One of us just returned from the Tulane Law Review’s symposium on “The Problem of Multidistrict Litigation.” The Review did itself proud, with an impressive group of speakers presenting to a large crowd. We’re now flipping through our notes to see what’s worth reporting.
Since the symposium focused on multidistrict litigation, we’ll start with the presentation by Judge John Heyburn, the (relatively) new chief judge of the MDL Panel. He said a few noteworthy things.
First, we knew that there’s recently been some turnover of judges on the MDL Panel, and that didn’t historically seem to be true. Judge Heyburn enlightened us about what’s happened. (We’re always reluctant to write words like those — “we were enlightened” — in this public forum. With readers as sophisticated as those who visit this blog, we’re sure a couple of you will gasp, “What? Those clowns didn’t know that?” But we figure that we should treat ignorance like the rest of our characteristics: If you’ve got it, flaunt it.)
Anyway, here’s the deal: The Chief Justice of the United States “established by recent custom” a seven-year term limit for service on the MDL Panel. So that’s what’s changed.
Second, we had a general sense from our past experience how long it takes the Panel to decide motions to consolidate, but Judge Heyburn told us straight from the horse’s mouth: The Panel typically decides motions to consolidate within 15 to 20 days after argument. (Although Judge Heyburn didn’t say so, we suspect this average number may be slightly misleading. The logistics involved in centralizing three 10b-5 cases may be less challenging than the logistics of consolidating 100 product liability cases, so you might wait slightly longer for a decision in the category of cases that most interests us. Still, we’re pleased to see that the Panel is aware that delay in deciding motions to consolidate can cause problems, and decisions in two to three weeks is pretty quick work for a court.)
Third, we put to Judge Heyburn the question that’s troubled us (and others) before: The multidistrict litigation statute authorizes the Panel to transfer cases “to any district for coordinated or consolidated pretrial proceedings.” What the heck’s the difference between “coordinated” proceedings and “consolidated” ones?
Unfortunately, we didn’t get much comfort there. Judge Heyburn said that “cases must be consolidated before they can be coordinated” and that the meaning of those words varies “case-by-case and judge-by-judge.” We hope our friends who are acting as reporters for the ALI’s aggregate litigation project manage to wrestle this issue to the ground. Otherwise, we’ll remain behind the looking glass: “‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone,’ it means just what I choose it to mean, neither more nor less.'”
Finally, Judge Heyburn told us about a possible new rule for arguments before the Panel. (As many visitors to this blog know, the rule of thumb for lawyers arguing before the Panel is this: “Don’t worry about being treated with too much respect by the Judicial Panel on Multidistrict Litigation.” The Panel often gives lawyers the right to argue for just one minute on even the most important issues. Since you’ll be flying in the night before, taking a cab to a hotel, spending the night, and cooling your jets at the Panel waiting for your case to be heard, those better be pure gems of wisdom dropping from your lips during your sixty-second argument to justify the expense to the client.)
But here’s the news! Spread the word! The Panel is considering giving lawyers a minimum of two minutes to argue.
I guess now we no longer have to feel guilty when we fly halfway across the country to attend one of those hearings.
(Private note to Judge Heyburn and the other judges on the MDL Panel visiting this blog for the first time: We rough up everything and everybody we write about in this space — including ourselves. Don’t take offense. We love you guys. Really. It’s just that being jerks makes us happy, and “if you’re not even happy, what’s so good about surviving?”)