Chapter § 4.02 MDL Overview

• Jurisdiction: United States
• Publication year: 2020

§ 4.02 MDL Overview

Although this chapter focuses on the federal MDL rules, a number of states have enacted some version of statewide MDL procedures.¹³ The following discussion of Illinois’s multidistrict litigation practice serves as an example of state rules and procedures.

[1] State MDL Practice

Illinois Supreme Court Rule 384 became effective on November 1, 1990. Under this rule, the Illinois Supreme Court may “on its own motion or on the motion of any party,” transfer to one court for “consolidated pretrial, trial, or post-trial proceedings” any actions pending in trial courts in different judicial circuits that involve “one or more common questions of fact or law.”¹⁴ The Illinois Supreme Court may use its transfer power if “consolidation would serve the convenience of the parties and witnesses and would promote the just and efficient conduct of such actions.”¹⁵ Rule 384’s committee comment acknowledges that, while the Illinois rule was modeled after section 1407, there are distinct differences from the federal statute.¹⁶ For example, unlike section 1407, Rule 384 allows for consolidation where actions raise common questions of law (as well as common questions of facts). Also, Rule 384 “provides for the transfer of the related cases, where appropriate, for trial or post-trial proceedings and not just for transfers for pretrial proceedings.”¹⁷ “Another major departure from the federal procedures set forth in section 1407 is that transfers in Illinois will be made by the supreme court and not a judicial panel.”¹⁸

[2] Federal MDL Practice

On the federal side, the inquiry about whether to bring together multiple cases before a single judge for pretrial purposes under section 1407 commences either on the motion of a single litigant or, less often, by sua sponte order of the MDL Panel.¹⁹ After initiation, the parties must file briefs directly addressing whether transfer is proper under the statute. If consolidation is contested, the MDL Panel will schedule an oral hearing, if requested, on its bimonthly hearing calendar. Hearings usually last between two and two-and-a-half hours. A typical load of 15 to 20 motion hearings on the calendar provides each lawyer a very brief time for oral argument.²⁰

An MDL docket is created when the MDL Panel grants a section 1407 transfer, by issuing a “transfer order” and identifying the transferee court. All litigants in cases pending in districts outside of the transferee court will receive notice that the cases are being...