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August 11, 2016 by Steven J. GreenfogelDownload PDF

Musings From The Left Coast: The Judicial Panel on Multidistrict LitigationSteven J. Greenfogel

Last month, I attended the Judicial Panel on Multidistrict Litigation (JPML) hearing in Seattle. The Panel, consisting of seven federal judges (both District and Circuit Court judges), meets approximately six times per year at various (mostly delightful) locations throughout the country. The hearings always take place on a Thursday, giving the Panel members (and the attorneys who are attending the Panel) an opportunity to spend a long weekend in a venue that most of us would consider a prime vacation spot.

Among this year’s locations were Fort Myers, Florida, Santa Barbara, California, Chicago, Charlotte and Washington, D.C. Over the years, the Panel has even held hearings in locations where there is no federal courthouse at all, such as Palm Springs, California.

The ostensible purpose of the Panel is to consolidate in a single forum, for pretrial purposes, similar litigation that has been filed in different District. For example, an antitrust case, alleging an identical price fixing conspiracy against similar defendants, might be filed in ten different Districts. Rather than waste precious judicial resources by having ten different judges hear many of the same issues and risk the danger of divergent results, the Panel will select a single forum where all pretrial issues will be adjudicated by a single judge.

Traditionally, the Panel would select a very experienced jurist to oversee the consolidated litigation. This has changed in more recent times, with the Panel giving younger judges the opportunity to shepherd cases through to their ultimate resolution. One of the side effects of this change in judicial selection seems to be the lengthening of the time it takes for MDL litigation to reach an endpoint. Whether that is a result of the experience (or lack thereof) of the judges who are handling the cases is certainly open to debate. What isn’t in doubt, however, is how much more costly this type of litigation has become to both sides.

Since the Supreme Court opinion in Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), once pretrial proceedings are concluded, each consolidated case must be sent for trial back to the District where it was filed initially. In reality, however, once a case is consolidated, almost all plaintiffs join in a consolidated amended complaint, giving the judge assigned by the MDL Panel ultimate trial responsibility.

Listening to the Panel arguments, I was struck by the shift in the Panel’s view as to its purpose. When I first started working on Multidistrict actions (my first was In re Plumbing Fixtures, MDL # 3 and now we have surpassed #2750), as most of the litigation that I am involved with has been, the Panel would almost automatically consolidate any case with similar allegations and send it to a judge and District that had a long history of engaging in complex matters. At the Panel hearing that I attended last month, however, the Panel expressed great skepticism about consolidating certain cases, opining that individual courts might be better off handling their own cases, while opting for informal cooperation in pretrial proceedings.

I found this to be quite surprising, and antithetical to the purpose of the Panel, which is to organize large multidistrict litigation in the most efficient manner possible. Perhaps judges are getting tired of taking on cases that clog their dockets and take years to wrap up. Or maybe the Panel is simply looking for new ways to deal with what, to many, appears to be (and often is) cumbersome litigation. Only time will tell whether this trend will continue and whether it is a good idea. Personally, I doubt that it is.