Class Actions & Derivative Suits
Class Actions 101: MDL for Beginners
By Greg Cook and Jocelyn D. Larkin

This could happen to you. You are contentedly prosecuting or defending a class action in your local federal court when you receive a motion to transfer your case and consolidate it with a host of other class actions. Like it or not, you are about to enter the alternate universe known as Multi-District Litigation (MDL). Below, we attempt to answer some of the basic questions that you may have about MDL.

Who decides whether my case will be consolidated into an MDL?
The Judicial Panel on Multi-District Litigation. The MDL Panel is comprised of seven federal district court judges appointed by the chief justice. They decide whether to consolidate your case with other similar cases and, if so, to which court and judge to transfer the cases.

How do I find out who the seven judges are?
You can check the official MDL website, which also has lots of other useful information about the MDL process, at www.jpml.uscourts.gov.

Where does the MDL Panel sit?
The official office of the MDL Panel is in Washington, D.C., but the MDL Panel holds hearings around the country.

What’s the point of MDL?
Congress created the MDL Panel in 1968 to relieve federal court backlog. 28 U.S.C. 1407. The purpose was to streamline pretrial proceedings and avoid the duplication of discovery by joining similar cases into one action.

So somebody who has nothing to do with my case can move to transfer my case into an MDL?
Yes, and the MDL Panel can also do so on its own initiative.

Do I have any say in whether my case is moved into an MDL?
Yes, but you have to act quickly. You have 20 days to file a brief—limited to 20 pages—in response to a motion to transfer. The matter will then be set on the MDL hearing docket. If the MDL Panel has already established an MDL for a particular set of cases, your case can be transferred by means of a “tag-along” notice with no hearing, unless you object within 15 days.

What factors does the MDL Panel consider?
The MDL Panel considers three factors: whether there are one or more common questions of fact; whether the transfer is for the convenience of all of the parties involved; and whether the transfer will promote judicial efficiency, economy, and fairness.

How does the MDL Panel decide where to transfer the cases?
While the MDL Panel has the authority to transfer the case to any district, it often selects a district with a currently pending case. The MDL Panel will usually select the most convenient forum for most of the parties and witnesses involved.

What about all those pesky forum rules, like personal jurisdiction, venue, and forum-selection issues?
Normal considerations relating to choice of forum do not limit the MDL Panel in selecting the court to which to transfer the matters. As should be apparent, the MDL process can quickly and drastically change the posture of an existing case.

Which circuit’s law applies once my case gets transferred?
That’s a hard one. The case law is not consistent on that point.

Is there an upside to this for my client? Should I file an MDL motion?
Possibly. If your client is litigating essentially the same case in many different courts, an MDL can streamline discovery and ensure greater consistency in pretrial rulings. The transferee court may be more favorably disposed to your arguments than was the home district.

Will my class action ever come home again?
The statute states that a transferred action “shall be remanded” at the end of pretrial proceedings to the district from which it came. In practice, few cases are remanded for trial to the original forum. The MDL Panel has some interesting statistics about the remand rate on its website.

What if I want to learn more about MDL?
You’re in luck. You can attend the 14th Annual National Class Action Institute on October 14, 2010, in Chicago. Judge John G. Heyburn II, chairman of the MDL Panel, will be speaking, along with a panel of MDL practitioners and experts. While you’re there, you can take in the latest on arbitration (I know it’s confusing!), consumer fraud, and class-action ethics.

Keywords: litigation, commercial and business, MDL, Multi-District Litigation, National Class Action Institute

Greg Cook and Jocelyn D. Larkin are chairs of the Class Action & Derivative Suits Committee.

Proportionality in E-Discovery: Wishful Thinking?
EPA Proposes Regulation of Greenhouse Gases under Clean Air Act