From the horse's mouth: the workings of the judicial panel on multidistrict litigation .

• Author: Nangle, John F.

Cases involving common questions of fact are assigned to one district court for pretrial proceedings, but under Lexecon they can't be tried there

TODAY'S Judicial Panel on Multidistrict Litigation consists of seven district judges designated by the Chief Justice of the United States. The present panel members, no two of whom are permitted by the enabling statute, 28 U.S.C. [sections] 1407, to be from the same circuit, are William B. Enright, Southern District of California; Clarence A. Brimmer, District of Wyoming; John F. Grady, Northern District of Illinois; Barefoot Sanders, Northern District of Texas; Louis C. Bechtle, Eastern District of Pennsylvania; and John F. Keenan, Southern District of New York. I have the honor to serve as chairman of the panel.

During the statistical reporting year ending September 30, 1998, the panel took action in 124 of the 1,256 multidistrict dockets that had been created under Section 1407 since the panel's inception in 1968. A total of 651 panel orders were filed.

STATUTORY DUTIES

The panel is charged with a number of statutory duties. First, under Section 1407, it has the responsibility of (1) identifying civil actions pending in different federal courts involving one or more common questions of fact, (2) determining, after briefing and hearings, whether any of those actions should be transferred to a single district for coordinated or consolidated pretrial proceedings, and (3) selecting, with the consent of the transferee district court, the judge or judges before whom the centralized pretrial proceedings should be conducted.

During the 1998 reporting year, the panel ordered centralization of 16,940 actions, consisting of 15,735 transferred actions and 859 actions originally filed in transferee districts. These centralized actions embrace both actions in new dockets and "tag-along" actions that were filed outside the transferee district and added to previously established dockets by subsequent Section 1407 transfer. A tag-along action, as defined in Rule 1.1 of the panel's Rules of Procedure, is a "civil action pending in a district court and involving common questions of fact with actions previously transferred under Section 1407."

Tag-along actions that are originally filed in the transferee district are included in Section 1407 proceedings at the transferee court level and do not require action by the panel. The panel denied Section 1407 centralization in 283 actions during the 1998 reporting year, including both actions in new dockets and potential tag-along actions in previously established dockets.

28 U.S.C. [sections] 2112(a) assigns one more task to the panel--that of designating the court of appeals to hear appeals of federal agency rulings in certain instances in which petitions for review have been filed in more than one circuit. During 1998, the panel designated the appropriate circuit court for appeals of certain orders entered by the Environmental Protection Agency, the Federal Communications Commission, and the National Labor Relations Board.

CLASSIFICATION OF DOCKETS

The panel classifies its dockets into several general areas:

* air and common disasters

* antitrust

* contract

* employment practices

* patent and trademark

* products liability

* securities law

* miscellaneous

A brief review of the activity during calendar year 1998 in some of the panel's more prominent litigations will serve to illustrate the range and complexity of the actions that come before it. The panel considered motions for transfer in new dockets involving (1) the August 1997 air crash near Agana, Guam; (2) antitrust conspiracies in the markets for oil, toys, compact discs, and various industrial products; (3) patent claims in the pharmaceutical and semiconductor industries and in the "Barney" children's character trademark; (4) tobacco products liability claims; (5) claims pertaining to the securities of Aetna Inc., Cityscape Financial Corp., Oxford Health Plans Inc., and Fine Host Corp.; and (6) miscellaneous claims relating to various life insurance companies' marketing practices, the Ford/Citibank cardholder rebate program, sweepstakes sponsored by American Family Publishers, and bankruptcy reaffirmation agreements. The panel also ordered transfer of tag-along actions in such major ongoing dockets as the asbestos and breast implant products liability litigations.

HOW TRANSFERS OCCUR

Under Section 1407, transfer proceedings can be initiated by motion of a party or by the panel acting sua sponte. As a practical matter, most new dockets arise by motion rather than a panel order to...