We’ve all seen ’em; it’s time to talk about ’em: silly MDL tricks.
It starts with a few plaintiffs filing a motion with the MDL Panel to centralize a set of product liability cases. Then the loonies spring into action.
A subset of plaintiffs’ counsel believe that the MDL Panel is more likely to centralize cases in the jurisdiction where the “most plaintiffs” have complaints pending. These clowns thus file bigger and bigger class actions, so they can lay claim to the most expansive complaint in the country. They tell the Panel that “everyone in the state of Illinois is part of a putative class action pending in the Northern District of Illiois,” so the cases should be transferred to a federal court in Chicago. Or “the only national class action is pending in the S.D.N.Y.,” or “we have a global class pending in the C.D. Cal.” We haven’t yet seen it happen, but why not an intergalactic class? Surely the Panel would ship the cases to the only jurisdiction with a lawsuit pending on behalf of the citizens of Mars.
What’s the logic behind this? We suppose it comforts plaintiffs’ counsel to be able to say that they have the most expansive class pending in their preferred transferee district. But, particularly in product liability cases, the likelihood of a class actually being certified decreases as choice of law issues multiply. Why should the Panel be influenced by the pendency of an uncertifiable putative class action? (Frankly, in our experience, the Panel does not appear to be influenced by this silliness, so the real question is why certain plaintiffs’ counsel continue to play this game.)
Another silly MDL trick is for plaintiffs to name an unnecessary “alphabet defendant” — a trade association that can be named on a conspiracy claim, or some other tangential defendant that can be joined in every product case — to create a common question of fact. “There must be a common question of fact,” plaintiffs argue, “because the AAQQ is named as a defendant in every case, and discovery about the AAQQ will be common to all cases.”
This trick is not quite as transparently silly at the ever-expanding class dodge, but the Panel should nonethelss be wary of it. Cases that share no fundamental factual questions in common should not lightly be centralized simply because clever plaintiffs’ counsel choose to name a trade association as a common defendant in all of the cases. The trade association is unlikely to lie at the heart of any individual case, and the ruse of naming a trade association can be used too easily to try to create commonality among cases that in fact vary widely.
There’s another MDL trick that’s less silly. The Panel does, in fact, try to identify a jurisdiction in which the cases are “most advanced” when the Panel selects a transferee district to oversee the centralized cases. Plaintiffs’ counsel therefore often press to have the case in their preferred transferee district become the “most advanced.” This may mean only propounding voluminous discovery, which is burdensome, but poses no threat to judicial administration. On the other hand, seeking to “advance” a case can also mean pressing aggressively for discovery leading up to a preliminary injunction hearing. Surely, counsel reason, a court that has already held a preliminary injunction hearing is most knowledgeable about the cases and deserves to be the transferee judge.
We can’t really fault the plaintiffs’ bar for playing this game; the Panel thinks about which cases are “most advanced,” so these lawyers are only looking our for their own interest by trying to accelerate their case. (We almost typed “their clients'” interest there, but in the MDL jockeying contest, clients have nothing to do with the game.)
Our problem here is with the other players in the system. Why do potential transferee judges fall for this trick? Permitting multiple sets of plaintiffs’ counsel to race for competing preliminary injunctions imposes a terribly unfair discovery burden on the defendant. Generating massive duplicative discovery records plainly undercuts the goal of coordinating discovery (and minimizing costs) for which the MDL Panel was created. And it is simply not true that “the discovery we do in my court will be useful in any later MDL proceeding.” The plaintiffs’ lawyers who didn’t participate in one court’s accelerated discovery will insist on re-doing that discovery later, when they can participate and after additional documents have been produced. The early, accelerated discovery will almost surely be repeated after the cases are centralized.
Happily, most district court judges see through the smoke and mirrors and do their best to avoid permitting massive discovery in individual transferor courts that will later be re-done in a coordinated proceeding. Perhaps, because we’re exposing the silly MDL tricks here, even fewer judges will be fooled by them in the future.