In re Alcon S'holder Litig.

• Decision Date: 06 May 2010
• Docket Number: No. 10–0115.,10–0115.
• Parties: In re ALCON SHAREHOLDER LITIGATION.
• Court: Judicial Panel on Multidistrict Litigation

387 S.W.3d 121

In re ALCON SHAREHOLDER LITIGATION.

No. 10–0115.

Texas Judicial Panel on Multidistrict Litigation.

May 6, 2010.

[387 S.W.3d 123]

ON REVIEW BY THE MULTIDISTRICT LITIGATION PANEL
Justice BROWN delivered the opinion of the MDL Panel.

Novartis AG, a Swiss pharmaceutical company, has moved the panel to transfer four lawsuits to a pretrial court. All four cases are shareholder actions challenging Novartis's bid to wholly acquire Alcon, Inc., a Swiss eye-care company with operations in Fort Worth.¹ Although Novartis is the only one of the actions' fourteen defendants to move for transfer, at least six of the defendants agree that transfer is appropriate.² Plaintiffs L. Patricia Sampoli and Joel Krieger object to the transfer.

Rule 13 authorizes us “to transfer ‘related’ cases from different trial courts to a single pretrial judge if transfer will (1) serve the convenience of the parties and witnesses and (2) promote the just and efficient conduct of the litigation.” In re Cano Petroleum, Inc., 283 S.W.3d 179, 181 (Tex. M.D.L. Panel 2008) (quoting In re Ad Valorem Tax Litig., 216 S.W.3d 83, 84 (Tex. M.D.L. Panel 2006)); see Tex.R. Jud. Admin. 13.2(f), 13.3(a), 13.3( l ). Novartis argues that the four lawsuits “are as similar as any four cases could be,” and thus easily satisfy Rule 13's relatedness standard. Transferring the cases to a single pretrial court would be convenient for the parties and witnesses, Novartis contends, and would promote justice and efficiency. Novartis concludes its motion by suggesting that the panel name a specific district judge in Tarrant County as the pretrial judge.

Sampoli and Krieger do not dispute that the four cases are sufficiently related under Rule 13. Nor do they quarrel with the argument that transfer to a single judge would foster convenience and efficiency, except to contend that Dallas would be more convenient than Fort Worth. But they do oppose Novartis's selection of a particular judge, noting that this panel has criticized similar requests in the past. They also contend that transfer would violate Rule 120a of the Texas Rules of Civil Procedure.

On April 15, 2010, we granted the motion to transfer, but denied the request for a particular judge. This opinion lays down our reasons for those rulings.

Transfer Under Rule 13

To be eligible for transfer under Rule 13, cases must “involve one or more common questions of fact.” In re Hurricane Rita Evacuation Bus Fire, 216 S.W.3d 70, 72 (Tex. M.D.L. Panel 2006). Novartis correctly alleges that these cases easily satisfy that test. Each of the four cases is filed against thirteen of the same defendants; three of the four cases also include Nestlé as a defendant. All of the cases consist of claims for breach of fiduciary duties and breach of contract arising out of the same transaction—Novartis's proposed acquisition of all of Alcon's outstanding

[387 S.W.3d 124]

stock. Because cases involving “nearly identical generalized allegations of wrongdoing” satisfy the relatedness requirement, cases sharing identical allegations of wrongdoing arising out of the same set of facts necessarily do, too. See In re Standard Guar. Ins. Co., 339 S.W.3d 398, 398 (Tex. M.D.L. Panel 2009).

Additionally, each of the cases is a class action, and the plaintiffs in each action purport to represent the same class of Alcon shareholders. We have recognized that “there is a nexus between commonality for class[-]certification purposes and relatedness for consolidation purposes.” In re Petroleum Wholesale Litig., 339 S.W.3d 405, 408 (Tex. M.D.L. Panel 2009). Many of the issues in the four cases are also the same: (1) whether some of the defendants are subject to personal jurisdiction in Texas; (2) whether the cases should be transferred to Switzerland; (3) whether the defendants breached fiduciary and contractual duties to Alcon shareholders; and (4) whether Novartis should be enjoined from completing the acquisition.

Novartis also persuasively argues that consolidated pretrial proceedings would further both convenience and efficiency. SeeTex. Gov't Code Ann. § 74.162 (Vernon 2005); Tex.R. Jud. Admin. 13.3(a)(2). It is “undeniable that it is more convenient for witnesses and parties who find themselves involved in several cases to...