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

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).