The full article is available to read in the recently released 44:1 issue of the American Journal of Trial Advocacy.
Excerpt:
Multidistrict litigation (MDL) has a legitimacy problem. MDLs have been the target of sustained academic criticism for years. They have been called “a cross between the Wild West, twentieth-century political smoke-filled rooms, and the Godfather movies.”[i] Academics have challenged the device for, among other things, depriving plaintiffs of meaningful choice of counsel, for their insider-favoring opacity, and for allowing courts to arrogate power to themselves not authorized by statute or rule. Congress has considered at least one bill that would have seriously restricted courts’ ability to oversee MDLs, and various plaintiffs and defense counsel have petitioned the Advisory Committee for the Federal Rules to enact new rules that would govern various practices in MDLs, from interlocutory appeals to supervision of settlements.
There is little mystery to all this interest. By recent estimates, MDLs make up somewhere between thirty and forty percent of the federal civil docket—even more if one excludes prisoner cases and Social Security cases. They are also a large source of revenue for others. As a recent fee dispute in the various pelvic repair systems litigations illustrates, a single consolidated MDL can represent tens—if not hundreds—of millions of dollars in fees for the law firms involved. When high-value, high-profile cases are decided according to insider-developed norms and opaque procedures, observers should be concerned.
Compounding the issue, a number of MDL judges’ favorite techniques—such as conducting bellwether trials and overseeing of global mass tort settlements—are founded not on rules or legislation but on the acquiescence, if not consent, of the litigants. This does not mean judges cannot exert some leverage over litigants, but rather without those litigants’ willing participation, creative solutions to procedural challenges will likely fail.
As a result, New York Federal District Judge Jack Weinstein has rightly observed that MDLs rely heavily on public trust in the judicial process. To the extent that the public—including likely plaintiffs and defendants—believe the MDL process will produce fair outcomes consistent with existing law, judges can retain the discretion to seek creative solutions free from interference from the appellate courts, the Judicial Conference Advisory Committee on Rules of Civil Procedure, Congress, and free from resistance from litigants. However to the extent MDLs are viewed as special, and somehow exempt from the federal rules, these other public forces will push back against innovative attempts to manage and resolve large numbers of claims.
It is distressing that, against this backdrop, MDL judges tend to resist efforts to create consistent rules and practices accessible to, if not the general public, at least non-MDL lawyers. However, these judges operate from a firm conviction that every MDL is unique and require creative, bespoke management from judges. The plaintiffs’ bar has made efforts to support that intuition. MDL judges have essentially created a federal common law of MDL procedure. Yet, in another deviation from the norm, this common law “is rarely treated as precedential or even subject to the customary appellate review.”[ii]
This Article aims to correct some of that problem. There is no way to mandate that intelligent, fiercely independent judges follow the federal common law they have developed over the last several decades. But it is possible to catalogue and distill the accumulation of non-precedential experience into principles that capture the best possible qualities for adjudicating MDLs, and make them apparent to both judges and litigators. And, as it turns out, a careful review of MDL practice shows that MDL courts are not quite as lawless as depicted. Instead, particularly in the last ten years, MDL judges have loosely adopted practices that mirror practices in traditional litigation and have worked towards greater transparency and accountability.
This Article identifies ten principles for managing MDLs based on the underlying premise that multidistrict litigation works best when plaintiffs and defendants willingly consent to orders. This occurs when a judge’s orders serve the principles stated in Rule 1 of the Federal Rules of Civil Procedure: enabling the “just, speedy, and inexpensive” resolution of cases. For MDLs, that means getting compensation to actually-injured claimants as quickly as possible, while effectively screening out those who cannot, or should not, recover for various legal or factual reasons. This underlying premise—and the principles it suggests—applies to litigants as much as it does to judges.
[i] Martin H. Redish & Julie M. Karaba, One Size Doesn’t Fit All: Multidistrict Litigation, Due Process, & the Dangers of Procedural Collectivism, 95 B.U. L. REV. 109, 111 (2015).
[ii] Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook Understandings of Procedure, 165 U. PA. L. REV. 1669, 1669 (2017
American Journal of Trial Advocacy 