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The multidistrict litigation statute is 28 U.S.C. Sec. 1407. (Surely there’s a way to make that little “section” sign on a computer, but it escapes us, so we’re typing “Sec.” That’s us — Beck and Herrmann, the blogging Luddites.)
Anyway, Section 1407 authorizes the MDL Panel to transfer federal cases “to any district for coordinated or consolidated pretrial proceedings.”
Here’s today’s question: What the heck is the difference between “coordinated” and “consolidated” proceedings?
The statute uses both words, so presumably they’re not redundant.
So far, so good.
Okay. So what happens at the instant that the MDL Panel rules? Are the cases before the Panel immediately “coordinated” or “consolidated”? The Panel’s most recent order in a product liability case — the pet food litigation — says that the facts merit “centralizing” the cases, which are therefore transferred for “coordinated or consolidated” pretrial proceedings. Not much help there.
Perhaps the choice between coordination and consolidation lies with the transferee court. But, at least in our practices, we don’t see that happen very often. MDL transferee courts don’t typically (perhaps we should say “ever”) enter orders that either coordinate or consolidate new cases as they arrive.
Why do we care? (Please stop shouting, “Because you’re nuts.”)
We care for two reasons. First, one of us wrote a book called Statewide Coordinated Proceedings: State Court Analogues to the Federal MDL Process. We thought the words “coordinated” and “consolidated” had different meanings, and we chose for the title of the book what we thought was the more generic of the two terms.
More importantly, judges think the words have different meanings. In the Enron Securities Litigation, Judge Harmon has entered orders saying that some cases are consolidated and others are merely coordinated. (It’s a Tuesday morning, and we have client work to do, so we can’t search the web to find links for you. Sorry about that — but those orders do exist; trust us.) Judge Harmon obviously thinks that the distinction between the two words matters.
And we’re told (although we haven’t seen a written order, if it exists) that Judge Cote “consolidated” the claims of the Worldcom opt-outs with the rest of the claims of class members. She later held that counsel for the opt-outs had fewer rights to speak in court because the claims had been consolidated — lead counsel for the class had primary authority to speak for the consolidated claims.
That tells us two things: First, the distinction between coordination and consolidation can have serious real-world consequences. (So it’s worth fretting about, after all.) And, second, Judge Cote’s rumored ruling implicitly means that the MDL Panel’s order merely coordinates cases, and the transferee judge can later consolidate them, if it cares to.
But what does that later “consolidation” achieve? Cases can be consolidated for limited purposes. They can be consolidated for discovery only. They can be consolidated for a while and later severed. Or they can be consolidated for trial. Even when consolidated for trial, consolidation does not merge separate cases into one. See, e.g., Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496-97 (1933).
Perhaps, in the MDL context, “consolidated” means “filed in this district so that I, the transferee judge, can try the case consistent with Lexecon” and “coordinated” means “only here for pretrial purposes, ultimately to be shipped back home for trial.” But that’s just a wild guess; we’ve never seen any case or commentary that says we’re right.
Moreover, we suspect that the MDL Panel and MDL transferee judges were using the words “coordinated” and “consolidated” long before the Supreme Court decided Lexecon, so there’s probably a body of law inconsistent with our speculation.
We’re not close to having an answer to this question. But perhaps this post will prompt one of two results. Some scholar (who needs to get a life even worse than we do) will decide that this issue is fascinating and will write an article that gives substance to the words “coordination” and “consolidation.” Alternatively, perhaps some judge will be tempted to write a decision that carefully explains the difference between the two terms, thus giving us some law on the subject.
We figure we’ve done our job by spotting the issue. We’re finished now: Rest of the world, it’s your turn.