Chapter § 4.10 The Mechanics of MDLs
| Jurisdiction | United States |
| Publication year | 2020 |
§ 4.10 The Mechanics of MDLs
This section describes how parties commence an MDL, how cases become part of an MDL, and generally how parties and the transferee court manage the MDLs from start to finish. As one commentator put it, “the key virtue of the MDL is that i[t] collects most parties in a single organized proceeding in order to facilitate a global settlement.”141
[1] How MDLs Are Commenced
The MDL panel may initiate a proceeding to transfer under section 1407,142 but that is rare. Most often a party in an action subject to transfer initiates the proceeding by filing a motion with the Panel.143 The Panel will then notify all interested parties and set a briefing schedule and oral argument on the motion (as necessary).144 As we discussed in detail in section 4.04, the Panel will grant a section 1407 motion when civil cases pending in different districts involve “one or more common questions of fact,” and the Panel determines that centralization “will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.”145 Once the Panel grants a motion to create an MDL, it assigns a federal district judge to preside over the consolidated proceeding.146 The Panel’s choice of the district court and judge is not “guided by any particular set of factors; they are not cabined by statute or by the Multidistrict Rules of Procedure.”147 In fact, the transferee judge and court “need not already have one of the consolidated cases on their docket, though parties may lobby the Panel for a specific court or judge on that basis.”148 The Panel sometimes chooses judges for their experience with similar cases. Also, the “condition of a potential transferee court’s docket appears relevant, as do the distribution of MDLs throughout the country, the location of relevant evidence, and the ‘willingness and motivation’ of the potential transferee judge.”149
The MDL doesn’t end with the initial transferred cases. As discussed in section 4.02, a “tag-along” case refers to an “action pending in a district court” that “involves common questions of fact with either (1) actions on a pending motion to transfer to create an MDL or (2) actions previously transferred to an existing MDL.”150 A party (or counsel) in an MDL must “notify the Clerk of the Panel of any potential tag-along actions.”151 Once the Panel is notified of the potential tag-along action, it will review the complaint and docket to confirm that the case is appropriate for the MDL and, if so, issue a conditional transfer order (“CTO”).152 A party can oppose the CTO by filing an opposition and motion to vacate.153 Failure to respond to the CTO is treated by the Panel as the party’s acquiescence.154 Alternatively, plaintiffs can bypass the transfer process and file their case directly into the MDL court if the defendant waives objections to personal jurisdiction or venue. This is known as “direct filing.”155
[2] MDL Management
Deciding on the appropriate leadership structure and selecting the right lawyers to fill the positions is undeniably “one of the first and most important case-management tasks” for transferee judges.156 MDLs can have thousands of parties and counsel,157 and transferee courts don’t have the bandwidth to deal with them all. Therefore, these courts appoint a limited number of lawyers to serve on the plaintiff’s “leadership team.” To be sure, given that the “purpose of consolidation is to permit a trial convenience and economy in administration, . . . a failure to designate lead counsel would be inefficient and counter to the very idea of MDLs”; thus, “the litigation is run in many ways by a relatively small number of counsel appointed to the case-management committees established by the court.”158
Attorneys appointed to the leadership team act for their clients as well as other counsel and parties.159 “MDL judges have total discretion to designate various leaders or committees among the involved attorneys—they are not required to use any particular titles or assign any particular duties.”160 Furthermore, these judges generally have complete control over what lawyers to assign to roles in the MDL.161
Transferee judges should assess the needs of the litigation to establish the appropriate leadership structure, considering such factors as the nature of the claim, the number of cases, and the variety and complexity of interests involved. Leadership teams typically include lead counsel, liaison counsel, trial counsel, and counsel committees.162 “Lead counsel” formulate, and present, “positions on substantive and procedural issues.”163 For example, they present arguments—written and oral—to the MDL court, manage and ensure compliance with the schedule, conduct depositions, and work with opposing counsel on other discovery.164 “Liaison counsel” is basically an administrative role. They may distribute an up-to-date, comprehensive service list of all plaintiffs’ attorneys, serve as the point of contact between the court and the plaintiffs’ leadership, and ensure that all orders entered by the court and all papers filed by the defendants are timely distributed to all plaintiffs’ attorneys.165 “Trial counsel,” as the name implies, are the main attorneys at trial, and they coordinate other members of the trial team.166
There are many possible counsel committees (and subcommittees). For instance, in complex cases, it’s common to have an executive and steering committee. The executive committee is usually chaired by the plaintiffs’ lead counsel and is responsible for overseeing the activities of the plaintiffs’ counsel in the MDL.167 The steering committee is often composed of a broader set of attorneys who coordinate the day-to-day aspects of the litigation, including conducting discovery.168 The subcommittees may include electronically stored information (manages the receipt, production, organization, and review of ESI), early vetting (oversees the process of collecting and producing certain basic information about each plaintiff’s claims), and law and briefing (prepares the plaintiffs’ pleadings, motions, and responsive briefs).169 Additionally, the transferee judge may appoint a defense leadership team in cases involving numerous defendants and may create joint committees for all parties, such as a joint settlement committee.170
All in all, the leadership team assumes control of the litigation by initiating and conducting discovery. They also “act as spokespersons for all plaintiffs, call counsel meetings, examine and depose witnesses, coordinate trial teams, select cases for bellwether trials, submit and argue motions, and negotiate proposed settlements.”171 Even though plaintiffs retain individual counsel, attorneys with whom they have no relationship may make important decisions in their cases. Because of this, in MDLs, “non-class mass litigation often resembles class actions in the sense that numerous plaintiffs depend on counsel with whom they have no meaningful individual relationship and whose loyalty is directed primarily to collective interests.”172
In many instances, attorneys can apply to take a role on the plaintiffs’ leadership team.173 No matter how the transferee judge selects the attorneys for the team, there is often “intense competition for appointment by the court as designated counsel.”174 While participating on the leadership team “entails an enormous amount of work,” as discussed below, “it can also come with a huge payoff—certainly larger than the contingency fee expected from representing one or even several individual plaintiffs—because attorneys who do work for the common benefit of the group typically receive a portion of every single plaintiff’s payout.”175 For example, in In re Zyprexa Products Liability Litigation, the district court “instituted several attorney compensation protocols,” including “a cap on attorneys’ fees and the creation of a common benefit fund—generated by a three percent set-aside from funds from all settlements and judgments—to compensate members of the [steering committee] for their work on behalf of all of the MDL plaintiffs.”176 Serving on the leadership team can also benefit lawyers professionally, because doing so in one MDL is a credential that makes the next transferee judge more likely to appoint a lawyer to the team in a later MDL.177
[3] Bellwether Trials
Almost every new MDL uses a “bellwether” regime; securing consents for these trials (i.e., Lexecon waivers) is now a critical part of transferee courts’ case management agendas.178 The term bellwether comes from the ancient practice of belling a wether (a male sheep) selected to lead his flock. The ultimate success of the wether selected to wear the bell rested on whether the flock had confidence that the wether would not lead them astray.179 In the MDL context, bellwether cases “are representatives selected from the ‘flock’ of cases consolidated in front of the transferee court and tried front-to-back.”180 Bellwether trials are mostly “information-gathering tools.”181 Their results bind only the parties that participate but not the other parties in the MDL. However, a transferee court’s findings can foreclose parties involved in the trials from subsequently relitigating issues under the collateral estoppel doctrine.182 The plaintiffs’ lawyers appointed to the leadership team usually try the bellwether trials, not the attorneys of record in particular cases.183
There are many reasons to employ this process. Discovery for bellwether trials provides useful information that may be applicable to other cases. For instance, discovery may reveal “factual information and information on the strengths and weaknesses of expert witnesses and their testimony, the credibility of fact witnesses, the admissibility of particular evidence, and other valuable information.”184 Likewise, “[b]ellwether trials enable the parties to test different theories of liability and defenses, observe the witnesses, and try out different...
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