Not all similar claims are appropriate for consolidation into multidistrict litigation. A seven-judge panel selected by the Chief Justice of the Supreme Court is empowered to decide which products liability cases should be consolidated. This panel meets about six times each year. In determining whether to order consolidation, the panel considers such factors as avoiding high litigation costs, preventing unnecessary discover duplication, and precluding conflicting rulings and schedules. Multidistrict litigation will not be ordered, however, unless it not only conserves judicial resources, but also those of the litigants themselves.
If consolidation is ordered, the various cases are assigned to a particular judge in one federal district. The selected court to which the cases are transferred, known as the transferee court, has the power to rule on the motions of any of the parties. The transferee court’s power is limited, however, to pretrial proceedings. In other words, it cannot hear a consolidated trial of all of the cases or preside over post-trial matters. Often, the goal is to settle or resolve the cases at the pretrial stage, so in actuality the transferee court may see the consolidated cases through to their conclusion. When that goal is not accomplished, the transferee court may remand the case back to the originating court for the trial.
One of the first official acts of the transferee court judge is to appoint a steering committee consisting of several of the plaintiffs’ lawyers. This committee is responsible for conducting the common discovery, setting up a document depository, keeping non-committee lawyers informed, drafting the briefs, and arguing pretrial motions. It also has the authority to determine which legal theories and which defendants to pursue, which witnesses should be deposed, and how to conduct discovery (the exchange of documents and critical information between the plaintiffs and the defendants).
Attorneys who are not on the steering committee must still stay closely involved with their transferred cases. The steering committee lawyers do not do all of their work for them. If an attorney who is not on the committee fails to keep current with case developments, he or she runs the risk of failing to understand the technical aspects of the case and being unable to adequately evaluate the case if it is remanded and goes to trial. Accordingly, even non-committee lawyers should participate in depositions, review all relevant documents in person or via computer, attend steering committee meetings, and keep a trial notebook.
When a multidistrict case settles, the steering committee lawyers are awarded attorneys’ fees that exceed those recovered by the non-committee lawyers. Sometimes, the plaintiffs and the non-committee lawyers contest these fee awards as being excessive. The more the steering committee gets, the less there is to compensate the plaintiffs (and, of course, their individual attorneys). Challenges to large fee awards are not always successful, however, as was the case in a multidistrict suit involving a Puerto Rico hotel fire, in which the court awarded the steering committee over $10 million.
Multidistrict litigation has some similarities with class action lawsuits. Both offer the possibility of simplifying the litigation process and achieving a consistent outcome on behalf of many plaintiffs. A class action lawsuit is a case in which one or more persons are named as plaintiffs in the complaint, the document that officially starts the lawsuit, but the case is actually pursued on behalf of many other persons with similar claims. The persons named on the complaint are the class representatives, and their claims must arise from circumstances similar to those of the other class members. In a class action lawsuit, the plaintiffs divide up the damages that are recovered. A class action suit may be the best way to pursue a claim and ensure a winning outcome, or it could result in lesser damages than would be recovered when suing on an individual basis.
Some cases involve both multidistrict litigation and class actions. One notable case that involved both was that involving the Norplant contraceptive device, about one million of which had been sold in the United States. In the Norplant case, a class action was filed in Illinois by twenty-one or so women on behalf of others who had suffered damages as a result of using that product. Shortly thereafter, another class action suit was filed in Texas, and other individual cases sprang up in other federal districts. The plaintiffs sought consolidation of the cases through multidistrict litigation. Although they all agreed that consolidation was appropriate, disagreement arose over the proper transferee district. The panel ultimately ordered that the pretrial proceedings in all of the consolidated cases be held in the Texas federal district court.
Although multidistrict litigation generally concerns only federal court litigation, cases that were originally brought in state courts can, in appropriate circumstances, be transferred to federal court to facilitate consolidation. Even when transfer of all cases to a single court for centralized management is impossible, the various individual courts should attempt to coordinate proceedings through informal mechanisms in order to minimize conflicts, inconsistent rulings, and duplicated efforts. This type of informal coordination can be accomplished through the voluntary participation of counsel, communication among judges, joint pretrial conferences and hearings at which more than one judge presides, the issuance of parallel orders, and/or the designation of a lead case. Rulings in the lead case would presumptively apply to the other informally coordinated cases, and pretrial proceedings in those cases may be stayed until after the lead case is resolved.