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March 18, 2022 Practice Points

Successfully Positioning Litigation for an MDL

A few key ideas to help you get as many cases into federal court as possible, secure favorable judicial assignments, and manage the progress of the cases.

By Katie Insogna

Maybe your client just recalled a product. Or received some negative publicity. Or learned of a new regulatory approach. Whatever the circumstance, when significant tort litigation is imminent, it is important to think about the potential for a coordinated proceeding. A multi-district litigation (MDL) is an efficient way to manage federal court litigation that will involve common facts or underlying issues.

MDLs aren’t formed on day one of litigation, however. If your goal is to petition the Judicial Panel on Multidistrict Litigation (JPML) for formation of an MDL, there are several key points to consider. The fundamental goals are to get as many cases into federal court as possible, secure favorable judicial assignments, and manage the progress of the cases.

Getting into Federal Court

The JPML tends to look more favorably on coordination petitions where there are a significant number of cases in federal court. If plaintiffs file in federal court, this is an easy first step. If not, however, think about removing cases where possible to federal court.

Typically, mass tort cases find their way into federal court on diversity grounds. If there is complete diversity, no forum defendant, and the sufficient amount-in-controversy, any defendant can affect a standard removal.

If you have complete diversity and a sufficient amount-in-controversy, but also a forum defendant (meaning, the plaintiff sued a defendant in that defendant’s home state), “snap” removal can be accomplished only if completed before the in-state defendant is served. Time is of the essence, so move quicky to get the consent of any served defendant and file your removal. Note, some jurisdictions are friendlier to snap removals than others, but often it is worth a try. If you have a state court case in a snap-unfriendly jurisdiction, you may consider snap removing future cases once an MDL has been formed because you can remove, immediately tag it for transfer into the MDL, and seek a determination on any future remand motion by the MDL judge.

Finally, plaintiffs may name specific defendants solely to destroy diversity. If that happens, consider asserting fraudulent joinder arguments in connection with removal. Alternatively, you can wait to remove until after that diversity-destroying defendant has been dismissed; but remember there is a one-year removal bar and relying on that deadline can take the process out of your hands. Snap removal and fraudulent joinder arguments are your friend, if you can make them in good faith.

Judicial Assignments

Once you have cases in federal court, there may be opportunities for preliminary coordination that set you up for future success with the JPML. For example, you may want (or be required) to relate cases within a federal district. Most often those cases will be transferred to the judge with the first-filed case, but districts have different rules on related cases and who decides the question of relatedness. It is powerful evidence in your pocket if you can demonstrate to the JPML that you have already advanced a case or (even better) a group of cases, before a particular judge to whom you would like an MDL to be assigned. So, identify that judge early and try to push for early proceedings to serve as the tip of your spear in presenting to the JPML.

Managing the Progress of the Cases

Once you have the cases in federal court and judicial assignments set, you have a number of options.

First, you can press forward and advance the litigation. This may be the right decision depending on the jurisdiction, judge, or specific facts of the case. Maybe you want to get a ruling on a threshold issue quickly. (However, sometimes litigants have little say in the pace of the litigation.) Advancing the cases may be the right decision if you want to stake out a specific jurisdiction for your forthcoming JPML petition, as noted above. Be wary, however, that the JPML considers the posture of cases, so cases that get too separated may impact an MDL petition.

In many situations, however, the preference is to slow down the litigation to minimize activity before cases are formally coordinated. To do so, consider filing a motion to stay pending resolution of the JPML petition. Most courts are receptive to such a request.

Ultimately, the success of your coordinated proceeding will be heavily influenced by forum, arbiter, early decisions, and pacing. So be alert to each of these sensitive steps and coordinate your activities with any co-defendants at each step of the process.

Katie Insogna is a partner in DLA Piper’s Boston, Massachusetts, office.

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