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Civil lawsuits in federal courts--especially class actions and multidistrict litigation (MDL)--can be messy and complicated, calling for pragmatic interventions that lie beyond what is explicitly addressed by the existing rules. And flexibility is part of the genius of the Federal Rules of Civil Procedure. On the other hand, unbounded discretion and innovation in procedure can lead to illegitimate exercises of power, bias, democratic nonaccountability, and other serious harms. But the choice is not between providing individual courts with nearly limitless authority to experiment with procedure or having a set of rigid rules. Instead, there is a third path: district judges should look to ethics rules to define the boundaries of their discretion, especially when innovating with civil procedure. The case for treating professional-conduct rules as guardrails to unbounded procedure begins with a recognition that federal district courts have almost universally adopted ethics codes modeled after the American Bar Association Model Rules of Professional Conduct through their local rulemaking. This comes with an important doctrinal payoff: judges cannot ignore these ethics rules when applicable. Moreover, even if the district courts had not already committed to them, professional-conduct rules have many normative advantages over unbounded procedure and, thus, would serve as useful guides. The supervision of attorneys' fees in multidistrict litigation provides a helpful case study. MDLs have become the predominant battleground for important procedural disputes and are a paradigmatic example of unbounded procedure. Within MDLs, common-benefit fees are extremely controversial and legally tenuous. Several professional-conduct rules, however, directly address the substantive issues and offer established frameworks for regulating lawyers' compensation to ensure its reasonableness and fairness for everybody involved. Beyond this specific intervention, the key contributions of this Article are (1) putting civil procedure and professional responsibility into greater dialogue and (2) illustrating how professional-conduct rules are well positioned to fill many important gaps or otherwise guide judges' experiments. [ABSTRACT FROM AUTHOR]

The article focuses on the examination of public nuisance claimants in e-cigarette litigation, particularly in the context of youth e-cigarette use and related health crises. Topics include the different types of plaintiffs involved in these lawsuits, comparisons to past public nuisance litigations such as tobacco and opioids, and the procedural aspects of public versus private claims in multi-district litigation settings.

Mass tort multidistrict litigations (MDLs) involving thousands of claims present the judge with unique management issues. The MDL statute, in its scant two pages enacted in 1968, offers no guidance for the proper handling of these issues, and the Federal Rules of Civil Procedure speak to these issues only very generally through Rules 16 and 42. Thus, MDL judges have often invoked their "inherent powers as authority when they take certain actions with significant implications for the parties and their attorneys. Not surprisingly, several of these actions and their underlying justifications have been controversial: (a) appointing lead attorneys; (b) ordering that these attorneys be compensated through a "common benefit" assessment on the recoveries of certain clients in the litigation; (c) reducing the total contractual fees that plaintiffs agree to pay their individually retained counsel; and (d) reviewing private settlement agreements. Professors Robert Pushaw and Charles Silver have recently offered the most thorough analysis to date of judges' assertions of their inherent powers when managing MDLs and have concluded that the courts' inherent powers do not properly extend to any of these four actions. In this Article, I critically examine the arguments put forward by Pushaw and Silver. Offering my own analysis within theirinherent powers framework, I agree with Pushaw and Silver's conclusion that the inherent powers of the federal courts do not properly extend to reducing the total contractual fees that plaintijfs agree to pay their individually retained counsel or to reviewing private settlement agreements. However, I find unpersuasive their analysis regarding the appointment and compensation of MDL leadership attorneys. I conclude that MDL courts do have authority to appoint lead attorneys and to order that these attorneys be compensated through a common benefit assessment on the recoveries of certain clients in the litigation. [ABSTRACT FROM AUTHOR]

The article focuses on the challenges of overconsolidation in multidistrict litigation (MDL) under 28 U.S.C. section 1407, where a few judges handle a vast number of cases, leading to accuracy issues in decision-making. It argues for a "divisional approach" to assign MDLs to multiple district courts and circuits, aiming to balance efficiency and accuracy by distributing decision-making across a broader judicial spectrum.

The article focuses on the historical tension and evolving dynamics between fixed procedural rules and discretionary judicial practices in American civil litigation. It explores how this tension has developed over time, examining the impact of managerial approaches, the decline of trials, and the influence of multidistrict litigation (MDL) on the formal structure of party-driven discovery.

The article examines the constitutionality of the U.S. federal court's independent exercise of inherent powers (IP) in multidistrict litigations (MDL) despite the lack of authorization by Congress. Also cited are the claim by the Supreme Court that the Constitution allows the use of IP in the exercise of judicial power under Article III, and the need to ensure the parties' due process rights when exercising IPs.

The article introduces the topic of Multidistrict Litigation (MDL) by using the example of the 3M Combat Arms Earplug lawsuit. It highlights the problems stemming from applying traditional procedural processes to MDL and proposes solutions, such as nationwide MDL personal jurisdiction and increased appellate review opportunities, to address these issues. It further aims to adapt MDL to the modern legal landscape and rectify past procedural shortcomings.

The article focuses on the role of managerial judges in modern multidistrict litigation (MDL). It discusses how federal judges have increasingly taken on a managerial role in the pretrial and post-adjudication phases of litigation. It explores how MDL allows for the temporary transfer of related cases from across the country to a single federal judge for coordinated pretrial proceedings.

The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.

In multidistrict litigation, as elsewhere, personnel is policy. As MDL has become a major site for aggregate litigation, commentators have raised concerns that large-scale products liability cases are unduly influenced by a small cadre of elite lawyers whom courts repeatedly appointed to serve in the most powerful MDL leadership roles. Repeated appointments of these "repeat players," commentators worry, facilitate self-dealing, suppress dissent, and aggravate conflicts of interest seen in other areas of aggregate litigation. These concerns about MDL overlap with broader concerns across the bench and bar about the degree to which white people and men dominate important leadership posts, to the exclusion of younger attorneys, women, LGBTQ+ people, and attorneys of color. In response to these concerns, prominent authorities urged MDL courts to adopt a number of reforms. They recommended that judges appoint leaders through open, competitive processes; create additional leadership posts and committees; and appoint leaders for limited terms in order to create more opportunities for new attorneys to participate in leadership. But, outside of a handful of highly publicized cases, we have little empirical evidence of whether MDL leadership appointments changed in the ways that reformers proposed. This Article-part of a larger, ongoing study of the nature and functions of MDL leaders and the MDL model of aggregate litigation begins to fill that gap. Drawing on a dataset of thousands of filings and orders that were entered in sixty-eight products liability MDLs pending in June 2019, we report data on the size, composition, and appointment process for MDL leadership slates, and changes in the makeup of leadership slates in the eighteen-year period our dataset covers. Our data tentatively suggest that reformers' calls for larger, complex leadership slates and frequent competitive leadership appointment processes went unheeded. Examining trends in the size and structure of MDL leadership slates in products liability MDLs, we find little evidence that courts implemented the structural changes that the reformers suggested. Yet, while leadership appointment practices and the complexity of MDL leadership slates do not appear to have changed during the period we studied, we find intriguing changes in who is being appointed to leadership posts. Slightly less than a quarter of leadership appointments in our data went to female attorneys, suggestive of only a trivial increase in women's representation on leadership slates compared to earlier studies. But the majority of leadership appointments also did not go to super-elite repeat player attorneys. And, comparing our findings with earlier work that examined MDLs pending in 2013, we find substantial movement in the attorneys and firms whom MDL courts appointed most frequently to leadership posts. These findings complicate received wisdom about MDL leadership posts. While we document considerable continuity in who is being appointed to MDL leadership posts and how, our data are suggestive of a deep bench of potential future MDL leaders for judges to choose from, as well as the opportunity for even further change in the future. [ABSTRACT FROM AUTHOR]

Multidistrict litigation (MDL) has long been dogged by worries about illegitimate or even fraudulent claims. These claims, and public concern about them, damage the system; they erode confidence in judicial processes, increase costs, and contribute to rising caseloads. But while many have noted the problem, and some have even sought to address it, so far, judges' arsenals have been limited. Some judicial efforts (such as Lone Pine orders) amount to overkill: The entry of a Lone Pine order threatens to chill the vindication of important rights, not merely the initiation of bogus claims. Other efforts, such as plaintiff fact sheets and census orders, suffer from the opposite problem: Because they often lack teeth, these orders can encourage a game of judicial whack-a-mole, as some nonmeritorious claims may be rooted out even as more such claims are ushered in. Against that backdrop, we offer an innovative and practical solution to address this problem head-on. In particular, we explain how MDL transferee judges can harness common benefit fees to induce plaintiffs' lawyers to improve their screening practices, encouraging lawyers to cull invalid claims before they are filed. By assessing common benefit fees on a sliding scale, judges can financially reward those lawyers who meaningfully vet would-be clients and penalize those who don't. Over time, through tailored and targeted efforts, judges can ensure that attorneys are properly incentivized to review the factual basis of suits while also keeping courts open to claims of uncertain-but-possible merit. [ABSTRACT FROM AUTHOR]

This Article analyzes the so-called Field of Dreams problem in multidistrict litigation (MDL). Once an MDL is up and running, the story goes, plaintiffs' lawyers flood the proceeding with meritless claims in the hopes that they will be swept into a global settlement before anyone ever looks closely at them. Critics have called this the most pressing problem with MDLs today and lobbied both Congress and the Federal Rules Committee for MDL-specific rules to address it. This Article analyzes the empirical and normative dimensions of the MDL Field of Dreams. While the empirical evidence behind existing complaints about meritless claims in MDL is exceedingly thin, the economic intuition behind the phenomenon is quite plausible: if you reduce the cost of litigation, as MDL does, more claims with lower expected values will enter the system. Assuming, then, that some significant portion of those new claims are meritless, this Article asks, what, exactly, is wrong with that? It examines several potential problems an influx of meritless claims could create from both the defendants' and plaintiffs' perspectives. While some of these concerns are serious, others are overblown. And the types of claims that garner the most criticism-those filed by people who have not been exposed or injured-are actually the least problematic. Many of the real problems that the Field of Dreams creates can be addressed through private ordering and case management techniques that are within the existing powers of the MDL judge and do not require a radical overhaul of MDL procedures. [ABSTRACT FROM AUTHOR]

As Multidistrict Litigation (MDL) has become an increasingly important part of the legal landscape, it has become increasingly controversial. To some degree this is both predictable and appropriate; MDL is not perfect, and scholars and policymakers should always be on the lookout for ways to improve it. Unfortunately, some of the criticism of MDL is based on "myths" that are either incorrect or not based on reliable evidence, and these misconceptions are dangerously close to becoming conventional wisdom or, worse, the basis for policy changes. These myths are especially troublesome when they are seized upon by advocates who deploy them in support of "reforms" that run the risk of restricting the access to court and compensation that MDL uniquely provides. In this Article, we hope to bring some balance to the narrative by both debunking some of these misconceptions and placing them in context. While MDL may not be flawless or achieve ideal results in every case, it is also not the threat to plaintiffs' due process rights or general welfare that some claim it to be. To the contrary, MDL has achieved a remarkable degree of success to the benefit of both plaintiffs and defendants. And those who intend to tinker with it should take great care not to rely on a negative narrative that is overwrought, and in some cases, simply wrong. [ABSTRACT FROM AUTHOR]

When courts consider a choice of class or lead counsel in multidistrict litigation (“MDL”) or class action suits, they often follow the idea of a neutral partisan model. Such a model idealizes lawyer conduct as a blank conduit for client interests. In theory, lawyers should be able to bring their legal expertise absent any personal experiences, individualized identity, and morality outside of practice. But the reality is that neither lawyers nor their clients can fully divorce their identities or moral viewpoints from the legal system. This Essay argues that an identity-blind choice of class or lead counsel, grounded in a version of lawyering rooted in neutral partisanship, is indefensible in the context of complex litigation. Complex litigation systems ask for a great deal of blind trust from clients because the dilution of the lawyer-client relationship in this type of litigation is severe. In MDL or class action practice, lawyers often must wear two hats—their own and that of the traditional client. The shift of power and control away from the individual client to the lawyer means that oversight falls almost exclusively to the court, various state bar associations, and individual lawyers through self-regulation. This warrants a practice model that accounts for identity and viewpoint alignment in selection. In order to protect clients’ interests—where the vast majority of the class is represented in absentia—it is essential that courts consider the identities of lawyers and their specific views when certifying adequacy of counsel and selecting lead counsel in MDLs. As such, courts should cease the practice of identity-blind choice of class or lead counsel and instead consider the whole person of the lawyer when evaluating petitions to lead such cases. [ABSTRACT FROM AUTHOR]

On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster's certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism. This Article focuses on the development and fate of the negotiation class and considers the lessons to be gleaned from its attempted use in the Opiate MDL. The short unhappy life of the negotiation class raises questions whether its failure was a consequence of implementation or design. This is an important question because if the failure was the result of problematic implementation in the context of idiosyncratic circumstances, then the negotiation class model may live to see another day. On the other hand, if the failure was the consequence of deficient design and judicial overreaching, then the negotiation class may be consigned to the museum of good intentions gone awry. The novel proposal for a negotiation class did not come out of nowhere but was another chapter in a five-decade struggle between aggregationist attorneys and judges seeking creative solutions to mass litigation, pitted against jurists repudiating adventurous use of the class action rule. This Article provides the definitive narration of the historical evolution of expanding novel uses of Rule 23, anchored in the mass tort litigation crisis that emerged on federal court dockets in the late 1970s. The article illustrates how Judge Polster's negotiation class was the logical culmination of decades of judicial and academic experimentation with innovative procedural means to accomplish the fair and expeditious resolution of aggregate litigation. It traces the role of the American Law Institute in advancing pro-aggregation initiatives, laying the groundwork for the Opiate negotiation class proposal. The discussion elucidates how the debate over the settlement class concept in the 1990s presaged the same debate over the negotiation class three decades later, and how criticisms of the ALI aggregate litigation proposals resurfaced in opposition to the Opiate negotiation class. The negotiation class model promised to ameliorate numerous problems inherent in heterogenous group litigation by infusing class litigation with collective action theories and democratic participatory features. The centerpiece of the negotiation class was to bring class claimants to the table and provide them with meaningful voice through group design of a settlement allocation metric, coupled with a franchise vote to approve or disapprove any offered settlement. Its other defining feature was to provide defendants at early juncture in proceedings with an accurate assessment of the class size as an incentive to enable defendants to secure global peace. The attempted implementation of the negotiation class in the Opiate litigation revealed numerous fault lines in the proposal. The negotiation class as applied failed to provide many claimants with comprehensible information regarding the devised allocation formula. Some claimants believed that it failed to ameliorate the kinds of intraclass conflicts it was designed to remedy. State attorneys general raised the specter of interference with state prerogatives. Furthermore, rather than empowering class members at the negotiation table, the development of the Opiate litigation defaulted to a traditional model of attorney empowerment and dominance in the resolution of aggregate proceedings. The promise of collective action and democratization proved illusory. The deployment of the negotiation class concept in the Opiate MDL also entailed problematic questions concerning the role of judicial surrogates in aggregate litigation and the increasing power and influence that courts delegate to non-party actors. Judge Polster's embrace of the negotiation class in the Opiate litigation placed the judge, his court-appointed surrogates, and the array of plaintiff and defense attorneys in tension with the Supreme Court admonition to federal judges, at the end of the twentieth century, to cease adventurous use of the class action rule. It may well be that the Opiate MDL was a poor vehicle to test the negotiation class proposal and so the problem was one of implementation, rather than design. The failure of the Opiate negotiation class leaves open the question of whether those who crafted it could have done a better job to avoid appellate reversal. Nonetheless, if the array of special masters, expert academic professors, a seasoned senior judge, and highly experienced complex litigation attorneys were unable to successfully shepherd the first negotiation class, this experience raises doubts about its prospects. It should be remembered that the settlement class of the 1990s was a novel procedure in its day, yet it subsequently became a stock device in the class action toolbox. The history of the settlement class may foreshadow better days for the negotiation class or inspire further rulemaking by the federal judiciary to legitimate the negotiation class model. [ABSTRACT FROM AUTHOR]

By the terms of its own statute and the limits of its constitutional authority, multidistrict litigation ("MDL") is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case-specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL's kin, the class action. But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of MDL are just numbers on a spreadsheet, not clients with their own agency. In conducting this first-ever study of MDL plaintiffs, we explore their experience. By moving their cases far from home, courts and attorneys seem to say "trust us." But knowledge is essential to trust, and study participants knew little about the status of their case, their judge, or even the identity of their attorney. Three things were clear to participants. First, they were aware of how little they recovered. Second, from their perspective, justice had not been done. Only 1.8 percent felt their lawsuit accomplished what they hoped it would. And finally, participants wanted to be informed and involved. To salvage MDLs, courts must empower plaintiffs through technology and transparency. Technology can open access to courts, bring plaintiffs into the process, and give them a voice without sacrificing MDL's efficiencies. Creating online forums can cut through the layers of lawyers and allow plaintiffs to communicate directly with lead attorneys and each other. Armed with information and opportunity, plaintiffs can also hold attorneys accountable by evaluating them. Placing leadership performance reviews on court dockets and using them as a factor in awarding leaders' common-benefit fees can give them weight while bringing organizational theory to bear on future leadership selections. Finally, disciplining and sanctioning individual lawyers for unethical conduct can disrupt neglect and improve the public's faith in the system. [ABSTRACT FROM AUTHOR]

The article focuses on fights about fundamental fairness as skirmishes over choice of law and persuaded courts to refuse to grant relief for violations of civil rights. It mentions multidistrict litigation, official immunity for government misconduct, patent law, and administrative law and begins to refute the wisdom of the myth's doctrinal manifestations. It also mentions grounded in conflict-of laws theory, and the other grounded in the purpose of federal law.

The article traces the history of opioid litigation and considers whether there is a better solution to the opioid problem. Topics include the chemical nature of opioids, the marketing practices of Purdue Pharma and other pharmaceutical companies, unsuccessful personal injury cases filed against Purdue by private individuals before 2014, and the three litigation pathways, namely lawsuits by individual government entities, multidistrict litigation and bankruptcy proceedings.

When the Judicial Panel on Multidistrict Litigation (JPML) transfers pools of thousands of similar cases pending in different districts to a single district court pursuant to 28 U.S.C. § 1407, the transferee judge needs a speedy and effective means of resolving these multidistrict litigations, or MDLs. Some MDLs, especially those involving products liability claims, are enormous, consisting of tens of thousands or even hundreds of thousands of claims. The MDL statute, however, limits the transferee court's power to pretrial proceedings. Judges managing MDLs will promote settlement by fast-tracking several cases for trial, either in their own district (if they have jurisdiction) or by transferring these cases back to their district of origin. These fast-tracked cases are known as bellwether trials. MDL procedures are governed by the MDL statute, the Federal Rules of Civil Procedure, and case law. Judges also have a great deal of discretion in structuring the bellwether trial procedure, and their approaches vary. Successful bellwether trial procedures are often copied by other MDL judges and become a form of "soft" precedent. There are two dominant methods for selecting bellwether cases. The first method is selection by counsel, in which lawyers for the plaintiffs' management committee and the defendant each pick the cases the judge will try. The second method is random sampling, in which cases are randomly selected for trial. This Note presents an empirical review of judicial practices and finds that when judges have smaller case pools, they tend to allow counsel to select bellwether cases. When the case pool exceeds 10,000, judges will use modified random sampling to select bellwether cases. Evaluating the two methods, this Note argues that random sampling is the superior method and should be applied uniformly. [ABSTRACT FROM AUTHOR]

Multidistrict litigation has become an increasingly important tool for aggregating claims. Whether an MDL is created in the first place is decided by a seven-member panel of federal judges, the Judicial Panel on Multidistrict Litigation (“JPML”). But the JPML decides not only whether to create an MDL; it decides also where and before whom to centralize MDLs for coordinated or consolidated pretrial proceedings. In deciding where and to whom to transfer cases arising under federal law, the JPML can consider the choice-of-law rule applicable in the transferee court. Under the dominant rule among federal courts, the MDL court applies its own law. As a practical matter, this means that the JPML has the power to steer an MDL to a particular court and to a particular judge, mindful of the law that will apply and how that law will affect the outcome of the case. Such a practice is not only contrary to a well-established norm against “matching” judges and cases. It also endows the JPML with an outsized power over these suits. This Article uncovers this largely ignored and considerable power of the JPML that enables it to achieve substantive ends through the nation’s MDL dockets. It evaluates two alternative choice-of-law rules. But, more importantly, it proposes that federal judges be randomly assigned to preside over MDLs—a solution that is more likely to be effective. [ABSTRACT FROM AUTHOR]

This Essay reviews the highly successful Fordham Law Review symposium entitled Mass Torts Evolve: The Intersection of Aggregate Litigation and Bankruptcy, held in 2022. The symposium brought together judges, scholars, and practitioners who work on multidistrict litigation (MDL), bankruptcy, or both. The symposium was successful because it brought these groups into conversation at a time when high-profile mass tort defendants are increasingly turning to bankruptcy to escape MDL, while others involved in the MDL process seek to keep them in. The symposium was also successful--and distressing, in our view--because it highlighted disturbing trends in complex litigation. This Essay makes two principal observations. First, we document the different ways that MDL and bankruptcy players view their institutions. Even if they share similar goals of achieving lasting resolutions to mass tort disputes, they come from different starting points and stress different values. Civil litigators, including those who work in MDLs, hue to traditional notions of victims, liability, and adversarial adjudication. Bankruptcy lawyers, meanwhile, focus more on creditors, preserving value, and moving on. Second, we demonstrate that criticisms of MDL's treatment of individual plaintiffs--both in the symposium and outside it--are being leveraged by defense-side interests seeking to promote bankruptcy as a means of resolving mass torts. Taken together, these two observations reveal a dissonance between the seemingly pro-plaintiff criticisms of MDL and the seemingly pro-defendant use of those criticisms to denigrate MDL in favor of bankruptcy. [ABSTRACT FROM AUTHOR]

This article analyzes the multidistrict litigation of North American law as a way of providing an adequate treatment to causes that have similar issues of fact and that, therefore, admit joint evidential instruction. Based on the consideration that each case is part of a set of cases that integrates the broad spectrum of action of the Brazilian Judiciary, the MDL is positioned as an inspiration for the management of evidence with a focus on efficiency with quality, under the pan procedural proportionality. For this purpose, the tool is presented as a technique for collecting evidence, in a context of management of judicial cases.

Multidistrict litigation (MDL) allows the consolidation of claims in a single forum. Usually, these suits share common facts but involve individual liability questions that prevent class-action certification. Under 28 U.S.C. § 1407, the Judicial Panel on Multidistrict Litigation (JPML) may transfer and consolidate all pending actions before its chosen judge. In turn, the MDL judge coordinates "pretrial proceedings" and is instructed to remand the consolidated claims at their conclusion. MDL is a fundamental part of the federal docket. When prisoner and social-security cases are removed, MDL constitutes more than 50% of actions pending in U.S. District Courts. But little procedural law constrains MDL. Many scholars critique MDL. Most often, skeptics argue that MDL reduces a plaintiff's control over her claim. Some suggest that MDL undermines procedural-justice protections and prioritizes compensation over individual dignity. However, practitioners generally approve of MDL. Defendants complete discovery and motion practice in a single forum, plaintiffs enjoy economies of scale that balance the scales against well-financed defendants, and courts avoid repeatedly resolving the same issue in suits across the country. Academic criticism, then, often fails to take seriously the practical merits of nonclass aggregate litigation. While scholars critique MDL for denying plaintiff autonomy and shortchanging procedural justice, less attention has been devoted to MDL procedural reform. A principled approach, attentive to MDL as practiced, is needed. This Note provides a starting point. It proposes an analytical framework that is party-neutral and responsive to MDL's purpose in practice. It uses this new approach to consider an important threshold question: whether MDL practice would tend to benefit more from procedure in the form of rules or in the form of standards. It then evaluates two proposals for reformâ€"plaintiff fact sheets and interlocutory reviewâ€"to demonstrate a more appropriate approach to MDL procedure. At base, I call for a more robust and substance-sensitive dialogue on procedural reform in MDL. [ABSTRACT FROM AUTHOR]

Foreign regulators exert a powerful and deeply underestimated influence on American complex litigation. From the French Ministry of Health and the United Kingdom's National Health Services, to the Japanese Fair Trade Commission and the European Commission, foreign agencies have participated in some of the most important cases in the last two decades. The intersections between American litigation and foreign regulation range from plaintiff discovery requests of documents produced by or to foreign regulators, to coattail class actions against multinationals triggered by enforcement penalties abroad, all the way to foreign agency letters submitted to U.S. courts expressing an interest in a case. Indeed, dozens upon dozens of the most important multidistrict cases in the country--covering over 100,000 claims--have been influenced by foreign regulatory documents or enforcement actions. In this manner, litigation is importing foreign regulatory zeal to the United States. Yet few American legal actors know that foreign regulation affects domestic cases and even judges are unsure whether this practice is appropriate. This Article presents a systematic study of the new relationship between foreign regulation and American litigation. The cross-border spread of litigation ideas sits at the center of broader debates about complex litigation, the regulatory role of multidistrict litigation, the recent trend of litigation isolationism, and the expanding role of discovery. The Article argues that litigation can import and domesticate foreign regulations, allowing private litigants to audit the work of captured domestic agencies. For instance, litigators can measure the work of the FDA against health regulators in France, or the work of the FTC against regulators in Germany. Litigation can also push U.S. law to match foreign regulation, promoting a rough harmonization across borders, coherence, and convergence. While the litigation-led use of foreign regulation promises a wealth of benefits for U.S. law, it has not been sufficiently recognized, nudged forward, or appreciated. The Article thus seeks to provide a solid theoretical footing for the incorporation of foreign regulations and argues that an understanding of litigation-led globalization clarifies scholarly debates in a variety of literatures. After this analysis, the Article also argues that courts should invite American regulators to help them decide whether to welcome or reject this foreign influence. [ABSTRACT FROM AUTHOR]

We are in an age of massive multidistrict litigation ("MDLs"). MDLs contain thousands, sometimes tens-of-thousands of individual cases, involving the laws of all states and territories, and are handled by a single judge. Around half of all federal court cases are consolidated within an MDL. These MDL-assigned judges necessarily have the power to create new rules of law and practice through the sheer number of decisions and opinions required to handle pretrial matters. These judges are also adopting ad hoc practices like "direct filing" to ease their administrative burdens in the initiation of cases within a single MDL. The combination of these two things (the number of decisions required in MDLs and the adoption of direct filing) has led to a new phenomenon: judicial disregard for the "home court" designation of direct-file plaintiffs. Over the past several years, dozens of decisions parroting language from a handful of decisions, which were written primarily by one or two judges, have created a new rule of jurisdiction: Although plaintiffs who do not directly file in MDLs can file in any appropriate court, await transfer to the MDL court for all pretrial matters, and be remanded back to their original chosen jurisdiction for trial, a directfile plaintiff will only be remanded "back" to the state where the injury was sustained (typically defined as the place of implantation in the massive medical products MDLs). This rule applies regardless of whether the plaintiffs utilizing direct filing would have filed in that state of implantation originally but for the administrative convenience of direct filing. This is a new trend in MDLs that turns a "convenient" administrative short-cut into a practice that overrides a plaintiff's choice of forum, potentially impacting substantive outcomes. Attorneys that file in MDLs and desire to protect their home court of choice should forego direct filing and instead file in their chosen court, then move or wait for transfer into the MDL. [ABSTRACT FROM AUTHOR]

The article focuses on motions in the shadow of multidistrict litigation and reintroduces the Opioid outcome and describes the mechanisms producing it by summarizing district courts' varied approaches to resolving competing motions to remand.

Federal courts routinely apply state law. In diversity cases, federal courts apply the state law that the forum state would apply--the so-called Klaxon rule. Outside of diversity, the vitality of Klaxon is far less clear. Federal courts have departed from Klaxon when applying state law in cases arising under bankruptcy, admiralty, the Foreign Sovereign Immunities Act, and more. Scholars have called for courts to abandon Klaxon in cases arising under the Class Action Fairness Act (CAFA) or consolidated as multidistrict litigation (MDL). These departures from Klaxon might track off hand references to "diversity" in Klaxon and other Erie cases, but they are inconsistent with jurisdictional and institutional policies of Erie and its progeny. The policies of reducing jurisdictional manipulation and the resulting inequities are relevant no matter the basis of federal jurisdiction. And the policies of respecting state interests and constraining federal judicial lawmaking point to state choice-of-law rules whenever the court has decided to apply state law. Taken together, these policies call for the extension of Klaxon to any case in which state law applies in federal court--and perhaps to other cases where state law plays a role in federal law. Much like Erie itself, these policy concerns are particularly important given the sociolegal context. In Erie, it was the manipulation of diversity jurisdiction that allowed corporate defendants to obtain preferable treatment. Today, it is bankruptcy, CAFA, and MDL that might create those opportunities. Klaxon is the only response consistent with the policies of Erie, the Rules of Decision Act, and the federal jurisdictional statutes. Without it, the accident of federal jurisdiction will unjustifiably alter the state law to be applied. [ABSTRACT FROM AUTHOR]

In all state and federal jurisdictions in the United States, joinder allows prosecutors to join multiple offenses against a criminal defendant. Joinder pervades the American criminal justice system, and some jurisdictions see joinder in more than half of their cases. Most states and the federal courts use a liberal joinder system where courts may join offenses regardless of their severity or punishment. These systems derive from judicial efficiency arguments, seeking to avoid unnecessary trials and striving to conserve time, money, and other resources. In a liberal joinder regime, the court may force a defendant to prepare for a trial in which she must simultaneously defend against a misdemeanor offense, like possession of marijuana, and a capital felony offense with a potential death sentence--even though the two charges may require completely different defense strategies. Jurisdictions should no longer broadly protect the joinder of all types of offenses in the name of judicial efficiency or juridical discretion. Instead, jurisdictions should categorically protect defendants charged with capital offenses from the potentially prejudicial nature of joinder, as Louisiana has for nearly a century. Born from the state's unique judicial history, Louisiana's joinder regime restricts joinder to those offenses which are triable by the same "mode of trial," a phrase that has undergone statutory interpretation, constitutional examination, and judicial scrutiny. Louisiana offers its criminal defendants a structural, procedural protection by prohibiting the joinder of capital offenses with noncapital offenses. Although other scholars have published articles and studies criticizing joinder regimes, pointing out the ways in which offenses' joinder may prejudice defendants, or presenting data to show prejudice's existence in practice, none have yet suggested--as this Article does--that jurisdictions revise their joinder regimes to prohibit the joinder of capital and noncapital offenses. If jurisdictions revised their joinder schemes in this way, they could maintain liberal joinder regimes for the most common criminal cases, where joinder is most efficient, without continuing to hinder those defendants who face the most serious consequences and the highest stakes during their trials. This Article first discusses the history and current status of joinder in most jurisdictions, followed by the history and current status of joinder in Louisiana. It then explains capital-offense joinder in Louisiana and how it differs from other jurisdictions in the United States. The Article further analyzes the arguments for liberal joinder and critiques them by presenting research in the field, practical considerations, and historical arguments. The Article concludes by urging other jurisdictions, particularly those with capital sentencing capabilities or capital offense punishments, to amend their joinder provisions to prevent the joinder of capital offenses with noncapital offenses. If jurisdictions revised their joinder schemes in this way, they could maintain liberal joinder regimes for the most common criminal cases, where joinder is most efficient, without continuing to hinder those defendants who face the most serious consequences and the highest stakes during their trials. [ABSTRACT FROM AUTHOR]

General aviation accident litigation has recently become more complicated, with multiple lawsuits filed in multiple venues to litigate the same crash. An informal poll at the Air Law Symposium indicated that a large percentage of the attendees had been involved in such cases. Two primary forces likely give rise to these multiple lawsuits. First, with the demise of joint and several liability, plaintiffs are often forced to sue more defendants and for defendants to add more third-party defendants. Second, the more rigorous personal jurisdiction standards articulated by the United States Supreme Court in the past decade have tightened both general and specific jurisdiction. As a result, finding a single forum with personal jurisdiction over all parties has become more difficult. In this environment, many complications can arise for plaintiffs, defendants, and third-party defendants. Deciding what law applies can be a complex problem with a single case in a single forum. It is far more complicated with multiple lawsuits in multiple states. The demise of joint and several liability in most states creates problems, too. When one case is filed in a joint and several state, and others are filed in various several liability states, there can be confusion galore, not only between the joint and several state and the others but also from significant differences in the application of several liability among the several liability states. One state's law may preclude several liability as to product manufacturers, and others may not; some may limit several liability to noneconomic damages or set a threshold percentage of fault above which a defendant is still subject to joint and several liability. One state may permit the jury to weigh fault allocated by non-parties; others may require timely pleading of claims of non-party fault or preclude allocation to non-parties altogether. Along with traditional constraints, such as whether a party can pursue multiple lawsuits, the risks of res judicata and taking different positions in different lawsuits are important issues for all parties. There are ways to minimize duplicative effort, such as using Multidistrict Litigation (MDL) proceedings under 28 U.S.C. § 1407. MDLs can mitigate multiple lawsuits in multiple states but are often slow in resolving cases, and they ordinarily remand the cases to their original fora for trial. State courts lack any method of consolidating cases pending in other states. This Article addresses a variety of possible methods that may help handle these issues, as well as identifying those that are likely to be useless. Many of these issues have been addressed in other contexts, such as articles about the effect of a particular state's change from joint and several liability to that state's adoption of a form of several liability. However, no single publication identifies the potential complications of litigating multiple lawsuits in multiple states arising from the same accident. The Third Restatement of Torts, Apportionment of Liability, discusses five categories of joint and several or several liability but, understandably, not the other complications of multiple lawsuits. Furthermore, some states' laws have changed since the Restatement was published two decades ago. This Article attempts to help litigators, whether for plaintiffs or defendants, anticipate the issues they may face if multiple lawsuits are filed out of the same crash and attempts to identify the risks and alternatives to be considered. [ABSTRACT FROM AUTHOR]

Over one third of all pending cases in the federal court system are part of a Multidistrict Litigation (MDL) proceeding. Previous and ongoing MDLs include claims stemming from the opioid epidemic, the Deepwater Horizon oil spill, the National Football League concussion cases, and a myriad of pharmaceutical and medical products liability suits. Both the percentage and sheer number of cases utilizing this form of aggregate litigation have dramatically increased in recent years. Bellwether trials, designed to test the facts and legal theories underpinning many of the consolidated cases, are a key feature of MDLs in facilitating resolution. This Note examines the role of MDL bellwether trials and the potential impact of proposed reforms. Part I surveys the functions of bellwether trials as well as current judicial limitations imposed on the practice. Part II examines proposals that would further restrict the use of MDL bellwether trials: first, a bill from the 115th Congress and second, proposed amendments to the Federal Rules of Civil Procedure. These proposals would require the consent of all parties for an MDL bellwether to ensue. Finally, Part III explores the potential effects of these proposed reforms as well as the discrepancies between their purported aims and the likely impact of their enactment. These proposals would exacerbate the MDL "black hole," result in less informed settlements, and create more opacity in the MDL process. Principally, they are an attempt to wrest power over procedure to cement defendants' structural advantage over the MDL. [ABSTRACT FROM AUTHOR]

The article focuses on jury selection in the first Opioid Multidistrict Litigation (MDL) in bellwether trial. Topics include plaintiffs' allegation against the manufacturers on marketing and promoting prescription of opioids as being safe and effective, and allegation against the distributors on refusing to accept the law related to prescription opioids.

The article focuses on jury selection in an Multidistrict Litigation (MDL) proceeding in the context of individual bellwether trials. It mentions request by defense counsel in the "Opioids" MDL 28045 for extensive records and information regarding the jury selection process. It also mention announcement by the presiding judge in the In re Roundup MDL 27416 proceeding that he did not intend to permit individualized voir dire questioning.

The article focuses on proceedings before the judicial panel on Multidistrict Litigation (MDL). Topics include statute authorizes the Judicial Panel on Multidistrict Litigation to transfer or centralize cases from various district courts to a single district, and goal of centralization is to promote the just and efficient conduct of the actions while also serving the convenience of parties and witnesses.

The article discusses Judicial Panel on Multidistrict Litigation (JPML) determines whether to create Multidistrict Litigation (MDL). It mentions that existence of different kinds of plaintiffs has prevented transfer or has prompted the JPML to create multiple MDLs. It also mentions that lawsuits raise different types of claims or allegations is sometimes a basis for denying centralization.

The article focuses on attorneys Ryan Hudson, Rex Sharp, and Dean Nancy Levit identify remand as one of the five stages of a Multidistrict Litigation (MDL). It mentions that statutory language suggests limitations on a transferee judge's role, explicitly permitting transfer only for "coordinated or consolidated pre-trial proceedings.

The article focuses on establishing a fixed timeframe for Multidistrict Litigation (MDL) proceeding in a transferee court to encourage the parties to settle or have their cases scattered by remand or transfer. It mentions that need for multidistrict litigation during the pendency of numerous civil antitrust cases relating to the electrical equipment industry.

The article discusses the Multidistrict Litigation (MDL) remand process from the perspective of plaintiffs' counsel. It mentions cases remanded from the pelvic mesh MDLs centralized before Judge Goodwin in the Southern District of West Virginia. It also mentions plaintiffs' counsel on the post-remand journey to chart a proper course to trial.

The article focuses on different approaches to settlement of an Multidistrict Litigation (MDL). It mentions that federal judges take a very hands-off approach to managing normal civil litigation while MDL judge appears to take a very active role in moving an MDL. It also mentions that defense counsel may not disclose that there is a dispute about insurance coverage between insurance carriers to settle obstacles.

The article focuses in defense lawyer's view on five factors that may improve the effective and efficient settlement of Multidistrict Litigation (MDL) and mass tort claims. It mentions selection of "bellwether" trial cases of the caseload and result in bizarrely huge verdicts, and the overvaluation of inventories at settlement puts defendants in an untenable position.

The article focuses on role of the Multidistrict Litigation (MDL) court in facilitating settlement in mass tort is dictated by the personal predilections of the trial judge. Topics include judges believe a bellwether trial will serve only to cement the parties' positions, and MDL remand orders are accompanied by a dreaded Lone Pine Order.

The article focuses on transferee judges to accelerate a global resolution of an Multidistrict Litigation (MDL) in the "bellwether" or "representative trial." Topics include consolidation of individual cases in a transferee court by the MDL Panel pursuant as consolidation improves the efficiency of the pre-trial process, and attorneys for the parties and the transferee court to select a manageable number of cases.

The article focuses on bellwether trial in Multidistrict Litigation (MDL) allows the parties to put their theories to the test and dictate the future resolution of the MDL. It mentions Lexecon Inc. v. Milberg Weiss court case in which the Supreme Court held that a transferee judge presiding over an MDL cannot. It also mentions providing Lexecon waivers for subsequent discovery pool or trial case.

The article focuses on defense perspective concerning the formation of Multidistrict Litigations (MDLs). Topics include how can defendants avoid being swept into an MDL when they have determined that it is not in their interests, prospects for defendants to argue successfully in favor of a particular MDL location, and centralization of claims arising out of alleged defects in the da Vinci Robotic Surgical System.

The article focuses on voir dire in a post-coronavirus Multidistrict Litigation (MDL). It mentions that state courts generally leaning more heavily on lawyer voir dire, while most federal judges conduct the preponderance of the voir dire. It also mentions that both state and federal courts are much more attuned to the advantages of using questionnaires before jury selection.

The article focuses on the works of the Judicial Panel on Multidistrict Litigation (JPML). Topics include hearing has evolved into a uniquely efficient centralization mechanism designed to afford logistical due process, percentage of centralization petitions that the Panel grants has decreased, and COVID-19 Business Interruption Protection Insurance Litigation.

The article focuses on defense practitioner's views of managing federal discovery in large-scale consolidated proceedings in Multidistrict Litigation (MDL). Topics include Federal Rules of Civil Procedure generally permit wide latitude for the parties subject to judicial supervision, and how effective federal-state coordination can be achieved in managing similar claims in separate jurisdictions.

The article discusses court case In re National Prescription Opiate Litigation on opioids Multidistrict Litigation (MDL). Topics include communities throughout the U.S. fell victim to an unprecedented prescription opioid addiction crisis, discovery obligations for MDL plaintiffs and defendants differed, and firms associated with members of leadership are assigned to lead efforts against defendants on a one-to-one basis.

The article focuses on Multidistrict Litigation (MDL) dockets are acute in product liability and other personal injury. Topics include explosion of case filings in MDLs, an explanation as to why MDLs facilitate a surge in case filings, cases that would never have been filed outside of the MDL context, and plaintiffs' leadership group is appointed by the court with responsibility for spearheading the litigation on behalf of plaintiffs.

The article focuses on an advice to a new Multidistrict Litigation (MDL) on discovery management. Topics include new plaintiff can complete and share with the defendants a Plaintiff Profile Form, discovery should focus on common-issue discovery such as production of relevant documents from the defendants and third parties, and establish a procedure for handling already-completed common discovery.

The article focuses on products liability Multidistrict litigations (MDLs) including In re Abilify Products Liability Litigation and In re 3M Products Liability Litigation. Topics include deficiency disputes that the parties are unable to resolve themselves may be brought to the court for resolution, and the parties use a litigation database called MDL Centrality® for centralized litigation management and support.