Clients often ask us whether the MDL Panel will coordinate their cases and, if so, in what district and before which judge. We’ve tried in the past to “Mak[e] Book On The MDL Panel,” but we limited our investigation to product liability cases.
A research associate at the Federal Judicial Center and a professor at Vanderbilt Law School have now published a more expansive empirical analysis. Margaret Williams and Tracey George’s “Between Cases and Classes: The Decision to Consolidate Multidistrict Litigation” (SSRN link here) is a welcome addition to the MDL literature. Because this is an academic paper, Williams and George first “explain the nature of multidistrict litigation and the work of” the Panel, and so on and so forth. (One reason we like blogging is that we don’t feel compelled to start at the first-grade level with each post; we start where we start, and readers either abandon us or hang on for the ride. Traditional scholarly media seemingly don’t provide that luxury.)
[Please note that in the following paragraphs we’ve interspersed our reactions to the Williams and George piece with their original analysis. Thus, the tough sledding below was contributed by the scholars, but you shouldn’t assume they agree with everything that we’ve written below.]
Eventually Williams and George get to the good stuff. They analyzed a sample of 90 orders from the MDL Panel from 2003 to 2009 to determine empirically how the Panel decides (1) whether to coordinate cases, (2) the transferee district, and (3) the transferee judge. (Williams and George intend eventually to analyze a larger sample of cases, dating back further in time, but they’ve decided to publish preliminary results in this paper.)
The first question — factors affecting whether to coordinate cases — can’t easily be analyzed empirically. Not surprisingly, the Panel identifies three factors — whether cases involve common questions of fact; whether consolidation would serve the convenience of the parties; and whether consolidation would promote a just or efficient outcome — in 100 percent of its orders granting motions to coordinate. Since those three factors are the statutorily enumerated ones (28 U.S.C. Sec. 1407(a)), it’s no surprise that the Panel routinely mentions them.
The Panel mentions three other factors — conserving judicial resources; avoiding duplicative discovery; and avoiding conflicting rulings — in 85 percent or more of its orders. But that’s meaningless, too, because those factors are generic to all cases and largely derivative of the statutory standards.
Finally, the Panel mentions the pendency of a putative (or certified) class action in 42 percent of its transfer orders. This doesn’t surprise us either: It’s well known that the pendency of class actions can affect the decision to coordinate, and not all potential MDL’s include putative class actions. We’re not surprised that the Panel mentions that factor in many, but not all, cases.
Williams and George’s other empirical analyses are more helpful. As to the MDL Panel’s selection of the transferee district: (1) San Francisco, New York, Los Angeles, Washington, Boston, and Minneapolis are most common and, combined, account for half of all MDLs, (2) 25 percent of all MDLs are sent to courts within the Ninth Circuit (which is predictable, since both LA and San Francisco are included among the six most likely transferee cities, but critically important if Ninth Circuit law differs from other circuit law in a way that could help or hurt your client), and (3) the factor the Panel cites most frequently to explain its selection of transferee court is the pendency of a number of the involved cases in that district, with the location of parties and witnesses, experience of the transferee judge, and the availability of appropriate resources next in line.
Three factors stood out as statistically significant in the Panel’s selection of transferee courts: (1) districts containing a tag-along (later-filed) case, (2) districts supported by the defendants, and (3) districts represented by a judge serving on the Panel.
Finally, selection of the transferee judge: The factors cited by the Panel most frequently were “experience with similar or complex cases” and “appropriate workload.” The judges chosen to serve the transferee role were fairly experienced, with a mean of 13 years serving as a judge. And service as the chief judge of the transferee district (at some point during the judge’s career) increased the likelihood that the Panel would pick that judge.
Predicting the results of motions before the MDL Panel remains more art than science, but we’re delighted that there’s now a little more science available to support our hunches.