JUDICIAL PANEL ON MULTIDISTAICT LITIGATION OCT 28 2005 FILED. CLERK'S OFFICE MOL 2119 BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION InRe: MDL Docket No. 2119 MERS LITIGATION PLEADINGNO. 32 REPLY MEMORANDUM OF DEFENDANTS CITIMORTGAGE, INC., MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., MERSCORP, INC., NATIONAL CITY BANK, NATIONAL CITY MORTGAGE, NATIONAL CITY CORPORATION, PNC FINANCIAL SERVICES GROUP, INC., AND UNITED GUARANTY CORPORATION IN SUPPORT OF THEIR MOTION FOR TRANSFER OF ACTIONS PURSUANT TO 28 U.S.C. § 1407 FOR CONSOLIDATED OR COORDINATED PRETRIAL PROCEEDINGS INTRODUCTION Moving Defendants demonstrated in their Opening Memorandum (at 8-15) that Plaintiffs’ overarching conspiracy theory of liability in cach of the seven actions (the “Putative Class Actions”) is the same. Plaintiffs also bring the same common law (e.g., unjust enrichment, intentional infliction of emotional distress, etc.) and statutory counts (TILA, HOEPA, FHA, etc.) in many of the seven cases As such, the Putative Class OFFICIAL FILE COPY IMAGED CP 28 2009 .Actions all assert common claims of fact and law, The cases—all of which are brought by the same counsel for plaintiffs—also involve proposed national classes that overlap. Transfer of the Actions to a single district court for consolidated or coordinated treatment therefore would undeniably promote the just and efficient conduct of the litigation. Moreover, as discussed below, the judges overseeing the Putative Class Actions have likewise stressed the need for pretrial coordination. As Judge Robert C. Jones recently emphasized during a preliminary injunction hearing in Dalton, et al. v. CitiMortgage, Inc., et al., No. 3:09-cv-534 (D. Nevada), “[t]here’s no reason why different judges should handle the same issues... . It’s inappropriate.” See Ex. A (October 9, 2009 Hearing Transcript at 54:14-19). Plaintiffs agree that the Putative Class Actions should be consolidated in an MDL. Indeed, Plaintiffs acknowledge that the cases “are suitable for transfer and pretrial consolidation or coordination duc to some common factual and Icgal claims, and because ‘transfer would promote the just and efficient conduct of the actions and be convenient for the parties and witnesses in accordance with 28 U.S.C. § 1407.” Plaintiffs’ Response To Motion Of Defendants For Transfer (“PI. Resp.” or “Plaintiffs? Response”) at 4. Accord id. at 5-6 (acknowledging that “[a]lthough the cases do not state the exact same causes of action against each defendant, the cases do involve common questions involving the conspiracy claim related to the creation and use of the MERS system”). Plaintiffs take issue only with Moving Defendants’ request that the cases be transferred to Judge James A. Teilborg of the District of Arizona, arguing that the cases should instead be transferred to Judge Edward C. Reed, Jr. of the District of NevadaDefendant Ocwen Loan Servicing filed a brief in support of the Motion For Transfer filed by the eight Moving Defendants and agrees that the cases should be consolidated before Judge Teilborg. See Resp. of Ocwen Loan Servicing, LLC at 1-2. Of the remaining 50 named defendants in the seven Putative Class Actions, only twelve defendants (the “Opposing Parties”) have filed opposition briefs.' For their part, Opposing Parties agree that if the Panel dccms transfer appropriate, it should transfer the Putative Class Actions to Judge Teilborg. Opposing Parties likewise agree that the Putative Class Actions share certain common questions’ and thus that coordination among the cases is essential. They contend, however, that there is no need at this juncture to transfer the Putative Class Actions to a single district court because at least some proceedings in at least some of the actions are being coordinated voluntarily. As discussed mare fully below, Opposing Parties overstate the extent of the voluntary cooperation that has occurred thus far. But in any event, the Panel has long recognized that “[vJoluntary cooperation among the concerned courts and parties, while always laudable, is not an appropriate alternative to 1407 transfer.” In re Computervision One of these oppositions was filed on behalf of cight defendants that are represented by the same national counsel. See Certain Defendants’ Opposition To Motion For Transfer Of Actions Pursuant To 28 U.S.C. § 1407 For Consolidated Or Coordinated Pretrial Proceedings (Certain Parties’ Opp.”). The other opposition was filed on behalf of Fannie Mae, Freddie Mac, and potential intervenor Federal Housing Finance Agency. See Response Of Defendants Fannie Mae And Freddie Mac And Intervenor Defendant Federal Housing Finance Agency As ‘Conservator For Fannie Mae And Freddie Mac To Motion For ransfer Of Actions Pursuant To 28 U.S.C. § 1407 For Consolidated Or Coordinated Pretrial Proceedings (“Fannie Mae Resp.”). Defendants Deutsche Bank and MortgagelT, Inc, filed a joinder in Certain Parties’ Opp. bref. Joinder in Certain Defendants’ Opposition To Motion For Transfer OF Actions Pursuant To 28 US.C. § 1407 For Consolidated Or Coordinated Pretrial Proceedings (“Joinder in Certain Parties’ Opp.”). 2 See Fannie Mae Resp. at 2 (describing the actions as “largely identical”); Certain Parties’ ‘Opp. at 1-2 (acknowledging that all of the actions “allege claims involving” MERS and ‘concern certain alleged mortgage lending practices prior to the recent economic disruptions, challenge