For those unfamiliar with the procedure for creation of multi-district litigation (MDL), the process can seem daunting and unpredictable. For example, you may be in the beginning stages of litigating a few manageable consumer products-related cases in federal court. Before you even file a responsive pleading, however, the plaintiffs raise the stakes and seek to create an MDL, consolidating your cases with several other actions in different jurisdictions against competing manufacturers. Such a scenario forces you to field questions regarding the probability of consolidation and whether you have a real opportunity to oppose the MDL.
The answers to these questions rest largely on the Judicial Panel on Multidistrict Litigation (JPML), which was created by Congress in 1968 under 28 U.S.C. § 1407 to determine the appropriateness of, and location for, an MDL. The law allows for transfer of one or more actions that have “one or more common questions of fact” and upon the JPML’s “determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.”