Appendix Y

new appendix

Multi-District Litigation

The pleadings in this appendix can be found, in both Word and PDF formats, on the companion CD-Rom to this manual.

Y.1 Joint Motion to Transfer and Consolidate Related Actions

BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION In Re: Agfa Photographic Equipment Lease Related Actions ) ) ) MDL Docket No. ) )

PLAINTIFFS AND DEFENDANT/THIRD PARTY PLAINTIFFS MOTION FOR TRANSFER AND CONSOLIDATION OF RELATED ACTIONS TO THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS PURSUANT TO 28 U.S.C. 1407 Plaintiffs Douglas Vieau and Metro Color Lab, Inc., d/b/a Metro Photo & Frames, Paula Carroll d/b/a Carroll Film Processing and John Carroll, Technical Photo, Inc. and John Castronovo, and Donald Bakewell and Troy Bakewell, d/b/a Camelot Photography (collectively the Class Action Plaintiffs) in Douglas Vieau, and Metro Color Lab, Inc., d/b/a Metro Photo & Frames, Paula Carroll d/b/a Carroll Film Processing and John Carroll, Technical Photo, Inc. and John Castronovo, and Donald Bakewell and Troy Bakewell, d/b/a Camelot Photography v. Agfa Corporation, Agfa Finance Group f/k/a Bayer Financial Services, AgfaPhoto USA Corporation, Bing Liem and Leaf Funding, Inc., C.A. No. 0611320-RGS (D. Mass.) (the Class Action) and Defendants/Third Party Plaintiffs Richeld One Hour Photo Corp., Larry Eastman and Linda M. Eastman (collectively the Minnesota Defendants/ Third Party Plaintiffs) in Leaf Funding Inc. v. Richeld One Hour Photo Corp., Larry Eastman, Linda M. Eastman v. Agfa Corporation, 06-03187-PAM-JSM (D. Minn.) (the Minnesota Action), respectfully move this Panel, pursuant to 28 U.S.C. 1407 and Rule 7.2 of the Rules of Procedure of the Judicial Panel on Multi-District Litigation, to transfer all pending and yet-to-be led federal cases involving Agfa Corporation, Agfa Finance Group f/k/a Bayer Financial Services, AgfaPhoto USA Corporation, Bing Liem (collectively AGFA) and Leaf Funding, Inc. (Leaf) arising from the same set of facts and stating the same or similar claims as those set forth in their Class Action complaint, Coun-

terclaim and Third Party Complaint to the United States District Court for the District of Massachusetts (the District of Massachusetts). In support of their Motion, the Class Action Plaintiffs and Minnesota Defendants/Third Party Plaintiffs submit the accompanying Brief and state as follows: 1. The pending actions listed in the accompanying Schedule of Related Actions, attached hereto as Exhibit A, assert common questions of fact and law, and consolidation or coordination of the related cases will promote efficiency and convenience for the parties, the witnesses, and the courts. The requirements for transfer and consolidation are thereby satised. The Schedule of Related Actions contains a complete list of all of the pending federal and state cases of which the Movants have knowledge at this time. 2. Douglas Vieau and Metro Color Lab, Inc., d/b/a Metro Photo & Frames, Paula Carroll d/b/a Carroll Film Processing and John Carroll, Technical Photo, Inc. and John Castronovo, and Donald Bakewell and Troy Bakewell, d/b/a Camelot Photography are plaintiffs in the Class Action, Douglas Vieau, et al. v. Agfa Corporation, Agfa Finance Group f/k/a Bayer Financial Services, AgfaPhoto USA Corporation, Bing Liem and Leaf Funding, Inc., C.A. No. 06-11320-RGS (D. Mass.). A true and correct copy of the Class Action Complaint is attached hereto as Exhibit B. 3. Richeld One Hour Photo Corp., Larry Eastman and Linda M. Eastman are Defendants/Third Party Plaintiffs in the Minnesota Action, Leaf Funding Inc. v. Richeld One Hour Photo Corp., Larry Eastman, Linda M. Eastman v. Agfa Corporation, C.A. No. 06-03187-PAM-JSM (D. Minn.). A true and correct copy of their Answer, Counterclaim and Third Party Complaint is attached hereto as Exhibit C. 4. The Class Action Plaintiffs, on behalf of themselves and all others similarly situated, and the Minnesota Defendants/Third Party Plaintiffs assert that AGFA and/or Leaf wrongfully deprived Lessees of complex, digital photographic developing equipment (Lessees) of service and maintenance of their photographic equipment thereby violating M.G.L. c. 93A, the UCC, and their contractual obligations and entitling them to damages, injunctive relief and declaratory relief. 5. Agfa Corporation is a corporation organized under the laws of Delaware, has its principal place of business at 100 Challenger Road, Ridgeeld Park, NJ 07660. 6. Agfa Finance Group of Agfa Corporation, f/k/a Bayer Financial Corporation is a corporation organized under the laws of Delaware, has its principal place of business at 200 Ballardvale Street, Wilmington, MA 01887. 7. AgfaPhoto USA Corporation, a corporation organized under the laws of Delaware, has its principal place of business at 100 Challenger Road, Ridgeeld Park, NJ 07660.

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a. Save substantial time and resources for the parties and the judicial system; b. Not delay the proceedings; c. Prevent duplication of discovery; d. Promote the convenience of the parties and the witnesses; and e. Promote just and efficient resolution of all the causes of action. 16. Accordingly, transfer and coordination and consolidation of these cases will facilitate consistent rulings as to the legality of AGFA and/or Leafs conduct. 17. The District Court for the District of Massachusetts is the most appropriate transferee forum because it is the District in which the majority of the Related Actions are now pending, because the Lease Agreements at issue require application of Massachusetts law, and because Judge Richard G. Stearns has already indicated a willingness to accept an MDL appointment for the Related Actions. For the reasons asserted herein and in the accompanying Brief, the Class Action Plaintiff and the Minnesota Defendants/Third Party plaintiffs respectfully move the Panel on the Multi-District Litigation to order the transfer and coordination and/or consolidation of the Related Actions to Judge Richard G. Stearns in the District Court for the District of Massachusetts. Date: [Date] Respectfully Submitted, [Attorneys for Class Action Plaintiffs] [Attorneys for the Defendants/Third Party Plaintiffs in the Consolidated Action] [Attorneys for the Defendants/Third Party Plaintiffs in the Minnesota Action]

8. Defendant Bing Liem, an individual, is the former President of AGFAPhoto USA Corporation and current Vice President of Sales of Fuji Photo Film U.S.A., Inc. Mr. Liems principal place of business is located at 200 Summit Lake Drive, Valhalla, NY 10595. 9. Defendant Leaf Funding, Inc. a corporation organized under the laws of Delaware, has its principal place of business at 110 S. Poplar Street, Suite 101, Wilmington, Delaware. 10. There are currently pending at least eleven federal actions (including the Class Action and the Minnesota Action) involving AGFA and/or Leaf in four different judicial districts throughout the country arising from the same set of facts and involving the same issues of law as those set forth by the Class Action Plaintiffs and the Minnesota Defendants/Third Party Plaintiffs (the Related Actions). Six of those actions have been consolidated in the United States District Court for the District of Massachusetts by Judge Richard G. Stearns (Consolidated Action) under the action initially styled as Leaf Funding, Inc., v. Donald Bakewell and Troy Bakewell d/b/a Camelot Photography, C.A. No. 10478RGS (D. Mass.). The Class Action, C.A. No. 11320-RGS (D. Mass.) is also pending before Judge Stearns. 11. On August 9, 2006, at a scheduling conference for the Consolidated Action, Judge Stearns suggested that the Class Action and the Consolidation Action pending before him, along with similar actions pending in other courts, would be appropriate for an MDL transfer petition. He stated that [he] would be willing to accept an MDL appointment for all of the Leaf Funding cases that are pending in the Federal . . . courts. See Electronic Clerks Notes, entered 08/09/06 in C.A. No. 06-10478-RGS (D. Mass.) Judge Stearns also directed the parties to provide a list of all of the pending cases with the Court and counsel. Id. To date, counsel for the Movants have not received any such list. 12. On August 9, 2006, Judge Stearns stayed the Consolidated Action and the Class Action before him pending counsels ling of a petition with the MDL Panel to have all cases consolidated here and assigned to Judge Stearns. Id. A true and correct copy of the docket in the Consolidated Action is attached hereto as Exhibit D. 13. At the Scheduling Conference, counsel for Agfa Corporation agreed to join in the proposed MDL petition. In a reversal from its initial position, Agfa Corporation has declined to join in this petition. 14. The Related Actions allege similar conduct on the part of AGFA and/or Leaf and raise nearly identical legal and factual issues. The Lease Agreements executed by the various Lessees are identical. All of the Lease Agreements require resolution of disputes under Massachusetts law. Moreover, in each of the Related Actions, AGFA and/or Leaf are alleged to have engaged in the same course of conduct, i.e., improperly terminating their service and maintenance obligations. Finally, the ultimate legal question for determination by the courts is the same: whether the AGFA and/or Leafs engagement in purportedly wrongful activity excuses the Lessees from making payments under the Lease Agreements and/or results in compensable damages. Because the Related Actions involve virtually identical questions of fact and law, consolidation and coordination is appropriate. 15. Centralization of pretrial proceedings is particularly appropriate at this time because all cases are in the early stages and coordination and transfer for consolidation will:

Y.2 Brief in Support of Joint Motion to Transfer and Consolidate Related Actions
I. INTRODUCTION Pursuant to 28 U.S.C. 1407 and Rule 7.2 [o]f the Rules of Procedure of the Judicial Panel on Multi-District Litigation, the Plaintiffs in Douglas Vieau and Metro Color Lab, Inc., d/b/a Metro Photo & Frames, Paula Carroll d/b/a Carroll Film Processing and John Carroll, Technical Photo, Inc. and John Castronovo, and Donald Bakewell and Troy Bakewell, d/b/a Camelot Photography, On behalf of themselves and all others similarly situated v. Agfa Corporation, Agfa Finance Group f/k/a Bayer Financial Services, AgfaPhoto USA Corporation, Bing Liem and Leaf Funding, Inc., C.A. No. 06-11320-RGS (D. Mass.) (the Class Action) and the Defendants/Third Party Plaintiffs in Leaf Funding Inc. v. Richeld One Hour Photo Corp., Larry Eastman, Linda M. Eastman v. Agfa Corporation, 06-03187-PAM-JSM (D. Minn.) (the Minnesota Action), submit this brief in support of their Motion For Transfer And Consolidation of Related Actions (the Motion) of all pending and yet-to-be-led federal actions involving Agfa Corporation, Agfa Finance Group f/k/a Bayer Financial Services, AgfaPhoto USA Corporation, Bing Liem (collectively AGFA) and Leaf

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Funding, Inc. (Leaf) arising from the same set of facts and stating the same or similar claims as those set forth in their Class Action complaint, Counterclaim and Third Party Complaint to the United States District Court for the District of Massachusetts (the District of Massachusetts). There are currently pending at least eleven federal actions (including the Class Action and the Minnesota Action) in four different judicial districts throughout the country arising from the same set of facts and involving the same issues of law as those set forth by the Class Action Plaintiffs and the Minnesota Defendants/ Third Party Plaintiffs (the Related Actions).1 Seven of the Related Actions are pending before Judge G. Stearns in the United States District Court for the District of Massachusetts. Because the Related Actions all assert common questions of fact and law for resolution under Massachusetts law,2 transfer of the Related Actions to Judge Stearns in the District of Massachusetts will maximize the convenience of the parties and witnesses and promote the just and efficient adjudication of these cases. Indeed, Judge Stearns has stated that [he] would be willing to accept an MDL appointment for all of the Leaf Funding cases that are pending in the Federal . . . courts.3 Accordingly, the Class Action Plaintiffs and the Minnesota Defendants/Third Party Plaintiffs respectfully request that the Judicial Panel on Multidistrict Litigation (the Panel) grant their request to consolidate and transfer the Related Actions to Judge Richard G. Stearns in the District of Massachusetts. II. FACTS COMMON TO THE RELATED ACTIONS4 Prior to November 2004, Agfa Corporation entered into purported lease agreements for the lease of complex, digital photographic developing equipment (the Lease Agreements) with various photo-imaging businesses (the Lessees) like the Class Action Plaintiffs and Minnesota Defendants/Third Party Plaintiffs. In some instances, Agfa Corporation also entered into agreements with the Lessees to provide service and maintenance for the photographic equipment (the Service Maintenance Agreements). On or about November 2, 2004, Agfa Corporation transferred its right to payment under the Lease Agreements and its obligations under the Service Maintenance Agreements to an entity called AgfaPhoto USA Corporation (AgfaPhoto). Thereafter, AgfaPhoto apparently transferred its rights to payment under the Lease Agreements to Leaf Funding, Inc. (Leaf). The Lessees in the
1 See Schedule of Related Federal Action, attached as Exhibit A to the accompanying Motion. These Schedules contain a list of the pending federal and state actions of which the Movants have knowledge of this time. 2 The Lease Agreements at issue, discussed more fully infra, in II of this Brief, including a provision requiring resolution of all disputes under Massachusetts law. See, e.g., 24 to Exhibit 6 of the Class Action complaint, attached hereto as Exhibit C (stating that [t]his Agreement shall in all respects be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts.) 3 See 8/9/06 Electronic Clerks Notes of Judge Stearns Scheduling Conference, attached as Exhibit D to the accompanying motion. 4 This is a summary of the facts alleged in various pleadings. The Plaintiffs reserve their right to rely on the pleadings on le which contain more detailed and specic factual allegations.

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Related Actions allege that AgfaPhoto, however, did not transfer its obligation to service and maintain the equipment to Leaf. Rather, according to the Lessees, AgfaPhoto terminated all of the Service Maintenance Agreements and ceased offering service or maintenance on any terms. The Lessees contend that, as a result, their equipment has been rendered virtually valueless and nonmarketable. III. PROCEDURAL BACKGROUND OF RELATED ACTIONS A. ACTIONS PENDING IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS Since early 2006, Leaf has initiated six actions in Massachusetts state courts against nonresident Lessees5 to recoup monies allegedly due under the Lease Agreements. In each of these six actions, following removal, the Lessees asserted various defenses and counterclaims against Leaf and initiated third-party actions against Agfa Corporation alleging that Leaf and/or Agfa Corporation wrongfully deprived them of service and maintenance of their photographic equipment. On June 19, 2006, Judge Stearns consolidated these actions under the action initially styled as Leaf Funding, Inc. v. Donald Bakewell and Troy Bakewell d/b/a Camelot Photography, Civil Action No. 06-10478-RGS (the Consolidated Action). On July 31, 2006, several Lessees (two of whom are also third-party plaintiffs in the Consolidated Action), Douglas Vieau and Metro Color Lab, Inc., d/b/a Metro Photo & Frames, Paula Carroll d/b/a Carroll Film Processing and John Carroll, Technical Photo, Inc. and John Castronovo, and Donald Bakewell and Troy Bakewell, d/b/a Camelot Photography, commenced a Class Action in the District of Massachusetts against AGFA and Leaf also assigned to Judge Stearns alleging that they wrongfully deprived the Lessees of service and maintenance of their photographic equipment. The Class Action Plaintiffs are seeking damages from AGFA and/or Leaf for their alleged violations of c. 93A, the UCC and breach of contract, as well as injunctive and declaratory relief on behalf of themselves and all others similarly situated. B. ACTIONS PENDING IN OTHER JURISDICTIONS On February 10, 2006, Thorne Management, Inc. commenced an action in Ohio state court against Leaf and Agfa Corporation alleging that service and maintenance of its photographic equipment had been wrongfully terminated. The case was subsequently removed to the United States District Court for the Northern District of Ohio (the Ohio Action). On June 9, 2006, Kwik Photo Inc. led an Amended Complaint against Agfa Corporation and Leaf in state court in Kentucky alleging that service and maintenance of its photographic equipment had been improperly terminated. This case was removed to the United States District Court for the Eastern District of Kentucky on July 6, 2006. On June 23, 2006, Leaf initiated an action against Kwik Photo, Inc., Charles F. Perry, Jr., and Donita Perry to recoup monies allegedly due under the Lease Agreement in the United States
5 Leaf initiated these actions based on a Massachusetts forum selection clause in the Lease Agreements.

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Consolidated Action pending in the District of Massachusetts. Thus, litigating in Massachusetts will in no way be inconvenient for those individuals and entities. The minimal inconvenience that transfer may impose on the three6 non-Massachusetts plaintiffs should not deter the Panel from granting this motion. See In re Dow Co. Sarabond ProductsLiab. Litig., 664 F. Supp. 1403, 1404 (D. Colo. 1987) ([T]he strong impetus of judicial economy which propels multidistrict consolidation mandates that instead of looking to the individual convenience of each party and each witness, the court must look to the overall convenience of all parties and witnesses. ) (emphasis in original); In re Coordinated Pretrial Proceedings in Antibiotic Antitrust Actions, 333 F. Supp. 299, 304 (S.D.N.Y. 1971) (recognizing that transfer would inconvenience many of the plaintiffs but stating that [s]uch individual inconvenience . . . must bow to the expedited progression accruing to all parties, as well as the court system, through this multidistrict litigation). C. TRANSFER OF THE RELATED ACTIONS WILL PROMOTE THE JUST AND EFFICIENT CONDUCT OF THE ACTIONS Third, consolidation and coordination of the Related Actions will minimize duplicative discovery and costs and expenses, prevent inconsistent pre-trial rulings, and promote the efficient resolution of these cases. 1. Transfer Will Prevent Duplicative Discovery And Motion Practice Because the Related Actions involve essentially the same set of facts and issues of law, discovery and dispositive motion practice will be largely the same in each case. With respect to discovery, for example, Agfa Corporation, a party in each of the Related Actions, and Leaf, a party in all of the Related Actions save one, will unquestionably be required to make at least one of their employees available for deposition in each case. They will also be required to produce the same documents in each of the Related Actions. With respect to motion practice, it is likely that one or more of the defendants and/or third-party defendants will le similar motions to dismiss and/or motions for summary judgment in the Related Actions. Transfer and consolidation of the Related Actions will obviate the unnecessary duplication of efforts to take discovery and engage in motion practice. 2. Transfer Will Prevent Inconsistent Pre-Trial Rulings If the Related Actions are not consolidated for pre-trial purposes, the risk of inconsistent rulings is high given that the same factual and legal issues are involved. The pendency of the Class Action makes this risk even greater. Arguably, all of the Lessees involved in the Related Actions are members of the purported class. Accordingly, any dispositive rulings made in that case will directly impact the claims brought by or against the Lessees in the other cases. 3. Transfer To The District of Massachusetts Will Promote Efficient Resolution Of The Related Actions Judge Richard G. Stearns, the judge presiding over the Consolidated Action and the Class Action, is already familiar with the
6 Of the three, one joins in this Motion.

District Court for the Eastern District of Kentucky (collectively the Kentucky Actions). On August 1, 2006, Leaf initiated an action against Richeld One Hour Photo Corp. and Larry Eastman to recoup monies allegedly due under the Lease Agreement in the United States District Court for the District of Minnesota (the Minnesota Action). The Lessee subsequently asserted various counterclaims against Leaf and initiated a third party action against Agfa Corporation alleging that Agfa Corporation wrongfully deprived them of service and maintenance of their photographic equipment. All of the Related Actions are in the initial pleading stages, and no discovery has been taken other than disclosures made pursuant to Fed. R. Civ. P. 26(a). IV. ARGUMENT The purpose of 28 U.S.C. 1407 is to ensure centralized management under a single courts supervision of pretrial proceedings in litigation arising in various districts to ensure the just, efficient and consistent conduct and adjudication of such actions. U.S. ex. Rel. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F. Supp. 2d 270 (D.D.C. 2002); In re Air Crash off Long Island, N.Y. on July 17, 1996, 965 F. Supp. 5 (S.D.N.Y. 1997); In re New York City Mun. Sec. Litig., 572 F.2d 49, 51 (2d Cir. 1978). Pretrial coordination and consolidation is appropriate when: (1) the related actions involve one or more common questions of fact; (2) transfer will further the convenience of the parties and witnesses; and (3) transfer will promote the just and efficient conduct of the actions. See 28 U.S.C. 1407. Here, all of these factors weigh in favor of consolidating and transferring the Related Actions to the District of Massachusetts. A. THE RELATED ACTIONS INVOLVE VIRTUALLY IDENTICAL QUESTIONS OF FACT AND LAW First, at the heart of each of the Related Actions are the same constellation of facts and issues of law. As an initial matter, the Lease Agreements executed by the various Lessees are identical. All of them require resolution of disputes under Massachusetts law. Moreover, AGFA and/or Leaf are alleged to have engaged in the same course of conduct, i.e., improperly terminating their service and maintenance obligations. Finally, the ultimate legal question for determination by the courts is the same: whether AGFA and/or Leaf engaged in purportedly wrongful activity that excuses the Lessees from making payments under the Lease Agreements and/or resulted in compensable damages. Because the Related Actions involve virtually identical questions of fact and law, consolidation and coordination is appropriate. See, e.g., In re Mutual Fund Sales Antitrust Litig., 361 F. Supp. 638, 640 (J.P.M.L. 1973) (transferring and consolidating actions with common questions of fact and law). B. CONSOLIDATION AND COORDINATION OF THE RELATED ACTIONS FOR PRE-TRIAL PURPOSES WILL MAXIMIZE THE CONVENIENCE OF THE PARTIES Second, consolidation and coordination of the Related Actions to the District of Massachusetts will unquestionably maximize the convenience of the parties. With the exception of the three Lessees in the non-Massachusetts cases, all of the parties in the Related Actions are already named parties in the Class Action and/or the

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issues in these Related Actions. See Klay v. Humana, Inc. 382 F.3d 1241, 1271 (11th Cir. 2004) ([I]t is desirable to concentrate claims in a particular forum when that forum has already handled several preliminary matters.) As a result, he will be more than capable of ensuring that discovery in the Related Actions proceeds efficiently and expeditiously. In re Republic Natl-Realty Equities Sec. Litig., 382 F. Supp. 1403, 1407 (J.P.M.L. 1974) (granting motion to transfer to district where thirteen of eighteen related cases were already pending before the same judge). Judge Stearns has previously presided over MDL proceedings and, therefore, is knowledgeable and experienced in the coordination of multiple litigations. In addition, the Lease Agreements at issue contain a provision requiring the application of Massachusetts law. Finally, Judge Stearns does not currently have a Section 1407 assignment and has indicated a willingness7 to preside over the Related Actions. See In re Pressure Sensitive Labelstock Antitrust Litig., 290 F. Supp. 2d 1374, 1376 (J.P.M.L. 2003) (identifying the transferee forums lack of multidistrict cases as support for the Panels decision to transfer); In re Comp. of Managerial, Profl and Technical Employees Antitrust Litig., 206 F. Supp. 2d 1374 (J.P.M.L. 2002) (ordering transfer to judge already assigned who was not burdened with another multidistrict litigation). V. CONCLUSION For the foregoing reasons, the Class Action Plaintiffs and the Minnesota Defendants/Third Party Plaintiffs respectfully request that the Panel grant this Motion and consolidate and transfer the Related Actions to the District of Massachusetts for pre-trial purposes. Respectfully submitted, [Attorneys for Class Action Plaintiffs] [Attorneys for the Defendants/Third Party Plaintiffs in the Consolidated Action] [Attorneys for the Defendants/Third Party Plaintiffs in the Minnesota Action] Dated: [Date] INTRODUCTION

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Plaintiffs Ralph Carreon Jr., Irma A. Carreon, Michael Owen Tebbs, and Lori Kay Tebbs (Plaintiffs) request that the Judicial Panel on Multidistrict Litigation (the Panel) vacate the conditional transfer order dated August 26, 2004, (CTO-3), which conditionally transferred Ralph and Irma Carreon, et al. v. Ocwen Federal Savings Bank, FSB Adv. No. 03-5151-LMC (Carreon) from the United States Bankruptcy Court for the Western District of Texas (Bankruptcy Court) to the United States District Court for the Northern District of Illinois and would consolidate it with MDL 1604, In re Ocwen Federal Bank FSB Mortgage Servicing Litigation. (MDL 1604). There is no substantial nexus between the facts of Carreon and the facts of MDL 1604. The Carreon case addresses Ocwens violations of the bankruptcy law, issues that are entirely foreign to the previously consolidated cases. Additionally, as noted by the Bankruptcy Judge hearing Carreon, Ocwen is attempting to manipulate the court system. Ocwen failed to promptly notify this panel of Carreon as a potential tag-along, apparently because it expected to obtain a dismissal order from the Bankruptcy Court. Only after the Bankruptcy Judge issued an opinion highly favorable to plaintiffs positions on bankruptcy issues did Ocwen rst initiate the process of requesting consolidation of this matter under the MDL rules. PROCEDURAL BACKGROUND On September 11, 2003, the Plaintiffs led a class action adversary proceeding in the United States Bankruptcy Court for the Western District of Texas against Ocwen Federal Savings Bank, alleging violations of the Bankruptcy Code, among other claims. Ocwen moved to dismiss the adversary complaint on October 24, 2003, asserting, inter alia, that Plaintiffs lacked standing to bring suit and that the matter was moot. On April 13, 2004, the Panel established MDL Action No. 1604, In Re Ocwen Federal Bank FSB Mortgage Servicing Litigation, to coordinate and consolidate putative class actions against Ocwen Federal Bank, FSB, Ocwen Financial Corp., Ocwen Federal Savings Bank, FSB, and Ocwen Federal Bank, (collectively, Ocwen), challenging various aspects of Ocwens mortgage servicing practices. Certainly, Ocwen had notice of the proceeding before this Panel no later than April 2004. Indeed, Ocwen is represented by the same lawyers at Reed Smith in both MDL 1604 and Carreon. Despite notice and common counsel, Ocwen failed to promptly notify the Panel of the pendency of Carreon as a potential tag-along in April 2004 as required by M.D.L. Rule 7.5(e). Ocwen was apparently satised either that there are no common issues between Carreon and MDL 1604 or that it would prevail on its motion to dismiss in the Bankruptcy Court. On May 10, 2004, the Bankruptcy Court issued an order denying Ocwens motion to dismiss that included substantial discussion favorable to Plaintiffs claim. Only then, on June 22, 2004, did Ocwen notify the MDL clerk of Carreon, by letter, to request consolidation. While the MDL transfer application was pending, Ocwen led a motion to stay the proceedings in the Bankruptcy Court, which the Bankruptcy Judge forcefully denied on the basis that the action is not likely to be transferred. See Order Denying Motion To Stay Proceedings Pending Decision From Judicial Panel On Multidistrict Litigation, dated July 25, 2004 (Exhibit 1). On June 21, 2004,

Y.3 Memorandum in Support of Motion to Vacate Conditional Transfer Order (Ocwen Federal Bank Mortgage Servicing Litigation)
BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION In re Ocwen Federal Bank FSB Mortgage Servicing Litigation ) ) ) ) ) MDL No. 1604 Memorandum in Support of Motion to Vacate Conditional Transfer Order

7 See 8/9/06 Electronic Clerks Notes of Judge Stearns Scheduling Conference in the Consolidation Action, attached as Exhibit D to the accompanying motion.

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law2 at the heart of the Carreon complaint. In MDL 1604, none of the Plaintiffs was charged fees or costs associated with bankruptcy proceedings. Rather, the types of charges characterized as improper charges in MDL are specically listed as recoverable breach fees, unnecessary hazard insurance premiums, attorneys fees (presumably for foreclosure), unexpended foreclosure-related fees and costs, and other fees that are either not legally due under the mortgage contract or applicable law, or that are in excess of amounts legally due. See Exhibit 3 at pg. 3. Nowhere in the pleadings led in MDL 1604 are fees related to bankruptcy proceedings mentioned, nor are any of the MDL Plaintiffs debtors in bankruptcy. If a Plaintiff was in bankruptcy or went into bankruptcy while the action was proceeding, it was not signicant enough for the claims involved to mention it in the complaint. In writing its opinion on Ocwens motion for stay of proceedings, the Bankruptcy Court addressed the jurisdictional issue posed by transferring and consolidating this case with those pending before the Northern District Illinois. The court states that it does not agree with the Ocwens conclusion that this litigation is likely to be included in the multidistrict litigation now pending in the Northern District of Illinois. See Exhibit 1 pg. 3. The Bankruptcy Court rejects Ocwens assertion that the basis of Plaintiffs complaint is merely the alleged improper charges and collection activity by Ocwen during the servicing of Plaintiffs loans. Rather, the Court distinguishes between the consolidated actions in MDL 1604 and Carreon by emphasizing the bankruptcy issues unique to the Carreon plaintiffs: Those issues include (1) whether the charges imposed during the course of a pending chapter 13 proceeding are discharged upon the debtors completion of the plan, (2) whether the charges can be recovered absent a court order authorizing their recovery under section 506(b) of the Bankruptcy Code, and (3) whether the imposition (or attempted imposition) of such charges would violate either the automatic stay or the discharge injunction. Id. The Court further states that the bankruptcy issues present in Carreon are not incidental issues, rather, they form the principle basis for this courts having subject matter jurisdiction over this matter. Id. In its Transfer Order, the Panel described the shared factual questions in the actions consolidated in MDL 1604 as arising out of allegations that Ocwen and/or other Defendants engaged in unfair loan servicing and/or debt collection practices i) in violation of the Real Estate Settlement Procedures Act, the Fair Debt Collection Practices Act, the Truth-in-Lending Act, the Fair Credit Billing Act, the Racketeer Inuenced and Corrupt Organizations Act and/or state consumer protection/unfair trade practices statfrom Ocwen requesting attorneys fees for such legal services as objecting to the conrmation of Plaintiffs bankruptcy plan, reviewing Plaintiffs bankruptcy plan, and preparing a proof of claim necessary for the bankruptcy proceeding. See Exhibit 2 pg. 4. 2 11 U.S.C. 362(a), 506(b), 524(a)(2) and 1327. Additionally, Fed. R. Bankr. P. 2016 is implicated.

the court issued a scheduling order. Pursuant to the courts scheduling order, Plaintiffs served discovery on Ocwens counsel on September 2, 2004. STATEMENT OF FACTS The Carreons and the Tebbs are Chapter 13 bankruptcy debtors. Their status as debtors in Bankruptcy Court is integral to their claims against Ocwen. None of the other Plaintiffs in MDL 1604 was in bankruptcy at the time of ling their complaints. The fees and costs at issue in Carreon include bankruptcy fees and costs, attorney fees for objection to the conrmation of chapter 13 plans, attorney fees for review of chapter 13 plans, and fees incurred in drafting a proof of claim. See Class Action Adversary Proceeding dated September 11, 2003, pg. 4 (Exhibit 2). The fees and costs at issue in MDL 1604 include recoverable breach fees, unnecessary hazard insurance premiums, attorneys fees, unexpended foreclosure-related fees and costs, but not fees relating to bankruptcy proceedings. See MDL 1604 Consolidated Class Action Complaint dated April 23, 2004, pg. 3 (Exhibit 3). The Plaintiffs in Carreon assert that Ocwens charges are in violation of the bankruptcy stay, 11 U.S.C. 362(a), of various provisions of the Bankruptcy Code, and of bankruptcy court orders. See Exhibit 2 at pg. 2. Even after consolidation of more than 10 pending cases in MDL 1604, the plaintiffs consolidated and amended complaint in the MDL proceeding makes no mention of bankruptcy or of claims that overlap with those in Carreon. See Exhibit 3 at pg. 3. ARGUMENT I. THE COMMON QUESTIONS OF FACT ARE NOT SUFFICIENT TO JUSTIFY TRANSFER. CTO-3 should be vacated as to Carreon because there are not sufficient common questions of fact between Carreon and MDL 1604 that would justify transfer. Rather, the bankruptcy-centered questions of fact and law that form the basis for the allegations in Carreon predominate over any shared facts. In determining whether a case is appropriate for transfer and consolidation to another district, the Panel must decide whether the claims alleged in each case share sufficient common questions of fact so as to promote the just and efficient conduct of the litigation. See 28 U.S.C. 1407. In making this determination, the Panel will consider whether the common questions of fact predominate over the unique questions of fact present in each case. In re Asbestos School Products Liability Litigation, 606 F. Supp. 713, 714 (J.P.M.L. 1985). Sufficient factual commonalty does not exist where the relationship between the parties in an action differs from that in the consolidated actions, even if the legal allegations are similar. In re United Gas Pipe Line Company Litigation, 391 F. Supp. 774, 776 (J.P.M.L. 1975). In its transfer request, the Ocwen incorrectly described the claims in Carreon by generalizing them as challenges to the legality of Ocwens loan servicing practices and focuses on several allegedly improper fees, in an attempt to group them with the consolidated actions in MDL 1604. See Letter Application dated June 22, 2004, pg. 1 (Exhibit 4). This description is wrong because it ignores the bankruptcy-related fees1 and breaches of bankruptcy
1 For example, Plaintiffs received a letter dated April 25, 2003,

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utes, as well as ii) based upon various common law theories of liability. See MDL 1604Transfer Order, pg. 2 (Exhibit 5). By contrast, in Carreon, the Plaintiffs claims arise as violations of the Bankruptcy Code. Plaintiffs allege that Ocwen is attempting to obtain or exercise control over property of the debtors bankruptcy estate in violation of 11 U.S.C. 362(a)(3). The Carreon plaintiffs also allege that Ocwen is seeking fees and costs as elements of their allowed secured bankruptcy claims in violation of the provisions of 11 U.S.C. 506(b). That provision allows recovery of certain fees only to the extent that an allowed secured claim is secured by property the value of which . . . is greater than the amount of such claim. Plaintiffs also allege that Ocwen has violated their chapter 13 plan conrmation orders by charging them fees and costs that are inconsistent with these bankruptcy court orders. Not only are these issues legally and factually distinct from M.D.L. 1604, but also they are issues which require the specialized expertise of the Bankruptcy Court. II. TRANSFER AND CONSOLIDATION OF CARREON WILL NOT PROMOTE THE JUST AND EFFICIENT CONDUCT OF THE ACTION. A. It Would Be Unjust to Reward Ocwen for Failing to Promptly Notify the Panel of the Carreon Action as Required by Rule 7.5(e). The insufficient degree of factual commonality between Carreon and MDL 1604 makes transfer inappropriate as it would not serve the overall convenience of the parties and witnesses or promote the just and efficient conduct of the litigation. The factor the Panel weighs most heavily in determining whether an action should be transferred is whether transfer would promote the just and efficient conduct of the actions. See James Wm. Moore et al., Moores Federal Practice 112.04[1][d], (3d ed. 1997), pgs. 11242-112-43. The Panel has denied transfer where common questions of fact exist, but the transfer would not serve the convenience of the parties or promote the just and efficient resolution of the case. In re McDonnell Douglas Wild Weasel AN/APR38 Contract Litigation, 415 F. Supp. 387, 388 (J.P.M.L. 1976). As the Bankruptcy Judge noted in its decision denying Ocwen a stay pending these proceedings: The court is troubled by a number of aspects of this request for stay. First and foremost the court notes that the hearing on the motion to dismiss this case was held on May 10, 2004 and that Reed Smith LLP was reected as of counsel to the Defendant on the moving papers as of that date. At no point, however, did counsel advise the court at the hearing that there was multi-district litigation pending that might have an impact on the administration of this case. At the conclusion of the hearing, the court gave the Defendant until May 25, 2004 in which to le an answer. The Defendant then sought an extension of time to answer, until June 10, 2004. Fifteen days following its answer (and shortly after this court had issued its standard scheduling order), Defendant for the rst time advises the court of the pendency of the

Appx. Y.3

multidistrict litigation, and asks for a stay until the MDL Panel has reviewed its letter request. The Defendants timing maximized delay in its favor and tended to increase the costs of litigation for the Plaintiffs. What is more, the Defendants timing has the unpleasant taint of forum shopping about it, as it awaited a ruling on its motion to dismiss before advising the multidistrict litigation panel of the action. See Exhibit 1 pg. 2. The Bankruptcy Court further notes that no court should reward delay with more delay. Id. See generally Cassidy v. Wyeth-Ayerst Laboratories Div. of American, 42 F.Supp.2d 1260 (M.D.Ala.1999) (court should not reward use of tactics grounded in improper motives designed to obtain transfer of actions to a more favorable forum). It would be both unjust and inefficient to allow parties to manipulate the MDL proceedings to seek an outcome in one forum and then to attempt to move the action as a tag-along when the outcome is unfavorable. Ocwen could have sought a transfer order many months before it did. Failure to do so led to substantial expenditure of resources by the Bankruptcy Court and the Plaintiffs. Ocwen should not now be heard to complain that failure to transfer is inconvenient to it. B. The Specialized Expertise of the Bankruptcy Court Makes It Efficient to Allow the Carreon Action to Proceed in That Forum. Many courts have held that core proceedings under 28 U.S.C. 157(a) that are grounded in rights created by the Bankruptcy Code must be heard in the bankruptcy court. This maintains the integrity of the bankruptcy process and provides the expertise inherent in the design of a specialized court. For example, the Second Circuit has noted: . . . the automatic stay allows the bankruptcy court to centralize all disputes concerning property of the debtors estate in the bankruptcy court so that reorganization can proceed efficiently, unimpeded by uncoordinated proceedings in other arenas. In re Ionosphere Clubs, Inc., 922 F.2d 984, 989 (2nd Cir. 1990). See also e.g., In re United States Lines, Inc., 197 F.3d 631 (2d. Cir. 1999) cert denied 529 U.S. 1038, 120 S. Ct. 1532, 146 L. Ed. 2d 347 (2000); In re Gandy, 299 F.3d 489 (5th Cir. 2002); In re National Gypsum Co., 118 F.3d 1056 (5th Cir. 1997); Zimmerman v. Continental Airlines, Inc., 712 F.2d 55 (3d Cir. 1983), cert. denied 464 U.S. 1038, 104 S. Ct. 699, 79 L. Ed. 2d 165 (1984). Among other things, this allows the bankruptcy court to oversee any funds recovered and ensure that assets available to creditors are distributed equally. See In re Southern Star Foods, Inc., 144 F.3d 712 (10th Cir. 1998) (equality among creditors is an overriding bankruptcy policy). Because these issues are not present in MDL 1604, the Carreon action should not be transferred. The action can most efficiently be resolved by a Court whose purpose is to oversee the effective enforcement of the Bankruptcy Code.

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CONCLUSION Plaintiffs complaint asserts three claims. The rst is that Ameriquest failed to furnish them proper 3 day notices of right to cancel the loan required by the Truth in Lending Act in that the deadline for cancellation by them [plaintiffs] was not lled in; (paragraph 9). This is clearly an individual factual issue: was the deadline lled in on the copies of the notices of right to cancel plaintiffs received or not? The second claim is that Ameriquest failed to make accurate material disclosures required by the Truth in Lending Act. The disclosures of the APR, nance charge and amount nances were allegedly inaccurate because plaintiffs were assessed unreasonable settlement charges of $12,420 in connection with this loan, including the following fees paid to Ameriquest: loan discount fee of $7,151.76, $360 application fee, $239 administration fee, $626 Lender Processing fee, and a $475 reconveyance fee . . . and [these] charges should have been included as nance charges because they are unreasonable in amount. (Paragraphs 8 and 10) It is undisputed that these fees were not included as nance charges. The determinative factual issue is whether these fees were unreasonable for transactions in New Orleans at the time, and this is likewise an individual factual issue. The third claim is that a loan officer for Ameriquest, [Loan Officer 1], fraudulently induced them to take out the loan by misrepresenting to them prior to the closing that, if they made the required monthly payments on time for a few months, their payments would then go down . . . [Ameriquest] obtained plaintiffs consent to this unconscionable loan as a result of fraud and error . . . [plaintiffs] did not understand that the interest rate and payment amount could only increase. (Paragraph 7) Whether the alleged misrepresentations were in fact made by Ameriquests representative in New Orleans, [Loan Officer 2], and whether plaintiffs relied on them to their detriment, are individual factual issues. Further, the witnesses to whether the deadline for cancellation was lled in, whether the settlement charges are reasonable in the New Orleans community, and whether [Loan Officer 2] made the alleged misrepresentations are all in New Orleans. Discovery in this individual case will be discrete and will not cover the same ground as that in the actions now pending or being considered for transfer to the MDL. Thus the convenience of the witnesses and parties would not be served by transfer. Moreover, given the individualized nature of the factual issues which will determine the outcome of this case, pre-trial motions will not be dispositive of plaintiffs claims. For the same reason, this case would not be part of a global settlement, even if one were to be reached for the class actions in the multi-district litigation. Hence, efficiency and judicial economy will not be served by transfer. [Insert in cases where applicable: This action is well advanced and {the discovery cutoff date is near} {substantial discovery has taken place} {motions have been heard} {a trial date has been set}. Therefore, transfer would not further the efficiency purposes of the multidistrict litigation statute. See, e.g., In re Lite Beer Trademark Litig. , 437 F. Supp. 754, 755 (J.P.M.L. 1977)); In re Cessna Aircraft Distributorship Antitrust Litigation, 460 F. Supp. 159 (J.P.M.L. 1978); In re Asbestos School Prods. Liab. Litig., (Nl. VI), 771 S. Supp. 415, 418 (J.P.M.L. 1991); In re Cable Tie Patent Litig., 487 F. Supp. 1351, 1354 (J.P.M.L. 1980); In re Brandywine Associates Antitrust & Mortg. Foreclosure Litigation, 407 F. Supp. 236, 238 (J.P.M.L. 1976); In re Bourns Patent Litigation, 385 F

For the reasons stated herein, Plaintiffs respectfully request that that the Panel grant Plaintiffs motion to vacate CTO-3 as to Carreon. Dated: [Date] Respectfully Submitted, [Plaintiffs] By their attorney, [Attorneys for the Plaintiffs]

Y.4 Memorandum in Support of Motion to Vacate Conditional Transfer Order (Ameriquest Mortgage)
Docket No. BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION ) In Re Ameriquest Mortgage Co. ) Mortgage Lending Practices ) Litigation ) ) MEMORANDUM IN SUPPORT OF MOTION TO VACATE CONDITIONAL TRANSFER ORDER This court has entered a conditional transfer order which includes the following action [Your Case Caption]. For the reasons set forth below, the order should be vacated, not made nal and not transmitted to the Clerk of the United States District Court for the [Your Home Court]. The three prerequisites to transfer under the multidistrict litigation statute are: (1) one or more common questions of fact, (2) transfer must be for the convenience of parties and witnesses, and (3) transfer must promote the just and efficient conduct of such actions. 28 U.S.C. 1407(a). These requirements are to a substantial extent interrelated. Each will be discussed in turn below. In general, transfer is not warranted where there are few common questions of fact, and the ones that exist are not complex and do not predominate the individual factual issues. See, e.g., In re Asbestos School Prods. Liab. Litig., 606 F. Supp. 713, 714 (J.P.M.L. 1985); In re Westinghouse Elec. Corp. Employment Discrimination Litig., 438 S. Supp. 937, 939 (J.P.M.L. 1977); In re U.S. Navy Variable Reenlistment Bonus Litigation, 407 F. Supp. 1405, 1407 (J.P.M.L. 1976). Here, there are only individual factual issues. This case was led on [Add Date] under the Truth in Lending Act, 15 U.S.C. 1601, et seq. and state law to enforce the right of plaintiffs [Names of Plaintiffs], husband and wife, to rescind a November 10, 2004 predatory loan from Ameriquest Mortgage Company which resulted in a rst mortgage on their home, and for damages caused by defendants illegal and fraudulent conduct.

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Supp 1260 (J.P.M.L. 1974); In re McDonnell Douglas Wild Weasel AN/APR-38 Contract Litigation, 415 F. Supp. 387 (J.P.M.L. 1976).] CONCLUSION For the foregoing reasons, the conditional order or transfer in this particular action should be vacated. not made nal and not be transmitted to the Clerk of the United States District Court for the [Your Home Court]. Respectfully submitted,

Appx. Y.5

Y.5 Memorandum in Opposition to Defendants Motion to Stay Proceedings (Federal Savings Bank)
IN THE UNITED STATES BANKRUPTCY COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION ) ) ) ) Debtor ) Ralph Carreon, Jr. ) Irma A. Carreon ) ) Michael Owen Tebbs ) Lori Kay Tebbs ) ) on behalf of themselves and all ) others similarly situated, ) Plaintiffs ) ) v. ) ) ) Defendant Federal Savings ) Bank, FSB ) Defendant. ) ) In Re Ralph Carreon, Jr. Irma A. Carreon

The Defendant has recently sought to have this action consolidated as part of a Multidistrict Litigation (MDL) proceeding against it, pending in the Northern District of Illinois. The transfer order involving other cases subject to that proceeding was entered in April 13, 2004, but MDL proceedings had been pending for at least two months prior to the transfer. The Defendant has attached a copy of the transfer order to its Motion to Stay as Exhibit A. Of particular relevance is note 1 to the transfer order. Therein the MDL panel states[t]he panel has been notied that four potentially related actions have been led . . . This action is not listed. Thus, it is clear that the Defendant is now attempting to manipulate the MDL process. Although it knew of this action when the MDL panel was undertaking its review, it neglected to inform the MDL panel court that this matter was potentially related. See Multidistrict Litigation R. 7.5(e) (requiring Defendants counsel to promptly notify the panel of any actions that may be considered related). Thus, the Defendant presumably believed at the time of the process before the MDL panel either that the action was not related within the meaning of the MDL rules or that it would prevail in its Motion to Dismiss in this Court. Having lost that motion, it now rst asserts that the matter is related. Plaintiffs intend to oppose the request for transfer of this action by proceeding before the MDL panel. It is Plaintiffs position that neither that panel, nor this Court, should countenance manipulation of the litigation process by a Defendant seeking to use the MDL process to obtain what it now views as a more favorable forum. ARGUMENT Prior to a transfer order, an action before the MDL panel does not limit the pretrial jurisdiction of this Court. MDL R. 1.5. Nor does it provide a stay to the litigants. Id. Plaintiffs intend to oppose a transfer order for this case, pursuant to MDL R. 7.3 or 7.4, on at least the following grounds: Defendant has known about this action since it was served in October 2003. Defendant was thus fully aware of this case while the initial proceeding before the panel was pending. It chose not to seek a transfer order at that time because it expected a favorable ruling on a then pending motion to dismiss from this Court. Only when Defendants motion was denied did Defendant seek transfer. Defendant mischaracterizes this matter as primarily a mortgage overcharge case by failing to acknowledge Plaintiffs claim that the fees and charges at issue violate Bankruptcy Court orders and specic bankruptcy statutory provisions. These are matters uniquely within the core jurisdiction of the Bankruptcy Court. The Bankruptcy Court is a court of specialized jurisdiction that is in a better position to evaluate the issues here than the District Court that received the referral of the MDL proceedings. Although a conditional transfer order has not yet issued, Plaintiffs have sought to prevent that transfer order from being entered by notifying the clerk of their opposition. See Letter to Michael Beck, Clerk of the MDL Panel, attached hereto as Exhibit 1. See also MDL R. 7.5(b). If a conditional transfer order or order to show cause is entered, Plaintiffs will have an additional opportunity to oppose transfer pursuant to MDL Rules 7.3 and 7.4. Plaintiffs

Chapter 13 Bankruptcy No. 03-50035-LMC-13 Adv. No. 03-5151-LMC

PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION TO STAY PROCEEDINGS Plaintiffs oppose the Defendants Motion to Stay Proceedings Pending Decision From Judicial Panel on Multi-District Litigation for the following reasons and request that the motion be denied: INTRODUCTION This adversary proceeding was led in September 2003. Plaintiffs allege that the Defendant has charged a variety of bankruptcy and/or default-related fees and costs in violation of applicable law, including the automatic stay and other orders entered under the Bankruptcy Code. The defendants Motion to Dismiss the Complaint was denied in May 2004 and plaintiffs are now moving forward with necessary discovery.

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The Defendant here did not [] appropriately seek transfer at the time of the initial proceeding before the MDL panel and thereby caused expenditure of resources by both the Plaintiffs and this Court. It should not now be allowed to obtain a stay in order to frustrate the Plaintiffs discovery efforts while its late application to transfer is pending. This Court need not resolve issues related to transferability of this action. Nor does it need to expend substantial resources to oversee the discovery process. However, the Court can and should deny the Defendant a stay at this time in order to prevent the Defendants attempt to forum shop and/or to delay or frustrate Plaintiffs necessary discovery. CONCLUSION For the foregoing reasons, the Plaintiffs request that the Court deny the Defendants Motion to Stay Proceedings and allow this case to proceed. Respectfully submitted, [Attorneys for Plaintiffs]

believe that there is then a reasonable possibility that the action will not be transferred. The process itself is likely to take at least 90 days. The Defendant here cannot meaningfully assert prejudice to it by allowing the discovery process to proceed during that 90 day period. The discovery the Plaintiffs seek here will also be available from the Defendant if a transfer order is granted. Allowing discovery to continue will expedite this litigation if the MDL panel ultimately declines to transfer this matter. The Defendant cites a number of cases in which a stay applicable to motion practice has been granted, but none of those cases applies to the instant factual situation. Plaintiffs could not nd case law memorializing a stay in circumstances where the party seeking the stay had previously and knowingly allowed an action to proceed contemporaneously with MDL proceedings. Nor could they nd a case in which a stay was entered solely to prevent ongoing discovery. Indeed some courts have noted their broad discretion over stays in similar contexts and have suggested that stays should rarely be granted. Weisman v. Southeast Hotel Prop. Ltd. Partnership, 1992 WL 131080, at *6 (S.D.N.Y.1992) (citing Wright, Miller & Cooper, Federal Practice and Procedure 3866 (1986)).

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