Multidistrict Litigation: an Overview for Practitioners
| Publication year | 1982 |
| Pages | 2 |
1982, January, Pg. 2. Multidistrict Litigation: An Overview for Practitioners
In the early 1960s thirty-five federal district courts cooperated in handling over 1,900 lawsuits following the electrical equipment antitrust conspiracy which preceded that decade. The result was a case of "unprecedented judicial economy."(fn1) Consequently, in 1968 Congress provided by statute for the transfer to a single district of all cases involving similar questions of fact which are pending in multiple districts.(fn2) Since that time, over 6,000 actions have been transferred by the Judicial Panel on Multidistrict Litigation ("Multidistrict Panel").(fn3)
Practitioners frequently view litigation in the multidistrict context as a morass of procedural intricacies better left to computer software experts than to litigators. On the contrary, litigation under the multidistrict rules is relatively straightforward and practical and, in most instances, accomplishes its purpose of promoting the "just and efficient conduct" of complex actions.(fn4)
This article is intended to provide an overview for Colorado attorneys of the relevant statutory provisions, the multidistrict rules, and the case law which has developed in the thirteen years since the Multidistrict Panel was created by Congress.
Some familiarity with multidistrict practice may be helpful in the interpretation of newly adopted Rule 42.1 of the Colorado Rules of Civil Procedure.(fn5) The new rule, effective July 1, 1981, provides for consolidated multidistrict litigation within the state. While it is too early to report any experience under the new rule, the rule itself was patterned after the federal law providing for consolidated multidistrict litigation. While there are significant differences between the state and federal practice,(fn6) an understanding of procedure at the federal level may be helpful in addressing questions as they arise under the new state rule.
The fundamental provision of the multidistrict litigation statute (28 U.S.C. § 1407) is a simple one: "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."(fn7) The statute further provides for the Multidistrict Panel, which is empowered to determine whether such transfers will be for the convenience of parties and witnesses and will promote the just and efficient conduct of actions.(fn8) Multidistrict litigation, therefore, is litigation in a single district of claims brought in multiple districts.
There is no limit to the subject matter of cases which may be consolidated or coordinated pursuant to § 1407. However, historically and logically, the cases have been those which involve a number of individual plaintiffs throughout the United States and one or more relatively
large defendants which do business nationally. Therefore, the cases generally involve antitrust or securities claims, with air crashes and other disasters following closely. However, the Multidistrict Panel has also consolidated cases in the areas of civil rights,(fn9) highway construction,(fn10) bankruptcy,(fn11) products liability,(fn12) and general contract claims.(fn13)
Important to note at the outset is that "multidistricting" is limited to cases involving common questions of fact, not multiple cases involving a similar legal question. Moreover, it is limited to centralizing of pretrial proceedings. Thus, the statute does not require or even directly address the question of consolidated trial of cases filed in multiple districts. That issue is left for determination pursuant to the general venue provisions of the U.S. Code.(fn14)
The Multidistrict Panel, which sits in Washington, D.C., consists of seven circuit and district judges designated by the Chief Justice of the U.S. Supreme Court.(fn15) It generally meets once a month. Its primary function is to preside over the transfer of actions which have been filed in multiple districts. The Panel is also required, at the conclusion of pretrial proceedings in the transferee district, to remand each action transferred from any other district back to the transferor court unless the action is terminated before the conclusion of pretrial proceedings.(fn16) The Panel has no authority to decide any substantive question affecting litigation which comes before it, but instead deals exclusively with questions affecting transfer and remand.
While it is limited to questions of transfer for purposes of pretrial only, the Panel has extremely broad latitude in the transfer of actions. It may transfer cases in which a transferor court is considering pending motions,(fn17) cases in which a transferor court has already denied a venue change to another district(fn18) or cases in which the transferor court lacks jurisdiction over certain of the defendants.(fn19) The Panel is not bound by venue considerations. In other words, it may transfer cases to districts where venue is inappropriate as to a number of parties.(fn20) The Panel may even transfer the same case to two different forums for the convenience of parties and efficient management of the litigation, even if that means one defendant must appear in two actions where he was previously required to appear in only one.(fn21)
When the Multidistrict Panel becomes aware that a multiplicity of similar cases has been filed throughout the federal court system, it may upon its own initiative start proceedings for transfer.(fn22) More commonly, a motion is filed with the Panel by an affected party, after notice to the transferor court, requesting a hearing before the Panel on transfer. In either event, the Panel gives notice to all parties in all actions in which transfers are contemplated and sets a time for hearing of the question.
Evidence may be offered by any party which would be affected by the transfer and the Panel's order of transfer must be supported by findings of fact and conclusions of law. An order of the Panel denying a motion to transfer cannot be appealed. However, the Panel's decision ordering transfer of an action may be reviewed by extraordinary writ in the circuit where the transferee court sits.(fn23)
The rules of procedure of the Multidistrict Panel are relatively few and straightforward.(fn24) Rather than an analysis of each provision, what follows is a summary of the most important provisions affecting practice before the Multidistrict Panel.
Appearance before the Panel is governed by Rule 3. The rule first provides for an automatic right for any licensed attorney in the United States to practice before the Panel. Furthermore, once a case has been transferred by the Panel, Rule 3 provides an automatic right for counsel of record to appear in the transferee court. This is an important provision since it allows parties to avoid the cost of local counsel. The necessity of paying counsel's expenses for travel to the transferee district is burden enough upon a party which becomes involved in multidistrict litigation.
Requests for transfer and all other papers must be filed with the clerk of the Panel.(fn25) Copies of motions for transfer and motions for remand must also be filed in the court in which the action is pending. In addition, service must be made on all parties in all actions involved in the litigation, and must also be served upon affected courts. Within ten days, each affected party must file an attorney designation with the Panel. From these designations, the Panel creates a service list which will be used for any subsequent papers filed with the Panel.(fn26)
Characteristic of the rules of practice before the Panel is the clear intent that matters be moved along quickly. All requests must be made by written motion, accompanied by a brief and a schedule of each action involved in the matter. Responses must be filed in fifteen days. Failure to respond is the equivalent of acquiescence in the motion of the other party. A reply brief is allowed, but must be filed...
To continue reading
Request your trial