Broad Authority and Quick Transfer; Normal Forum Rules Not Applicable
The MDL Panel’s authority is strikingly large and can drastically change the posture of an existing case—even one that has been pending for a considerable period. Transfers occur quickly, frequently, and sometimes with little opportunity for individual litigants to distinguish themselves (particularly when there are complex cases or a large number of cases). For instance, it is not uncommon for a party in a large, complex case to be awarded three minutes (or less) to orally argue a position. The MDL Panel has been known, on occasion, to transfer cases over the objections of even the majority of parties.
In making the transfer decision, the MDL Panel may transfer to “any” federal district court. Thus, normal considerations relating to choice of forum do not limit the MDL Panel, including (for example) personal jurisdiction, venue, and forum selection clauses.
Procedure, Deadlines, Briefs, and Tagalongs
The MDL Panel has issued its own set of procedural rules. The rules provide that within 20 days of the filing of a motion to transfer, all parties must file a response, and a failure to do so will be treated as acquiescence. There is a five-day time limit for a reply. Briefs are limited to 20 pages. The matter is then typically placed on the hearing docket, which occurs about once a month. Appeals of the MDL Panel’s decision are strictly limited and are only available under extraordinary writ through 28 U.S.C. § 1651 to the court of appeals having jurisdiction over the district in which the hearing of the MDL Panel occurred.
If an “MDL” has already been established, new matters may be transferred, with no action by the MDL Panel, with the filing of a “tagalong” notice. The clerk of the MDL Panel will make the transfer unless there is an objection within 15 days. An objector will then be given 15 days to file a brief or his or her objection is automatically deemed withdrawn.
Factors Considered by the MDL Panel
The MDL Panel considers three factors: (1) whether there are one or more common questions of fact; (2) whether the transfer is for the convenience of all of the parties involved; and (3) whether the transfer will promote judicial efficiency, economy, and fairness.
Common Questions of Fact
In order for a motion to transfer to prevail, the MDL panel must find the common questions of fact to be “sufficient.” The MDL panel has a great deal of discretion. Cases do not need to have an identity or parties of facts.
Number Questions and Complexity
Some decisions of the MDL Panel appear to weigh the common issues and individual issues to determine which predominate. The more complex the common questions, the more likely the transfer. The degree of complexity of the common questions becomes particularly important if the transfer request involves a small number of cases. On occasion, the MDL Panel appears to have considered whether common questions of law exist, but more often the MDL Panel has stuck to the statutory language requiring analysis of only common questions of “fact.”
Convenience of Parties and Witnesses
Although convenience of the parties is often given the least amount of weight of the three statutory requirements, the MDL Panel must look to see whether transfer of all of the actions will be for the convenience of all of the parties. If the other two requirements are met, then the court will likely not reject a motion to transfer under section 1407 simply because it is inconvenient for some of the parties.
The most important factor the MDL Panel weighs is whether the transfer will promote the “just and efficient conduct of such actions.” Factors that are often cited by the MDL Panel as reasons why transfer will lead to efficiency are to avoid duplication of discovery, to prevent inconsistent pretrial rulings, and to conserve both human and financial resources of the parties and the judiciary. Examples of types of actions that have satisfied this test in the past are antitrust, securities, mass tort (particularly a single incident), patent, copyright, trademark, and products liability actions.
“[T]hose advocating transfer bear a heavy burden of persuasion when there are only a few actions, particularly those involving the same parties and counsel” Manual for Complex Litigation (Fourth) § 20.131.
The panel has sometimes denied motions to transfer where there were alternative means available for coordination of discovery and avoidance of duplication. However, the mere potential for additional actions is insufficient to justify MDL coordination.
Where and to Whom Is a Case Transferred
The decision on which court or judge will handle the consolidated case can often drive the decision to request consolidation and often occupies a sizable portion of the briefs.
The MDL Panel will usually select the most convenient forum for most of the parties and witnesses involved. Therefore, the MDL Panel will often send cases to locations near the defendant’s headquarters or near the main concentration of plaintiffs or witnesses.
The “availability of an experienced and capable judge familiar with the litigation is one of the more important factors in selecting a transferee forum.” The MDL Panel often transfers cases to a judge who is already involved in one of the consolidated cases; however, it has transferred cases to experienced judges who had no currently pending cases. It is generally understood that the MDL Panel sometimes discusses the transfers with the judges involved and with the chief judges of the involved districts in the panel’s effort to find the best forum and the right judge and will not usually transfer cases to judges who do not want them.
Section 1407(a) states that “[e]ach action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred.” The Supreme Court made clear that this provision is mandatory. Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998).
The MDL Panel does have the authority to remand any individual action, or separable claim, under section 1407(a).
The transfer of multidistrict civil actions to a single transferee district for pretrial proceedings not only saves the judiciary financial resources, it also allows the parties to these actions to have their claims adjudicated fairly and more efficiently. However, parties should react quickly when a transfer motion is made and should carefully examine all of the strategy implications, as well as all of the arguments that may be made to the MDL Panel.