Congress authorized the formation of an MDL in Title 28 U.S.C. 1407. Subpart (a) states that, “When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings.” Typically, litigation that qualifies for an MDL involve complex disputes between many similarly situated plaintiffs located in various districts across the country and common defendants. One of the advantages of an MDL is lower costs for litigation due to the streamlining of discovery and the cutting down of duplicative discovery. Another is that an MDL creates a forum where all parties are under one roof which helps to facilitate settlement. If settlement is not reached by a certain point, the cases filed in the MDL are transferred back to their respective venues for trial.
An MDL setting is also beneficial to those plaintiffs who have filed similar claims in state court which are not acceptable for transfer to the MDL. Recently, an emphasis has been placed on coordination between the two jurisdictions, allowing for discovery coordination and settlement negotiations. An August 23, 2010 article on www.law.com emphasized this importance by reporting on In re Total Body Formula, an MDL assigned to Judge David Proctor in the Northern District. Judge Wong of DeKalb County Georgia presided over several similar lawsuits which were filed in Georgia state court. Judge Wong noted that District Judge Proctor actively promoted cross-jurisdictional cooperation and invited him to participate in the mass mediation that resulted in a settlement of the cases consolidated in the MDL and some of the cases pending in various state courts. The article noted that the lawyers appreciated the electronic document repository that the federal court created for all pending cases, whether filed in federal court or state court.
As authorized under Title 28 U.S.C. 1407(d), the MDL panel consists of seven circuit and district judges throughout the country who are appointed by the Chief Justice of the United States Supreme Court. No two judges can be from the same circuit and a concurrence of four members of the panel shall be necessary for any action. Once civil actions are docketed with the MDL panel, the panel is tasked with making the decision of which venue to transfer the MDL. The MDL panel also decides the particular judge who will preside over the MDL in the chosen venue.
Parties file memorandum briefs with the panel advocating for the transfer of the MDL to certain venues and even certain judges within those venues. Each filing party is also permitted to file a separate statement limited to one page setting forth reasons why oral argument should, or need not, be heard. Requests for hearings are typically granted, but oral argument is brief. A party is generally given no more than two to three minutes to present their oral argument in front of the panel.
Multiple factors are considered by the panel in deciding which district court to assign an MDL. A list of what appears to be the most important current factors include: (a) significant pretrial progress of an action pending in the transferee district; (b) the docket conditions or resources of the transferee judge or district; (c) the geographic centrality or proximity of the transferee district to the filed actions; (d) the proximity of the transferee forum to relevant documents or potential witnesses; (e) the general experience of the transferee judge; (f) the familiarity of the transferee judge with the factual or legal issues in the MDL due to presiding over a previous action involving similar issues; (g) the accessibility of the transferee district court; and (h) the proximity of the transferee district to the conduct or event at issue.
The panel has broad discretion in determining the district to which an MDL is transferred. The weight given to each factor depends on the issues and facts of the MDL. However, one of the most important factors appears to be the experience of the transferee judge. In In re Silicone Gel Breast Implants Prods. Liab. Litig., Docket No. MDL-926, the panel transferred pending breast-implant litigation to the Northern District of Alabama and assigned the litigation to Judge Samuel Pointer, a former member of the MDL panel, even though no action was currently pending in that district. The panel stated that they assigned the MDL to Judge Pointer because of his experience and ability to handle such an important and challenging assignment. Another important factor is the docket conditions of the transferee judge and district. In practice, the panel evenly spreads MDL’s throughout the country, thus ensuring that a single district is not strapped unnecessarily with a heavier load of multi-district cases.
MDL’s can be a great avenue for your client’s case. They can potentially cut down on costs, expenses and time. Although determining where an MDL will be transferred is not an exact science, it is important to understand the factors that go into that decision.
(portions of this post appeared in an article written by Booth Samuels
for the Alabama Association for Justice Journal)
