Chapter § 4.03 Prevalence of Multidistrict Litigation

• Jurisdiction: United States
• Publication year: 2020

§ 4.03 Prevalence of Multidistrict Litigation

[1] Requests for Transfer

Since 1973, parties have filed over 2,500 motions to transfer actions under section 1407.²⁴ The number of motions peaked in 2009 with 121, but the quantity has faded considerably most years since then—parties filed only 56 motions in 2018. The number of motions filed yearly has not been at its current level since the early 2000s.²⁵ Even though the number of requests for section 1407 consolidation has started to decline, the number of actions the Panel centralized has increased the past two years. For instance, the number of motions filed in 2015 and 2016 was, respectively, 82 and 73; the number of civil actions the Panel centralized in those years was 427 and 375, respectively. In contrast, parties, respectively, filed 59 and 56 transfer motions in 2017 and 2018, and the Panel consolidated 615 and 710 actions in those years.²⁶ The individual dockets in the MDLs generally don’t comprise a huge number of cases. Of the active 248 MDL dockets as of September 2018, fewer than 60 have more than 100 pending actions and only a little more than 20 have 1,000 pending actions.²⁷

[2] Parties Are Finding It Tougher to Win Motions to Transfer Under Section 1407

While the rate at which the MDL Panel granted requests for section 1407 transfers was quite high at one point, that is no longer so. In the 1970s, the grant rate on new dockets (as distinct from tag-along cases) was low, approximately 50%, though in some years the rate was much higher (85% in 1972).²⁸ But during the early 2000s, 67% to 87% of the transfer requests in new dockets were granted.²⁹ The tide has now shifted. For instance, looking at the five years between the beginning of 2014 and the end of 2018, plaintiffs filed 359 new motions to transfer and the Panel granted only 154—about 43%.³⁰ The type of cases centralized in MDLs has remained consistent. The Panel centralized 30 new MDLs in the 12-month period ending in September 1018. Twenty-one of the cases were evenly split among antitrust, products liability, and “miscellaneous” MDLs (including three data security breach dockets and a national prescription opiate docket). Sales practices and intellectual property MDLs totaled another seven. And the two remaining MDLs involved a contract dispute and a common disaster arising from the release of acidic, mine-impacted water.³¹

[3] The Majority of Actions Filed in Transferee Courts Are Terminated in Transferee Courts

The MDL Panel’s...