================ MDL No. 08-0956 ================ IN RE PETROLEUM WHOLESALE L.P. LITIGATION ================================================== ON REVIEW BY THE MULTIDISTRICT LITIGATION PANEL ================================================== PRESIDING JUDGE PEEPLES delivered the opinion of the MDL Panel.

In 2008, three class action cases were filed in Ellis, Galveston, and Harris Counties, alleging that the defendants engaged in illegal gasoline pricing. At the defendants’ request, we stayed the proceedings and in February 2009 granted their motion seeking appointment of a pretrial MDL judge.1 In May the plaintiffs notified us that the Ellis and Galveston cases had been nonsuited; they asked us to withdraw the stay and, in effect, to rescind our MDL order.

They argued that with only one case pending there was no longer any basis for MDL proceedings. In June, we agreed with their request and rescinded our MDL order. Because we had not at that time named a pretrial judge, the one remaining case is still pending in Harris County, where it was filed. Defendants have made several arguments in opposition to the plaintiffs’ request that we set aside our MDL ruling.

Defendants first argue that Rule 13 does not authorize the MDL Panel to rescind a transfer order. The rule in fact does not speak to this issue one way or the other. In certain

Next, the defendants make two arguments that rest on possible future events—that the old cases might be refiled and that new tag-along cases3 might later be filed. They suggest that if we rescind our order the plaintiffs might later simply re-file the cases in Ellis and/or Galveston Counties (or ask those courts to reinstate them). Plaintiffs say they will not do this, and because of their assurances and because the gamesmanship of refiling would be so obvious, we consider the likelihood of refiling to be minuscule. Defendants’ other argument is that similar tag-along

Defendants’ final argument concerns the remaining issues in the Ellis and Galveston County trial courts. They say that issues of costs, sanctions, and attorneys’ fees are still pending in those counties. Whatever may be the status of such issues, they have no bearing on our decision to rescind our MDL order. Nothing that we have said or done in this matter has removed those issues from the trial courts. In February, we granted the MDL motion, but we did not take the next step of ordering the cases transferred to a particular pretrial judge. The cases therefore have remained pending in the original trial courts. Those courts still have jurisdiction to grant the nonsuits and sign dismissal orders and also to dispose of any claims for affirmative relief that may be pending, subject to the rules of trial court jurisdiction and procedure after a notice of nonsuit has been filed. See TEX. R. CIV. P. 162; In re Bennett, 960 S.W.2d 35, 38 (Tex. 1997); University of Texas Medical Branch v. Estate of Blackmon, 195 S.W.3d 98, 100-101 (Tex. 2006). We intimate nothing about the extent of plenary power remaining or how those courts might exercise their discretion. We simply say that the issues remaining in the trial courts have no relevance to our decision to set aside our MDL order.

For the reasons stated, the stay order and order of transfer are rescinded.

JUSTICES STONE, MCCLURE, WRIGHT, and BROWN concur.

_____________________________ David Peeples, Presiding Judge OPINION DELIVERED: August 5, 2009