A Primer on MDLs - FAQs
What is multidistrict litigation?
Multidistrict litigation or “MDL” as it's known is the process that federal courts use to coordinate pretrial proceedings for cases with factual similarities. Congress has statutorily authorized multidistrict litigation through 28 U.S.C. § 1407.
The Judicial Panel on Multidistrict Litigation includes seven judges from throughout the country who are selected by the Chief Justice of the United States Supreme Court. The “Panel” decides whether to centralize related proceedings before a single federal judge and then which judge will receive those cases. To make this decision, the Panel considers many different factors such as whether discovery needs are similar, whether similar facts exist, the number of actions, and whether there are competing motions for class certification.
Once the Panel decides to transfer cases, they have to pick a judge to handle them. For this decision, they consider things like the location of discovery materials, the convenience of the witnesses, location of the majority of actions, knowledge of the transferee judge, and the willingness and motivation of a particular judge to handle an MDL docket.
The judge that the Panel selects to preside over related cases is called the “transferee judge.”
Chapter 1 of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation provides more details on what MDL is and what a plaintiff or her attorney might expect in an MDL situation.
What's the difference between a class action and MDL?
Multidistrict litigation is the process that federal courts use to coordinate related cases before a single judge.
What is a "lead lawyer" and why wasn't my attorney picked for a leadership role?
MDLs can include hundreds (and sometimes thousands) of plaintiffs. The transferee judge who presides over these cases isn't able to talk with each lawyer individually.
So, she selects a group of lead lawyers--lead counsel, plaintiffs' executive committees, liaison counsel, steering committees, and other lead roles. Those are the attorneys who do the majority of the work in a given proceeding.
Currently, judges use several factors to select leaders: experience, cooperative tendencies, and an ability to finance the lawsuits. (Large multidistrict proceedings can cost plaintiffs’ attorneys millions of dollars to develop.)
As the bubble charts below show, these factors tend to empower the same lawyers again and again. That can lead to trouble. To find out more, read Chapters 2 and 3 of Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.
How can I get my case out of an MDL proceeding?
Having a case sent back to its original court or "remanded" to its court of origin is extremely difficult.
What's troubling about mass tort deals?
Judges and academics have long raised questions about arms-length bargaining and adequate representation in the class-action context, even though Rule 23 builds in some safeguards. In class actions, for example, judges have the authority to appoint class counsel; consider whether counsel adequately represents class members; ensure that any class settlement is fair, reasonable, and adequate; and award class counsel’s attorney’s fee.
Which proceedings are included in the dataset?
Here is a list of the proceedings in the dataset.
All of the documents that the book cites (and many, many more) are available (and searchable) via the MDL Docs page, courtesy of the University of Georgia School of Law. Please note that the folders dedicated to each proceeding do not contain anything close to all of the documents filed in that proceeding. Instead, they include the documents that underlie the data and arguments in Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation.
New documents that may be of interest to the public and the press will be added from time to time, but again, the documents do not include all of the documents or orders in any proceeding.
Where can I find historical data on MDL proceedings?
Dr. Margaret S. Williams, a senior researcher at the Federal Judicial Center, has posted a wonderful and highly informative paper called The Effect of Multidistrict Litigation on the Federal Judiciary over the Past 50 Years.
I'm a plaintiff in an MDL, what do I need to know?
I've written a relatively short "primer" for plaintiffs who find themselves swept up in an MDL. It covers the following topics:
Basic MDL Statistics
Lead Lawyers & Repeat Players
Mass Tort Settlement Provisions
Mass Tort Deals marshals a wide array of empirical data on multidistrict litigation to suggest that the systemic lack of checks and balances for these cases may benefit everyone but the plaintiffs.
Analyzing mass-tort cases consolidated over 22 years and settled over 14, including the deals insiders negotiate, the “common-benefit” attorneys’ fees that the lead plaintiffs’ attorneys receive to run the litigation, and the judicial rulings, reveals a troubling pattern: repeat plaintiff and defense attorneys persistently benefit from the current system.
Defense lawyers are able to end sprawling lawsuits on their corporate client’s behalf while lead plaintiffs’ lawyers broker deals that reward them handsomely and sometimes pay litigants very little.
By identifying settlement provisions that one might argue principally benefit the repeat players, Mass Tort Deals examines the publicly available nonclass settlements these elite lawyers designed. All of those settlements can be downloaded by clicking on the links below.
Every settlement features at least one closure provision for corporate defendants (all listed and described below), and nearly all contain some provision that increases lead plaintiffs’ lawyers’ common-benefit fees.
Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome. Based on the evidence available, there is reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings and settlement programs—when they “play for rules,” so to speak—the rules they develop may principally benefit them at plaintiffs' expense.
(Click below to view)