Centripetal Forces: Multidistrict Litigation and Its Parts

Author:Catherine R. Borden - Emery G. Lee III - Margaret S. Williams
Position:The authors are researchers at the Federal Judicial Center. Affiliation is provided for identification only. The views expressed in this Article are those of the authors and not those of the Federal Judicial Center or any other judicialbranch entity. This work has benefited from the comments of our FJC colleagues, including Joe Cecil and Dan ...
Pages:425-454
 
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Centripetal Forces: Multidistrict Litigation and Its
Parts
Catherine R. Borden, Emery G. Lee III, and Margaret S. Williams
*
INTRODUCTION
Almost by definition, multidistrict litigation is complex. One
consequence of this complexity is that multidistrict litigation may
be viewed from a variety of perspectives. First, multidistrict
litigation may be viewed from the perspective of its share of
overall civil litigation in the federal courts. Commentators
sometimes stress that a relatively large percentage of all civil
litigation takes place within multidistrict aggregations,
1
a point that
is also sometimes made in official court reports.
2
Multidistrict
litigation may also be viewed at the level of centralized
proceedings and thus understood at the level of what one might term
“individual aggregations.” Such a perspective lends itself to a
discussion of global settlements and the practical and ethical issues
involved in negotiating and reviewing such.
3
Relatedly, multidistrict
Copyright 2014, by CATHERINE R. BORDEN, EMERY G. LEE III, AND
MARGARET S. WILLIAMS.
* The authors are researchers at the Federal Judicial Center. Affiliation is
provided for identification only. The views expressed in this Article are those of
the authors and not those of the Federal Judicial Center or any other judicial-
branch entity. This work has benefited from the comments of our FJC
colleagues, including Joe Cecil and Dan Holt, as well as the comments of
participants in the Symposium, especially Francis McGovern.
1. See, e.g., John G. Heyburn II & Francis E. McGovern, Evaluating and
Improving the MDL Process, 38 LITIGATION 26, 26 (2012) (estimating that
MDL cases account for more than 15% of all civil litigation in the federal
courts); Eldon E. Fallon, Common Benefit Fees in Multidistrict Litigation, 74
LA. L. REV. 371, 373 (2014) (same).
2. Fluctuations in the number of new MDL cases are often evident in the
courts’ overall statistics. In 2012, for example, the courts reported that civil
filings based on diversity of citizenship declined by 15%, “primarily because of
a 60 percent decline in filings of multidistrict litigation (MDL) cases related to
asbestos (down by 22,561 cases).” See A
DMIN. OFFICE OF THE U.S. COURTS,
JUDICIAL BUSINESS 2012, “U.S. DISTRICT COURTS,” available at
http://www.uscourts.gov/Statistics/JudicialBusiness/2012/us-district-courts.aspx,
archived at http://perma .cc/7CCM-TYBB (last visited Sept. 17, 2012).
3. See, e.g., Elizabeth Chamblee [Burch], Unsettling Efficiency: When
Non-Class Aggregation of Mass Torts Creates Second-Class Settlements, 65 LA.
L. REV. 157, 195–96 (2004) [hereinafter Burch, Unsettling Efficiency] (“[T]he
practical consequence of transfer translates into a non-opt out class action for
pretrial purposes and produces settlement as would class certification. . . .
Consequently, efficiency through procedural devices, without the balance of
fairness, does not necessarily correlate into just outcomes.”).
426 LOUISIANA LAW REVIEW [Vol. 75
litigation may be viewed from the perspective of the “repeat
player” attorneys who often play a decisive role in the shape and
ultimate outcome of proceedings.
4
A less common frame, perhaps, is that of the constituent civil
actions which together comprise the proceedings proposed for
centralization. From the perspective of a centralized proceeding or
of a repeat player with a large inventory of claims, these
constituent civil actions—referred to as “MDL cases”—may seem
relatively unimportant. Unless an MDL case is selected as a
potential bellwether trial case,
5
for example, little individualized
discovery or activity may actually take place. And yet, the sheer
volume of MDL cases suggests that scholars and policymakers
should not focus exclusively on the other levels of analysis. There
is certainly room for increasing our understanding of these
essential parts of MDL proceedings.
Scholars and policymakers have a reasonably adequate
understanding of what happens to cases resolved by a transferee
court in a centralized MDL proceeding. But there are two
categories of MDL cases that are not resolved in an MDL
transferee court: cases that are part of a motion to transfer before
the Judicial Panel on Multidistrict Litigation that is not granted,
and the section 1407 remand cases, which are centralized but then
remanded to the transferor court at the conclusion of common
pretrial matters in the aggregate proceeding. In the terms used by
the organizers of this Symposium, these cases are decidedly
disaggregated. With respect to the first category, the MDL cases
are aggregated in a motion and, possibly, in the Panel’s
deliberations but then not formally aggregated. With respect to the
second category, the MDL cases are formally aggregated in the
centralized proceeding but then broken back into separate civil
actions. It is safe to say that much less is known, in general, about
these two groups of cases at the margins of the MDL process.
4. See generally Elizabeth Chamblee Burch, Procedural Justice in
Nonclass Aggregation, 44 WAKE FOREST L. REV. 1 (2009) (discussing role and
incentives of repeat players); Margaret S. Williams et al., Repeat Players in
Federal Multidistrict Litigation, 5 J. TORT L. 141 (2012) (using social network
analysis to identify and map the network of repeat plaintiff attorneys in MDL
proceedings); Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90
N.Y.U. L. REV. (forthcoming 2015) (mapping repeat players’ appointments to
leadership positions in centralized proceedings).
5. A bellwether trial (sometimes called a “test” trial) is a trial of a
representative case in an MDL proceeding intended “to provide meaningful
information and experience to everyone involved in the litigation.” Eldon E.
Fallon et al., Bellwether Trials in Multidistrict Litigation, 82 TUL. L. REV. 2323,
2332 (2008).

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