When you’re scheduled to argue before the MDL Panel, the Panel sends a notice of “Procedures for Oral Argument.” The Procedures document says that the “Panel insists that counsel limit all oral argument to the appropriate criteria,” and cites In re “East of the Rockies” Concrete Pipe Antitrust Cases, 302 F. Supp. 244, 255-56 (J.P.M.L. 1969), as discussing those criteria.
As sure as we’re typing here, those instructions have prompted countless counsel to scramble to East of the Rockies to see what the Panel views as the relevant criteria.
We have two reactions: First, the Procedures document is slightly misleading. Counsel often argue issues that are not strictly limited to the “appropriate criteria,” and the judges on the Panel themselves sometimes ask questions that aren’t so limited. Reading East of the Rockies and thinking about how it applies to your case is not sufficient preparation.
But, second: Why not save the world some time? These are the twenty questions identified in East of the Rockies as being factors appropriate for counsel to argue before the MDL Panel:
1. How many common questions of fact are there?
2. What is their nature?
3. How many cases are presently and prospectively involved?
4. What is the geographical location of the districts in which the cases pend?
5. If it is anticipated that further cases will be filed, in what districts?
6. Who are the principal witnesses in the cases and where do they reside?
7. What detriment, financial or otherwise, will be imposed upon any of the parties by ordering transfer?
8. Will transfer result in a substantial saving of duplicative work?
9. Will transfer usefully avoid conflicting rulings in the pretrial proceedings of the cases involved?
10. Can many of the advantages of transfer be worked out by cooperation among counsel without transfer?
11. Are pretrial proceedings already far along in any one or more of the cases?
12. Will transfer hasten or delay progress in the cases?
13. What is the availability of a judge in the proposed transferee court or courts?
14. Will the advantages of transfer overcome the normal desirability of having the same judge who conducts the trial also conduct pretrial proceedings?
15. Will transfer impede or promote the prospect of settlements?
16. Will transfer serve any ulterior motive of any party or parties, such as forum-shopping?
17. If class actions are involved, will transfer make for complexity or for simplification?
18. Will transfer unjustly delay or deny any party’s right to provisional remedies such as injunctive relief?
19. What is the status and possible effect of any appeals pending in any of the cases?
20. Will transfer operate to eliminate or avoid an undesirable multiplicity of appeals on similar issues?
That’s our good deed for the day. Now you won’t have to look them up again the next time you’re appearing before the Panel.