Academic journal article The Review of Litigation

Overview of Multidistrict Litigation Rules at the State and Federal Level

Academic journal article The Review of Litigation

Overview of Multidistrict Litigation Rules at the State and Federal Level

Article excerpt

Enacted in 1968, 28 U.S.C. § 1407 (the "MDL Statute") permits the transfer and consolidation of related cases pending in federal districts throughout the United States. ' In practice, the MDL Statute has been instrumental in expeditiously disposing of thousands of complex cases.2 As enacted, however, the MDL Statute has its limitations.3 Most notable is the absence from the MDL Statute of any formal mechanism for coordinating related cases pending in both state and federal courts.4 This Article discusses ways to overcome this "gap" in the MDL Statute and provides a checklist for practitioners involved in multidistrict litigation before the Judicial Panel on Multidistrict Litigation ("the MDL Panel").

I. CREATION OF THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION

Numerous closely-related civil lawsuits involving conspiracy allegations among electrical equipment managers-more than 1,800 civil damage actions filed in thirty-three different federal district courts-that arose in the wake of successful criminal antitrust prosecution by the government, were filed in the early 1960s.5 The judges and attorneys involved in the litigation cooperated to coordinate pre-trial proceedings, including:

1. The scheduling of coordinated pretrial discovery proceedings;

2. The utilization of national depositions with lead counsel chosen for plaintiffs and defendants; and

3. The establishment of a central document depository containing over 1,000,000 documents, which were made available to all the parties.6

In addition, the Judicial Conference of the United States under the direction of Chief Justice Earl Warren established a special panel-the Coordinating Committee for Multiple Litigation of the United States District Courts-to handle the cases.7 In large part due to these efforts, all of the actions were disposed of by 1968, far earlier than had been anticipated.8

Building on its experience in this litigation, the Judicial Conference proposed the enactment of what is now the MDL Statute, which included the establishment of a special judicial panel on multidistrict litigation.9 As stated in congressional proceedings leading to the enactment of the MDL Statute:

The objective of this legislation is to provide centralized management under court supervision of pretrial proceedings of multidistrict litigation to assure the 'just and efficient conduct' of such actions. The committee believes that the possibility for conflict and duplication in discovery and other pretrial procedures in related cases can be avoided or minimized by such centralized management.10

To administer the MDL Statute, Congress simultaneously created the MDL Panel.11 The MDL Panel offices are located in Washington, D.C., and the MDL Panel is comprised of seven Panel judges (one chairman and six associate judges) designated by the Chief Justice of the Supreme Court.12 The term the MDL Panel judges are to serve is not statutorily set; however, in practice, the judges generally sit for approximately seven years.13 By statute, panel judges must be selected from federal appellate and district court judges, no two of whom are permitted to be from the same circuit.14

II. PROCEDURE FOR INITIATING MULTIDISTRICT LITIGATION

Pursuant to the MDL Statute, transfer proceedings can be initiated by motion of a party, or by the MDL Panel acting sua sponte.15 Rules of Procedure of the Judicial Panel on Multidistrict Litigation control the filing of a motion to transfer.16 The procedures and requirements gleaned from these rules, the MDL Statute, and case law interpreting each are discussed below.

A. Check 1-File a Motion to Transfer with the MDL Panel and a Motion to Stay or Adjourn in Each District Court in Which an Action to be Transferred is Pending

A motion to transfer is filed with the MDL Clerk of Panel in Washington, D.C. A copy of this filing is also filed in each district court in which an action is pending that will be affected by the motion. …

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