We’re delighted when our blog gives people food for thought.
So we were tickled pink when Daniel A. Richards, a student at Fordham University School of Law, told us that one of our blog posts had given him a topic for his law review note. And Daniel was kind enough to send us a link to his just-published note, “An Analysis of the Judicial Panel on Multidistrict Litigation’s Selection of Transferee District and Judge.” (As we reported a couple of months ago, two distinguished scholars examined this question in their recent paper, “Between Cases And Classes: The Decision To Consolidate Multidistrict Litigation” (SSRN link here). In that empirical analysis, 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. As for the selection of 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.)
Richards’ note addresses the same subjects, but not as empirically. Rather, he read (God love him) every MDL transfer order entered between 2003 and 2008. He then identified the factors that the Panel cited most frequently in those decisions to justify its selection of transferee court and judge.
And the conclusion is . . .
“In general, when the JPML is explaining its reasoning for selecting a transferee district and judge, it most frequently cites the docket conditions of a transferee district or judge, the preference of the parties, the concentration of constituent actions, and the location of an important party in the litigation.” 78 Fordham L. Rev. at 343.
Richards also breaks down the data by the nature of the MDL proceedings — antitrust, product liability, securities, etc. He then identifies factors that seem to be more important in one category of case than another. For example, “[a]lthough the general experience of the transferee judge is likely an important factor in products liability MDLs, it is less so in securities MDLs. Also, geographic centrality is an important factor in products liability MDLs and is less important in antitrust MDLs.” Id. at 345.
Sadly, all of this work doesn’t lead to very concrete conclusions. It’s still awfully hard to guess how the MDL Panel will apply in any one case the many variables that go into its selection of transferee court and judge, and it remains terribly difficult to advise clients on this subject.
But we’re delighted to see that a law student has joined the ranks of those wrestling with these issues, and perhaps we’ll see more work in this field in the future.