For the first time since it wrote the rules on multidistrict litigation in 2003, the Texas Supreme Court is poised to provide direction on the propriety of a “tag-along” transfer to an existing MDL.
The court on Friday agreed to hear a mandamus petition by Facebook owner Meta Platforms Inc. over the transfer of a Jane Doe sex-trafficking case against Facebook and a hotel to an MDL involving similar allegations against Salesforce Inc. Salesforce is accused of selling its software to Backpage.com, a website that was shut down by the U.S. Department of Justice in April 2018.
Doe alleges in a lawsuit filed in October 2018 that a third party befriended her on Facebook, persuaded her to meet in person and then subjected her to sex trafficking at a Houston hotel owned by Texas Pearl. In April 2022, three and a half years into the case, Texas Pearl transferred it to the MDL created three years earlier for sex trafficking cases filed by seven other Jane Does against Salesforce.
Scott A. Brister, lead appellate counsel for Meta, said in the corporation’s petition for review that the court where he once served never approved or modified the transfer standards developed by the MDL panel in the 48 Westlaw-published panel decisions issued between 2003 and 2016. “Nor has it reviewed any panel order thereafter, most of which contain a conclusion with little or no analysis, and none of which are even reported by Westlaw,” said Brister, now a partner at Hunton Andrews Kurth.
Meta argues that the case against it shares no common facts with the Salesforce MDL. “It involves none of the traditional common factors supporting transfer, such as a common event, common product or technology, common premises, or a party’s common conduct,” Brister said.
Warren W. Harris of Bracewell, who represents Doe, told the court that her case presents “common questions of fact concerning the role and culpability of certain websites and hotels in the plaintiffs’ sex trafficking.” Texas Pearl has argued that the case should remain in the MDL court for purposes of efficiency and convenience on pretrial matters.
Judge Mark Davidson is presiding over the Salesforce MDL pretrial court in Harris County. He denied Meta’s motion to remand the case to the trial court in a one-sentence order. The MDL panel denied Meta’s motion for rehearing, again in a single sentence order.
The MDL Panel is composed of five current or former judges and justices. David L. Evans, presiding judge of the Eighth Administrative Judicial Region, serves as the panel chair.
“The MDL panel clearly abused its discretion by denying remand here. Because written MDL panel opinions are vanishing, and this Court has never reviewed a panel order in 20 years, the Court should grant review, reverse, and remand this case to the 55th Judicial District Court for further proceedings,” Brister said.
Meta said in its petition that the federal Judicial Panel on Multidistrict Litigation has rejected consolidation of sex-trafficking suits under statutory standards almost identical to those at issue. Doe responded that the federal panel reasoning has no application because Texas law does not require that common fact questions predominate to warrant transfer to an MDL.
Harris said the mandamus proceeding “is the latest in a string of appellate challenges Facebook has initiated that have exponentially magnified the time and expense associated with this case and delayed the parties from reaching the merits.”
“Further, it is more efficient, convenient, and just for a single MDL court to resolve the significant recurring issues presented by these sex-trafficking cases, rather than requiring the parties to argue the same issues before multiple courts that may reach inconsistent conclusions,” Harris said.
Brister said that overlapping counsel “may affect the convenience or efficiency elements that come into play once relatedness is satisfied, but they do not make the disparate cases in which they are retained ‘related’ in the first place.”
He said the Legislature limited relatedness to common fact questions and, as recently as 2021, rejected a bill to expand that definition to include common legal issues.
Transfer will not improve convenience or efficiency, Meta said, noting that parties agreed to a protective order three years ago, anticipating that this case would involve Meta’s valuable proprietary information. “Yet as soon as this case was transferred to the MDL pretrial court, Plaintiff’s counsel sought to alter that protective order in the MDL.”
According to filings, Jane Doe was a minor when she was caught up in a public health crisis that they said has reached epidemic proportions. Within hours of their meeting, the trafficker posted her for sale on Backpage and she was beaten, raped, and forced into sex trafficking. Doe non-suited her claims against Backpage.
Facebook also is represented by Kelly Sandill, Kathryn E. Boatman and Ashley Kahn of Hunton Andrews Kurth, along with trial court counsel Collin J. Cox and Kristin A. Linsley of Gibson, Dunn & Crutcher.
Other lawyers for Doe are Walter A. Simons of Bracewell; Annie McAdams; David E. Harris of Sico Hoelscher Harris; and Bryan O. Blevins Jr. of Provost Umphrey Law Firm.
Texas Pearl is represented by Willie Ben Daw III and Suleha F. Shaikh of Daw & Ray.
The case number is 23-0202.