MDLs 101: Primer on Multi-District Litigation

What is an MDL?

In a multi-district litigation (MDL), related federal civil cases in different jurisdictions are transferred to one judge for consolidated pretrial proceedings via 28 U.S.C. §1407. Cases may be consolidated if they involve one or more common questions of fact, if the transfer is for the convenience of the parties and witnesses, and if the transfer will promote just and efficient conduct of the case. The goal of MDLs is to avoid discovery duplication, to prevent inconsistent pretrial rulings, and to conserve the resources of the parties and the judiciary in similar cases. As of November 2016, 245 different MDL dockets are being heard in 56 different transferee districts, with over 133,000 actions currently pending. Neither South Dakota nor North Dakota has ever had an MDL in its federal district courts.

Who decides whether a case will be consolidated into an MDL?

The JPML consists of seven sitting federal judges, appointed by the Chief Justice of the United States Supreme Court, none of whom may be from the same judicial circuit. No statutory term limits exist for JPML members, but in 2000, Chief Justice William H. Rehnquist established a policy of seven-year staggered terms for each member. Chief Justice John G. Roberts, Jr. has continued that policy. Current JPML members are: Chairwoman Hon. Sarah S. Vance (E.D. La.), Hon. Marjorie O. Rendell (3rd Cir.), Hon. Charles R. Breyer (N.D. Cal.), Hon. Lewis A Kaplan (S.D.N.Y.), Hon. Ellen Segal Huvelle (D.D.C.), Hon. R. David Proctor (N.D. Al.), and Hon. Catherine D. Perry (E.D. Mo.).

How is an MDL created?

Any party can petition the JPML to have a group of cases consolidated, or the JPML can do so on its own initiative. The JPML holds regular hearings throughout the country every two months to consider MDL petitions. At each hearing, the JPML usually considers 15-20 motions for creation of new MDLs. Parties appear for oral arguments, with some motions having 20 or more attorneys argue. If the Panel grants the motion to consolidate, pending cases are transferred to a transferee court, and later-filed substantially similar cases are transferred to that MDL court as “tag-along” actions.

What type of cases can be consolidated into an MDL?

Either class action or individual lawsuits, or a combination of both, can be consolidated into one MDL. MDLs can involve many types of cases, like patient validity and infringement; antitrust price fixing; securities fraud; employment practices; or mass torts, such as a mass disaster like an airplane crash, train wreck, or hotel fire, or toxic torts like asbestos or environmental contaminants, or products liability like medical devices, pharmaceuticals, or other types of products.

What powers does the MDL Transferee Court have?

MDL courts are tasked with overseeing all pretrial proceedings, including discovery, class certification issues, and evidentiary and dispositive motions, and may exercise all the powers available to a federal judge in any other case. If an action survives dispositive motions, 28 U.S.C. §1407 provides that actions “shall be” remanded back to their original districts at the conclusion of pretrial proceedings. In practice, however, many MDL courts conduct one or more bellwether trials through various methods, such as having the parties consent to trial in the transferee MDL court. While cases do occasionally get remanded, the JPML has recognized that most often, MDL cases will settle in the transferee court.

Originally published in The Barrister by the South Dakota Trial Lawyers Association, Issue 289, November/December 2016. Reproduced with permission.