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There were a lot of hotshots at the ALI-ABA course on “Mass Litigation” in Charleston, SC, a couple of weeks ago.

One of those hotshots mused that it’s become awfully hard to predict where the MDL Panel will transfer a set of newly coordinated cases these days because the Panel has become a black box.

The Panel has, in the past, articulated factors that guide its decision where to transfer cases — the preference of the parties, location of the evidence, geographic centrality of the transferee court, opportunities to coordinate with state court proceedings, familiarity of the federal judge with the the issues, etc.

But, said the hotshot, the Panel no longer truly relies on those factors (if it ever did) in deciding where to send cases.

Increasingly, federal trial judges are lobbying the Panel to be assigned new coordinated proceedings, and the Panel tries to accommodate interested judges who seem up to the task.

When the Panel selects a transferee court, it now often appears to be considering primarily (1) which judges want the cases, (2) which judges seem to have the necessary skills to handle the cases, and (3) whether any of the likely transferee judges are already too busy handling other MDLs to take on a new one.

According to the hotshot, those new rules have changed the game. Even when the parties agree on a proposed transferee court, the MDL Panel will now occasionally ship the cases elsewhere.

When the hotshot stopped speaking those words, an awful lot of smart heads started bobbing up and down in agreement.

If those words are true, that’s terribly unfortunate.

The MDL Panel’s selection of a transferee court can be critically important in the life of a set of cases. The law of the transferee circuit will control federal questions in pretrial proceedings; the selection of the transferee court can thus be case-dispositive. Even if the choice of governing law is not critical, the temperament and attitude of the presiding judge makes a real difference to the litigants.

Given the importance of the choice of transferee forum, the process leading to that decision should be transparent and honest. The Panel ought not to identify a bunch of factors in its published decisions — preference of the parties, location of the evidence, etc. — that will cause the parties to brief those factors and predict the likely result based on those factors, only to have the Panel blithely ignore all of those stated grounds when the time comes to actually choose a transferee court.

That’s not right.

American courts don’t deliberate in public, but they do articulate the rules that will govern their decisions, and courts are supposed to follow those rules.

Courts should not deceive parties into believing that one set of rules applies to the courts’ decision-making and then in reality apply a different set of rules.

As we’ve said before on this blog, we can live in many different environments. But, whatever the environment, we must know the rules — the real rules, not the fake ones — in advance. If the MDL Panel prefers to select transferee courts based on some new set of criteria — perhaps, (1) interest of the transferee judge in handling the cases, (2) which of the possible transferee judges have time available to handle the cases, and (3) the need constantly to groom new transferee judges who will be able to manage increasingly complex cases in the future — then the Panel should be honest. The Panel should issue a decision (or promulgate a new set of rules) that tells litigants which, if any, of the previously articulated factors are still relevant and what new factors the Panel is now considering.

The MDL Panel, like all other courts, should be forthright about the bases on which it is resting its decisions.