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 ADMIN. 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). 2014] CENTRIPETAL FORCES 427 Using a variety of data sources, this Article systematically examines the universe of MDL cases—centralized and noncentralized—with a special emphasis on these two groups of disaggregated cases. Part I provides a brief overview of the MDL process. Part II then provides a systematic analysis of the centralization of MDL cases, with a special focus in Part III on cases that are non-centralized. Somewhat surprisingly, many non-centralized cases do eventually end up transferred to another district, either to another MDL proceeding or to another federal venue under 28 U.S.C. § 1404(a). Part IV provides an analysis of the termination of centralized MDL cases—most of which terminate in the transferee court—and Part V documents what happens to section 1407 remand cases when they return to the transferor court. We find that few section 1407 remand cases are actually tried post-remand; most settle. I. THE MDL PROCESS In this Article, the term “MDL cases” is used to describe all cases that come before the Judicial Panel on Multidistrict Litigation (the Panel), regardless of whether they are ever transferred and made part of an MDL proceeding. MDL cases are handled by the Panel under the authority granted by the Multidistrict Litigation Act of 1968. 6 The Panel may centralize “civil actions involving one or more common questions of fact” before a single district judge “for coordinated or consolidated pretrial proceedings” when doing so will promote “the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.” 7 The first cases that become MDL cases are those subject to a motion to transfer, 8 in which a party requests that a group of cases be centralized before a single district judge, called the transferee judge. If the Panel grants the motion, it issues a Transfer Order. Centralized MDL cases—including non-transferred cases already in the transferee district—become part of an MDL proceeding in the transferee court. If the Panel denies centralization by issuing an Order Denying Transfer, the cases remain in the district courts in 6. See 28 U.S.C. § 1407 (2012). 7. Id. § 1407(a). 8. In the early days of the Panel, show-cause orders played a major role, but they are no longer very common. See Rules of Procedure of the Judicial Panel on Multidistrict Litigation, Rule 8.1, 277 F.R.D. 480 (2011) [hereinafter Panel Rules]. 428 LOUISIANA LAW REVIEW [Vol. 75 which they were initially filed or removed to. Non-centralized cases are discussed in detail below. 9 The centralization decision does not end the Panel’s work. Cases continue to come before the Panel as potential tag-alongs . Tag-along cases involve common questions of fact with already centralized cases or cases subject to a pending centralization motion. 10 Potential tag-alongs in other districts are usually brought to the Panel’s attention by attorneys in centralized proceedings or by parties in the potential tag-alongs. If the common questions of fact are apparent, the Panel’s clerk issues a Conditional Transfer Order (CTO). The CTO becomes final, and the cases are transferred, after seven days if no party objects. 11 When tag-along status is disputed, the Panel will issue an order granting or denying transfer. Some tag-along cases are already before the Panel while it is considering centralization. Between the filing of the motion and the Panel’s centralization decision, a number of potential tag-along cases may already have been added to the docket. The Panel is aware of the cases and may refer to them in its centralization decision—the number of potential tag-alongs can inform the Panel’s decision for or against centralization. 12 But these early potential tag-alongs are not typically governed by the order granting or denying centralization. If centralization is granted, these cases will typically be included in the first CTO. The Panel plays no role in adjudicating the merits of MDL cases, regardless of whether the cases are centralized. 13 The 9. See infra at notes 29–75 and accompanying text. 10. It should be noted that...