We’ve recently been thinking about Lexecon waivers.
(Yeah, yeah: We were thinking about sex, drugs, and Lexecon waivers.)
You know the story: Lexecon v. Milberg Weiss, 523 U.S. 26 (1998), holds that MDL transferee judges lack authority to try cases that originated outside of the transferee court. Thus: The MDL Panel coordinates a bunch of federal cases in Chicago. A plaintiff files a case in federal court in New York. The MDL Panel ships the New York case to Chicago. The MDL transferee court in Chicago has the power to conduct all pretrial proceedings, but the Chicago court can’t try the New York case; the case must be sent back to New York for trial.
It occasionally might make sense for the MDL transferee court to try a foreign case, so parties sometimes execute so-called Lexecon waivers: The parties waive their rights to have the case remanded for trial and consent to a trial before the transferee (here, Chicago) judge. That neatly solves one problem: It lets the MDL transferee judge try the case.
But Lexecon waivers may cause a bunch of other problems.
The traditional rules governing venue are not crazy: There are reasons to have cases tried in jurisdictions that have some relationship to the underlying facts. The reasons identified in forum non conveniens case law include, for example:
The cost of obtaining attendance of willing witnesses: Try a New York case in Chicago, and all of those New York-based witnesses have to buy plane tickets and hotel rooms to testify at trial.
Availability of compulsory process to secure attendance of unwilling witnesses: The Chicago court has subpoena power only over third party witnesses who reside in proximity to the Chicago courthouse. The Chicago court can’t compel attendance by New York-based witnesses who refuse to attend trial voluntary. That means the Chicago jury will be watching hours of videotaped depositions, rather than seeing live witnesses, and there will be no last-minute additions to testimony to respond to unexpected new factual twists.
Possibility of a view of the premises: No one’s flying those Chicago jurors to look at an accident scene in New York.
Imposing jury duty on a community that has no relationship to the litigation: A Lexecon waiver does precisely that.
Having a diversity case tried by a federal court that is familiar with local state law: Same deal.
And so on.
Don’t get us wrong: In appropriate circumstances, Lexecon waivers may be appropriate. But courts shouldn’t request them, or parties consent to them, reflexively. In some situations, the change of forum effected by a Lexecon waiver can effectively change the result of a trial.