Multidistrict and Multicircuit Litigation: Coordinating Related Federal Cases

Multidistrict and Multicircuit Litigation: Coordinating Related Federal Cases

November 17, 2021
Multidistrict and Multicircuit Litigation: Coordinating Related
Federal Cases
Sometimes a single event or a common set of facts spurs
A key feature of the district court MDL statute is that it
litigation in multiple federal courts. For instance, a plane
allows for transfer and consolidation of pretrial proceedings
crash or a widespread product defect may affect individuals
only. MDL proceedings in a transferee court may include
from many states and lead to numerous related district court
cases originally filed in that district, cases transferred to that
lawsuits, or a federal regulation with national reach may
district, and cases filed in the transferee district after the
trigger petitions for review in several federal appeals courts.
proceedings have been centralized there. The transferee
Such proceedings are known as multidistrict litigation or
court must remand any case that is not terminated before
MDL at the district court level and multicircuit petitions for
trial to the district from which it was transferred or the
review at the circuit court level. Congress has enacted
district in which the case would have been filed in the first
statutes creating special procedures for both MDL and
instance. As a practical matter, however, relatively few
multicircuit petitions with the goal of allocating judicial
MDL cases are remanded: the MDL Panel reports that as of
resources efficiently and ensuring consistency across
September 30, 2020, more than 97% of terminated MDL
related cases.
proceedings were terminated by transferee courts, while
fewer than 3% were remanded. One reason for this is that
District Court MDL
the vast majority of federal cases terminate before trial,
The procedures governing MDL in the trial-level federal
either through motions to dismiss or for summary judgment
district courts date from the 1960s. Between the 1940s and
or because the parties reach a settlement. Moreover,
the early 1960s, the federal courts grappled with how to
transferred MDL cases may remain in the transferee court
address the increasing complexity of federal litigation,
for trial if the parties consent to it.
particularly the proliferation of multiple cases raising
overlapping questions of law and fact. In the early 1960s,
One high-profile example of district court MDL is the
federal courts developed ad hoc procedures to coordinate
opioid MDL, in which an Ohio district court judge is
hundreds of civil suits that arose following criminal
coordinating pretrial proceedings in more than 2,400 cases
antitrust prosecutions of certain electrical equipment
against opioid manufacturers and distributors alleging that
manufacturers. Recognizing the need for a more formal and
the defendants contributed to the opioid epidemic by
comprehensive solution, the Judicial Conference of the
misrepresenting the risks of long-term opioid use and
United States also called on Congress to act in this area.
failing to monitor suspicious orders.
In 1968, Congress enacted the district court MDL statute,
Multicircuit Petitions for Review in the
28 U.S.C. § 1407, and established the Judicial Panel on
Federal Appeals Courts
Multidistrict Litigation (MDL Panel). The statute allows the
While federal litigation often begins in the district courts,
MDL Panel to transfer cases to a single district court for
Congress has provided for direct review of some agency
coordinated or consolidated pretrial proceedings. The Panel
actions in the federal circuit courts of appeals. For instance,
may exercise this power when cases involve “one or more
petitions for review of certain agency actions under the
common questions of fact,” and when it determines that the
Clean Air Act and the Clean Water Act must commence in
transfer “will be for the convenience of parties and
the federal appeals courts. Because federal agency
witnesses and will promote the just and efficient conduct of
rulemaking frequently applies nationwide, a single agency
such actions.” The MDL statute gives the MDL Panel
action often gives rise to petitions for judicial review in
significant discretion in determining whether to consolidate
several federal appeals courts. A federal statute, 28 U.S.C.
proceedings.
§ 2112, governs those multicircuit petitions for review.
The MDL Panel reports that since its establishment, it has
Congress enacted the current version of Section 2112 in
“considered motions for centralization in more than 2,870
1988. Before the 1988 amendment, the statute provided that
dockets involving almost 670,000 cases and millions of
if petitions for review of the same agency action were filed
claims.” The Panel further reports that its “dockets
in multiple circuit courts, all proceedings were to be
encompass litigation categories as diverse as airplane
transferred to the court where proceedings were first
crashes [and other accidents]; mass torts, such as those
instituted. This practice sometimes led to a “race to the
involving asbestos, drugs and other products liability cases;
courthouse” as litigants sought to give their preferred court
data security breaches, patent validity and infringement;
of appeals the first opportunity to consider their claims.
antitrust price fixing; marketing and sales practices,
securities fraud; and employment practices.”
Following the 1988 amendment, multicircuit petitions for
review are no longer automatically consolidated in the court
of first filing. Instead, the statute provides that if petitions
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Multidistrict and Multicircuit Litigation: Coordinating Related Federal Cases
for review of a single agency order are filed in two or more
additional steps in that direction, arguing that a substantial
circuit courts within ten days after issuance of the order, the
percentage of MDL claims are meritless, and that better
MDL Panel “shall, by means of random selection, designate
procedures are needed to weed out unsupported claims
one court of appeals, from among the courts of appeals in
before settlement or trial.
which petitions for review have been filed.” MDL Panel
Rule 25.5 implements the statutory provision for random
Other commentators have examined how the practice of
selection through a lottery, directing the Clerk of the Panel
case transfers and consolidation under the MDL and
to “randomly select a circuit court of appeals from a drum
multicircuit petition statutes may affect the administration
containing [a single] entry for each circuit wherein a
of justice more generally. Some assert that the statutes may
constituent petition for review is pending.” Once
prompt excessive consolidation and far-reaching settlement
proceedings are consolidated in one circuit court, the statute
of claims. In their view, such settlements may affect the
authorizes the transferee court to transfer proceedings to
rights of future claimants, but the protections for absent
any other appeals court “[f]or the convenience of the parties
claimants in Federal Rule of Civil Procedure 23 (which sets
in the interest of justice.”
various procedural requirements for class actions) do not
generally apply to MDL proceedings unless the transferee
A recent high-profile example of a multicircuit petition for
court formally certifies a class action. In addition, some
review is the litigation surrounding the Coronavirus Disease
note that the rules governing appeals may create an
2019 (COVID-19) vaccine mandate for employers with 100
asymmetry for MDL plaintiffs and defendants. If a court
or more employees. On November 5, 2021, the
grants an MDL defendant’s motion to dismiss, the plaintiff
Occupational Safety and Health Administration published
is entitled to an immediate appeal; however, if the court
an emergency temporary standard requiring those
denies the motion, the denial usually is not immediately
employers to implement certain vaccination and testing
appealable. While this rule applies generally in federal civil
policies. Challengers of the policy filed petitions for review
litigation, some commentators contend that in the MDL
in multiple federal appeals courts. On November 16, 2021,
context it may impose particularly strong pressure on
the MDL Panel conducted a lottery and randomly selected
defendants to settle.
the U.S. Court of Appeals for the Sixth Circuit to consider
the cases in the first instance.
Along with class actions, MDL cases may also raise
broader concerns about litigation funding and fees. In some
Considerations for Congress
cases, third parties fund federal litigation, including MDL
The processes that Congress has established for MDL and
and class actions, in exchange for a portion of the plaintiffs’
multicircuit petitions for review are motivated primarily by
recovery. The Litigation Funding Transparency Act of
practical considerations such as the efficient administration
2021, S. 840, H.R. 2025 (117th Cong. 2021), would
and consistent decision of large volumes of related claims.
respond to that concern by requiring disclosure of any
Congress has sometimes made adjustments or exceptions to
entities with a right to payment contingent on the receipt of
those processes, tailoring how they apply to certain types of
monetary relief in any MDL or class action.
cases. For instance, Section 1407 provides that it does not
apply “to any action in which the United States is a
Beyond the statutes governing MDL and multicircuit
complainant arising under the antitrust laws.” Congress
petitions for review, Congress has other tools available to
amended Section 1407 in 1976 to allow the MDL Panel to
address concerns about related lawsuits proceeding in
“consolidate and transfer with or without the consent of the
multiple courts. One option is to channel certain types of
parties, for both pretrial purposes and for trial, any action
cases to a specific venue. For instance, multiple federal
brought under section 4C of the Clayton Act.” Section 2112
statutory provisions require petitions for review of certain
specifies that it does not apply to review of Tax Court
types of agency action to be brought in the U.S. Court of
decisions. Proposals from the 116th Congress, including the
Appeals for the District of Columbia Circuit. If all
SAFE TO WORK Act, S. 4317, H.R. 8832 (116th Cong.
challenges to a particular agency action are filed in the
2020), would have imposed specific procedures in MDL
same court, that court can determine whether to consolidate
involving certain legal claims related to COVID-19.
or otherwise coordinate related litigation.
Many commentators agree that the statutes governing MDL
Joanna R. Lampe, Legislative Attorney
and multicircuit petitions have generally advanced
Congress’s practical purposes, promoting efficiency for the
IF11976
parties and the courts. Some urge Congress to take

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Multidistrict and Multicircuit Litigation: Coordinating Related Federal Cases

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