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ABSTRACT
After years in the shadows, the Multi-District Litigation (MDL) docket has exploded in the 21st century. Commentators have identified various reasons, among them appellate disapproval of the class action as a means of managing multiple personal injury claims; pervasive technology that facilitates solicitation of clients; and steadily-rising global settlement amounts. It is no longer in dispute that mass torts have become big business.
The Judicial Panel on Multi-District Litigation (JPML) enjoys broad authority to transfer and consolidate cases. The JPML's only limitations are that (a) common questions of fact must exist among the actions; and (b) centralization in a single district will further the convenience of the parties and witnesses, and promote the just and efficient conduct of the actions. While MDL consolidation was intended to reduce inefficiencies, actual practice-and unintended consequences-have introduced new burdens of cost, time, and uncertainty.
This paper discusses the practices and procedures currently used in the initial stages of MDL centralization from the perspective of an MDL defendant's lawyer. The author does not argue that MDLs should be abandoned, but instead suggests there are simple improvements that can ameliorate some of the burdens that mark the early stage of the MDL process. The paper examines how arguments are initially made to the JPML; the factors that drive the choice of the transferee court; the weight given in the consolidation decision to the number of class actions; whether multiple defendants should be joined in a single MDL; the ballooning proliferation of filings once an MDL is established; and the bundling of multiple plaintiffs in a single bellwether trial.
DISCUSSION.........................................229
I. Current Practice: The Judicial Panel on Multi-District Litigation currently schedules oral argument on all motions for §1407 consolidation........................229
II. Current Practice: The factors favoring venue selection.. 231
III. Current Practice: Absent unusual circumstances, the Panel has often ordered centralization where a number of putative class actions are pending and overlapping classes are sought, largely to avoid the potential for inconsistent rulings on class certification.......................................232
IV. Current Practice: The Panel occasionally grants a consolidation motion seeking to join multiple manufacturers or other corporate defendants in a single MDL, since all are alleged to have engaged in an unlawful, industry-wide practice .................................................233
V. Current Practice: MDL consolidation of individual personal injury...