Centralizing cases with common facts into one multidistrict litigation (MDL) proceeding for pretrial activities under 28 U.S.C. § 1407 is effective and cost-efficient for both sides because it eliminates the burdens of litigating on multiple fronts, along with duplicative discovery and motions practice. Under the guidance of a judge experienced in complex matters, there are increased opportunities for early resolution, including case-ending threshold motions and global settlement.
With these obvious benefits, it is no wonder that there is a major upswing in the number of requests for MDL proceedings in recent years. During the 1990’s, the Judicial Panel on Multidistrict Litigation received roughly 40-50 requests annually. From 2003 to 2006, that number grew to over 70 requests annually, and by 2007 and 2008, nearly 100 requests poured in each year. The peak hit in 2009 with 121 requests generating 83 new MDL proceedings in that one year alone.
With this boom in MDL requests, the Panel is on a trend of granting a lower percentage of requests. From 2007 to 2009, the Panel denied centralization in 18 percent of the requests. From 2010 to 2013, 41 percent of requests were turned down.
As part of this trend, the Panel is applying increased scrutiny to requests for centralization and articulating reasons not to establish new MDLs. Recent decisions from the Panel reflect their leanings toward other means of accomplishing the same goals of coordination and efficiency, without turning every garden variety lawsuit into an MDL. In two-thirds of the cases denied centralization following the Panel’s February 2014 session, it found that informal cooperation among the parties and coordination among the courts would achieve the same efficiencies as MDL centralization.
The Panel is touting old-fashioned transfers under 23 U.S.C. § 1404 as an alternative to MDL centralization. When there are a small number of pending cases, and those cases are in the earliest stages, transfers to a single court by agreement among parties accomplishes the same goals of coordination and efficiency. These transfers also come with the added benefit of allowing consolidated cases to be tried together in one court. Otherwise, in an MDL, the court is required by law to transfer cases back to their “home” courts for trial.
Other aspects receiving a harder look from the Panel today are whether there are a sufficient number of cases to create an MDL; whether the factual and legal issues in the cases are sufficiently complex to require MDL treatment; and whether the cases are at different procedural stages, meaning an MDL might actually slow down progress.
Despite this new trend, an MDL is a good avenue to pursue when there are a large number of complex cases. To increase the chance of success, follow these pointers. First, don’t jump the gun. If there are only a few cases pending in only a few courts, the Panel might say no. Waiting for a solid number of cases in geographically diverse courts can improve the argument for an MDL. Second, be sure the facts are truly common. This is the core concept in the MDL statute because it is the basis for avoiding duplicative activities; without it, the request is likely to get turned down. Third, consider whether the cases are sufficiently complex. The Panel increasingly turns down requests where it finds the legal claims are straightforward and the factual issues are relatively simple. Finally, work hard to reach agreement with other parties on which court and judge are best suited for the MDL. With a smooth path to centralization, the Panel is more likely to say yes to an MDL.