Academic journal article The Review of Litigation

The Beginning of MDL Consolidation: Should Cases Be Aggregated and Where?

Academic journal article The Review of Litigation

The Beginning of MDL Consolidation: Should Cases Be Aggregated and Where?

Article excerpt

DISCUSSION.........................................229

I. Current Practice: The Judicial Panel on Multi-District Litigation currently schedules oral argument on all motions for §1407 consolidation........................229

II. Current Practice: The factors favoring venue selection.. 231

III. Current Practice: Absent unusual circumstances, the Panel has often ordered centralization where a number of putative class actions are pending and overlapping classes are sought, largely to avoid the potential for inconsistent rulings on class certification.......................................232

IV. Current Practice: The Panel occasionally grants a consolidation motion seeking to join multiple manufacturers or other corporate defendants in a single MDL, since all are alleged to have engaged in an unlawful, industry-wide practice .................................................233

V. Current Practice: MDL consolidation of individual personal injury claims-designed to promote efficiencies in handling multiple cases-nonetheless attracts numerous claims that would otherwise not have been pursued....................234

VI. Current Practice: Several MDL courts have recently "bundled" multiple cases for a single bellwether trial, over the defendant's objection..............................236

CONCLUSION..............................................239

DISCUSSION

With hundreds of judges managing MDL cases, case management procedures can vary. Nonetheless, certain practices have proven useful enough to be followed in many MDL transferee courts.

I. Current Practice: The Judicial Panel on Multi-District Litigation currently schedules oral argument on all motions for §1407 consolidation.

In the majority of cases, the odds are that petitions for consolidation will be granted. Between 2003 and 2008, for example, such motions were granted in roughly three-quarters of the petitions seeking consolidation. More recently, the current JPML began the year of 2016 more cautiously, consolidating only 14 MDLs in the first nine months, but granted a more typical nine of thirteen petitions at its September 2016 session in Washington, D.C.2

Nonetheless, the JPML schedules oral argument for every §1407 petition.3

A. For Consideration-. The Panel should consider selecting for oral argument only those cases where (a) one or more parties objects to consolidation; (b) it believes there is a significant question about the advantages of consolidation; and/or (c) it believes that counsel can provide important input into the selection of the transferee court that has not already been conveyed in the briefing.

Because the decision to centralize is often uncontroversial, and major factors influencing the location of the transferee court may be unknown to the parties, it is unnecessary to allow every party to every petition for MDL centralization to present oral argument. Former Chief Judge of the JPML, John Heybum, has pointed out that the Panel generally must accommodate fifty to seventy advocates during the normal two and one-half horn session.4 In most cases, the information needed by the Panel will be available from the briefs or from its own informal contacts with potential transferee courts. And yet, counsel for the parties spend time preparing for oral arguments and incurring significant costs to present two to three minutes of oral argument that, in most cases, will have little influence on the Panel's ultimate decision. Limiting oral argument to the three categories of cases identified above would allow the parties additional time to make meaningful arguments in those cases where the briefing has revealed a realistic debate about the wisdom of consolidation.

II. Current Practice: The factors favoring venue selection include: agreement by all parties to the forum/judge; a transferee court's familiarity with the case; a judge's publicly or privately expressed interest in serving; concentration of witnesses or documents within the district; lack of docket congestion; location of a majority of the actions; the experience of the judge in the relevant area; the possibility of coordination with related state court proceedings; pendency of related qui tarn, bankruptcy or grand jury proceedings in the district; location of the first-filed action; and travel and lodging convenience. …

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