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We wrote a post not too long ago recommending that MDL defendants seriously consider limiting so called “Lexecon (read the prior post if you don’t know what that means) waivers” to single plaintiff trials and to exclude punitive damages.  We included a caveat that “this idea wouldn’t have worked” in all situations, if the MDL judge is bound and determined to chase down a non-waiving defendant in the original transferor district.  See Eghnayem v. Boston Scientific Corp., 873 F.3d 1304 (11th Cir. 2017) (MDL judge trying out-of-district case as visiting judge).

We were assuming, of course, that the MDL court could engineer a temporary appointment as a visiting judge under 28 U.S.C. §292(d) – something we’d first brought up a long time ago.  Indeed, the Manual for Complex Litigation (4th) mentions this possibility.  See Id. §20.132, at 247 (Fed. Jud. Ctr. 2005).

We should have researched that assumption first, or at least gone back through our own old posts.  It turns out that the only appellate authority on MDL judges trying cases as visiting judges says you can’t do it.  See In re Motor Fuel Temperature Sales Practices Litigation, 711 F.3d 1050 (9th Cir. 2013) (“MFT”).  Not only that, we actually blogged about the MFT ruling when it was decided.  If we hadn’t been preparing an MDL best practices project for Duke Law School, our forgetful ignorance would have continued.

Anyway, we figure if we can forget something like that – although we actually wrote about it – you might, too.  So with the problem of multi-plaintiff consolidated punitive damages MDL show trials fresh in our minds, here’s a refresher:

MFT refused to approve a “temporary assignment” designation sought by an MDL judge to try a case that was otherwise precluded by Lexecon, even though Lexecon was not totally on point

Lexecon dealt with venue, not judicial case assignment.  The Lexecon Court held that a plaintiff is entitled to select the venue where the case will be tried, and this right can’t be undermined by having the case transferred for pre-trial proceedings under the MDL process.  Venue is important for a number of practical reasons, such as ease of access to the forum by plaintiffs and their lawyers and, perhaps most important, selection of the jury pool.  Venue does bear on which judge will be assigned to the case, as one of the judges of that district will normally preside, but there’s no guarantee of that.

711 F.3d at 1054.  Nonetheless there was “some force” to the argument “that allowing the MDL judge to follow the cases after the conclusion of pre-trial proceedings resuscitates the self-referral practice that the Supreme Court unanimously repudiated in Lexecon.”  Id.  Just not enough force to win the point on that basis, since Lexecon itself did not dictate the outcome.

Instead, MFT looked to the Guidelines for the Intercircuit Assignment of Article III Judges promulgated under the Chief Justice’s authority the year before.  These guidelines set out specific criteria for allowance of intercircuit transfers, and letting an MDL judge try cases s/he otherwise couldn’t wasn’t one of them.  Rather such transfers are permitted only under very specific circumstances.  “Only severe or unexpected over-burdening, as happens when a judge dies or retires, when the district is experiencing a judicial emergency or when all the judges are recused because of a conflict, will warrant bringing in a visiting judge.”  MFT, 711 F.3d at 1053.

While we would ordinarily include a link to the guidelines themselves, they’re not independently available either on the Internet or on the Federal Judicial Center’s website. Helpfully, they are attached as “Appendix A” to the MFT decision.  These guidelines do not provide any support for an MDL judge taking the initiative to ride shotgun on remanded cases:

  • The “primary source of intercircuit assignments should be senior judges.”
  • The first choice for designating a visiting judge is “from another court within the circuit.”
  • Assignments are not controlled by the would-be visiting judge, but rather selected by the chief justice and the Committee on Intercircuit Assignments, in order “to avoid the appearance of impropriety or conflict of interest.”
  • “The appropriate way to initiate a formal request for an intercircuit assignment is for the circuit chief judge to send a Certificate of Necessity to the Chair [of the Committee on Intercircuit Assignments].”

Thus MFT rejected the request of an MDL judge to retain authority over a remanded case:

[T]he process of transferring judges between circuits, as delimited by the Chief Justice’s Guidelines, is directed strictly toward meeting judicial necessities, whereas the transfer in this case would serve a different purpose. . . .  [H]aving the district judge who conducted MDL pre-trial proceedings also preside over the trial of the case can improve judicial efficiency, preserve scarce judicial resources and enhance MDL judges’ control over their proceedings.  These are worthy goals, to be sure, but not ones in any way reflected in the Guidelines.

MFT, 711 F.3d at 1054.  Allowing a transfer would effectively divest the judges of the transferor district of cases ordinarily assigned to them.  There is “no authority empowering the chief judge of the circuit to re-assign cases pending before other judges, or to remove cases from the district’s assignment wheel” in the absence of recusal.  Id. Short of amending the guidelines (which doesn’t seem to have happened since 2013) there wasn’t “any way” to “constru[e]” them to allow an MDL judge to engineer his or her own assignment to a specific post-remand case.  Id. at 1055.

Since it was decided in 2014, MFT hasn’t been cited except in the Ninth Circuit – as we suppose befits such an arcane decision.  It may well be, as a commentator has commented, that visiting judge “requests are often granted routinely by circuit chief judges” in MDL situations.  Sherman, “When Remand Is Appropriate in Multidistrict Litigation,” 75 La. L. R. 455, 460 (2014).  However, “intercircuit transfers based on efficiency could encroach on the authority of transferor judges to resume rightful control over their cases upon completion of pretrial proceedings.”  Id.  See MacFarlane, “The Danger of Nonrandom Case Assignment:  How the Southern District of New York’s ‘Related Cases’ Rule Shaped Stop-and-Frisk Rulings,” 19 Mich. J. Race & L. 199, 213 (2014) (“the visiting judge [under §292(d)] would be expected to help relieve that burden, rather than dictate what types and number of cases he or she is willing to hear”).

It may seem extreme that an MDL judge would react to Lexecon – and lack of an appropriate waiver − by seeking to chase the parties back to their home districts, but such an extreme situation is precisely when our clients may feel compelled to invoke MFT to try to end the chase.  We hope our clients never need it, but if they do, remember that the only actual precedent out there rejects letting MDL judges maintain control over cases after remand.