From time to time, we try to note interesting articles worth a look from our readers.  In Williams, Margaret S. and George, Tracey E., Deciding Who Decides: Consolidating Multidistrict Litigation (July 1, 2010), the authors share the preliminary results of an empirical investigation of the MDL process.

The United States Judicial Panel on Multidistrict Litigation may transfer factually related actions filed in different federal districts to a single judge for consolidated pretrial litigation. This transferee judge has significant discretion over the management of the litigation, and nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the Panel controls where most of  these disputes will be finally litigated.

The authors note that the Panel has substantial discretion in making that decision. In its forty years of existence, the Panel has transferred roughly 325,000 lawsuits including high-profile securities and derivative lawsuits (the collapse of Lehman Brothers and the Ponzi scheme of Bernie Madoff), consumer claims (Countrywide Mortgage’s lending practices), and mass torts ranging from the Vioxx litigation to the Union Carbine disaster in Bhopal to the bombing of Pan Am Flight 103. Motions are pending to consolidate and transfer more than 100 Gulf of Mexico oil spill suits filed against BP in the various districts along the Gulf coast to the Southern District of Texas.

This study provides an analysis of an empirical investigation of the Panel’s decision to transfer and consolidate pending federal civil lawsuits, examining the rationale for transfer and for the selection of a specific district court and judge to handle the consolidated litigation. The results provided here represent a sample from an ongoing data project which ultimately will include all Panel orders, say the authors. One preliminary conclusion was that more recommendations for a district by the parties and the representation of the district on the Panel increase the likelihood of a transfer
to that district.