.C. filed Nov. 25, 2013), a substantially similar case that is already pending before Judge Jackson in that district. Given the complexity of these three putative class action cases, which involve 25 named plaintiffs and implicate the laws of 18 states, the District of Columbia and five Canadian provinces, coordination of the LaCouture, Christian and Leeman actions for pretrial proceedings pursuant to 28 U.S.C. § 1407 is necessary to eliminate duplicative discovery, avoid conflicting pretrial rulings, conserve the resources of the judiciary, and otherwise promote the just and efficient resolution of these actions. BACKGROUND The NHL has been named as a defendant in three putative class actions pending in federal courts in the District of Columbia, New York and Minnesota. Plaintiffs in each of these Case MDL No. 2551 Document 1-1 Filed 04/25/14 Page 2 of 12 cases seek to hold the NHL liable for concussion-based injuries they have allegedly suffered or may suffer in the future. (See Leeman Am. Compl. ¶¶ 1-19; LaCouture Am. Compl. ¶¶ 6-8; Christian Compl. ¶¶ 1-2.) The Leeman action is brought by 13 named plaintiffs from seven jurisdictions on behalf of “all former NHL players who retired on or before February 14, 2013 and who have suffered brain trauma and/or injuries as a result of concussive and subconcussive impacts inflicted on them while playing in the NHL.” (Leeman Am. Compl. ¶ 150.) The LaCouture action is brought by nine named plaintiffs from four different jurisdictions on behalf of all current and former NHL players. (LaCouture Am. Compl. ¶ 242.) And the Christian action is brought by three named plaintiffs from two different jurisdictions on behalf of “[a]ll living NHL hockey players, their spouses and dependents, and the estates of deceased NHL players, who retired, formally or informally, from playing professional hockey with the NHL or any member club, and who are not seeking active employment as players with any NHL member club.” (Christian Compl. ¶¶ 25-27, 187.) The named plaintiffs in these cases played for NHL teams in 16 different states, the District of Columbia and Canada, and the proposed classes implicate the laws of 18 states, the District of Columbia and five Canadian provinces. The plaintiffs in each of the putative class actions allege that the NHL has been on notice that concussive impacts can lead to long-term injury for almost a century. (See Leeman Am. Compl. ¶¶ 58-81; LaCouture Am. Compl. ¶¶ 84- 109; Christian Compl. ¶¶ 2, 123-129.) In addition, all of the complaints allege that the NHL has promoted a culture of violence to generate profits at the expense of player safety. (See Leeman Am. Compl. ¶¶ 95-102; LaCouture Am. Compl. ¶¶ 30-69; Christian Compl. ¶¶ 10, 77-79.) The complaints also allege that the NHL took affirmative actions that increased the risk of injury to players. (See Leeman Am. Compl. ¶ 124; LaCouture Am. Compl. ¶¶ 196-201; Christian Compl. 2 Case MDL No. 2551 Document 1-1 Filed 04/25/14 Page 3 of 12 ¶¶ 137-140.) All the complaints further allege that the NHL voluntarily assumed a duty to warn its players about the risks associated with concussions. (See, e.g., Leeman Am. Compl. ¶¶ 103- 111; LaCouture Am. Compl. ¶¶ 172, 252; Christian Compl. ¶¶ 112-122.) And each Complaint alleges that the NHL failed to effectively or timely implement reforms that would have more adequately protected players from the long-term effects of head trauma. (See, e.g., Leeman Am. Compl. ¶¶ 126-135; LaCouture Am. Compl. ¶¶ 220-229; Christian Compl. ¶¶ 157-171.) Plaintiffs in all three cases assert claims for, inter alia, fraudulent concealment and negligence. (See Leeman Am. Compl. ¶¶ 183-196, 241-248; LaCouture Am. Compl. ¶¶ 251- 255, 262-267; Christian Compl. ¶¶ 222-234, 243-256.) Plaintiffs in all three cases also seek relief in the form of medical monitoring and compensatory damages. (See Leeman Am. Compl. ¶¶ 165-182, Prayer for Relief; LaCouture Am. Compl., Prayer for Relief; Christian Compl. ¶¶ 195-221, Prayer for Relief.)1 A schedule of the three presently-filed related actions and the complaints in those actions are attached as Appendix A. ARGUMENT The Leeman, LaCouture and Christian actions involve overlapping putative classes and complex factual allegations regarding supposed concussive injuries that allegedly resulted from defendant NHL’s conduct. For the reasons set forth below, the NHL believes that the actions should be centralized for coordinated pretrial proceedings, and that the U.S. District Court for the District of Columbia is the most appropriate venue for an MDL proceeding in these matters. 1 None of the purported classes described in the constituent complaints would satisfy the requirements of Federal Rule of Civil Procedure 23, because resolution of the claims would require individualized factual and legal inquiries. Nonetheless, because the contours of the proposed classes – and therefore the ultimate resolution of the class certification decision – overlap, the NHL seeks centralization of these actions before a single district court for pretrial proceedings. 3 Case MDL No. 2551 Document 1-1 Filed 04/25/14 Page 4 of 12 I. COORDINATION OF PRETRIAL PROCEEDINGS IS NECESSARY TO ACHIEVE THE OBJECTIVES OF 28 U.S.C.