The U.S. Judicial Panel on Multidistrict Litigation recently released the data on requests for coordination and dispositions in 2012, and some interesting trends can be detected.
Specifically, the Panel has shown an increasingly strict view of MDL requests. In the early years of the last decade, the Panel routinely granted most requests, and even as recently as 2007-09 the Panel was granting 4 out every 5 requests. Since then, however, the panel has denied more than 40% of the MDL requests.
One theory for the change is the increase over time in the number of petitions made, but that trend has actually started to level off in recent years. And the Panel has always maintained it has sufficient able federal judges to mange the MDL’s.
Another theory has to do with the feedback received by the Panel from judges and practitioners in a 2010 survey of MDL practice. Much of that feedback discussed the Panel’s ostensible preference for centralization. The Panel now may have a deeper appreciation for the costs and economics of creating an MDL.
A third theory is that CAFA and federal court scrutiny of class actions has pushed more cases into the MDL stream, and sooner, although it is hard to confirm any rampant prematurity phenomenon.
Another is a possible change in the mix of cases proposed for MDL status. Recent cases may have smaller numbers of parties, more varied filing dates, differing defendants, and different subject matters — fewer antitrust matters and more consumer fraud claims, for example.