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Welcome to the latest installment of "And Now A Word From The Panel," a column which "rides the circuit" with the Judicial Panel on Multidistrict Litigation as it meets on a bimonthly basis at venues around the country.

As this column concludes its fifth year (and 30th article), let us take stock of panel practice over the life of this column with five MDL lessons gleaned from panel trends. But before taking this extensive retrospective look, we turn our attention to the more recent past and the panel's September hearing session in Boston.

At that session, the panel granted four out of the six MDL petitions it considered. With these latest decisions, the panel saw its 2017 "batting average" rise – from .393 to .441, now having created a total of 15 new MDLs and denying 19 MDL petitions for the year. In addition, the overall number of pending MDL proceedings currently stands at 223, down slightly from 227 just two months ago.

The panel continues to make progress in closing older MDL dockets, terminating a total of 38 existing MDLs this year through mid-November.1 For this month's hearing session, the panel heads west to the "Show-Me State," for its November 30 hearing in St. Louis, Missouri, where the panel will now consider eight motions to create new MDL proceedings (and have its last chance to break .500 for the year).2

MDL Lesson No. 1: Fewer At-Bats and Lower Batting Average

In our first column back in January 2013, we explored the issue of when the panel will "just say no" to creating an MDL.3 Over the last five years, the number of MDL proceedings has decreased by nearly 25 percent, dwindling from 291 to 223.4 This appears to be primarily due to three factors.

First, fewer MDL petitions are being presented to the panel (fewer "at bats"). In 2013, the panel ruled on 71 MDL petitions.5 By contrast, only 42 MDL petitions will be heard by the panel this year (assuming the eight MDL motions remain on this week's panel docket).

Second, the panel is granting fewer motions to create an MDL proceeding on both a percentage and absolute basis. In 2013, the panel batted .648 for the year, granting 46 of the 71 MDL petitions it considered. By contrast (as this column has chronicled), the panel's current 2017 batting average is .441, with only 15 new MDLs, and the panel may for the third consecutive year fail to break above .500.

Third, the panel has been feverishly terminating older MDL proceedings. As noted above, during this year alone, the panel has closed out 38 MDL dockets.

But fear not, MDL watchers. There are still 223 MDL proceedings, and the MDL statute (28 U.S.C. § 1407) is still very much alive and well, with more than 125,000 individual actions currently pending in those proceedings.6 As readers are aware, the bimonthly panel hearing sessions are a fixture of our legal landscape touching upon virtually every industry and a wide range of subjects, including data breaches, product liability, sales and marketing practices, antitrust, securities, intellectual property and, of course, sports (with a boxing match again the subject of an MDL petition, being heard this month)!

MDL Lesson No. 2: It's All About the Facts

Time and again, the panel has reminded us that it is guided by the MDL statute which focuses upon the centralization of cases involving "one or more common questions of fact."7 Whether the cases present common or different legal theories will not be dispositive.

Thus, the key for MDL practitioners is to focus upon the facts of the cases, not only whether there are "common" factual issues, but whether those common issues are complex or burdensome enough to warrant MDL treatment.

MDL Lesson No. 3: State Court Counts

As a creature of federal statute, an MDL proceeding is for federal cases. Put another way, the panel lacks authority to centralize state court cases together with federal court cases. That being said, what we continue to learn is that state court cases are nevertheless relevant to the panel's decision on whether to create an MDL proceeding, and even to how it decides where an MDL should be situated.8

Moreover, the panel's website has a link dedicated to the issue of "Federal and State Coordination," which the website states is "[a] joint project by the National Center for State Courts, the U.S. Judicial Panel on Multidistrict Litigation, and the Federal Judicial Center."9 This includes a section dedicated to the import of communication between federal and state courts 10

MDL Lesson No. 4: Location, Location, Location

As this column has observed, one of the most interesting and least predictable aspects of panel practice is location – specifically, the venue for newly created MDL proceedings.11 This is no less true now than it was five years ago.

The reasoning for selection of a particular MDL district remains as varied as it did five years ago, with the panel focusing on multiple factors, including, among others, the proximity of parties' headquarters, the venue of the first-filed case, the district with the most cases or the most procedurally advanced case(s), the district which has the support of many of the parties or (per lesson no. 3 above) the proximity of the district to state court proceedings.

The current MDL proceedings remain geographically dispersed around the country. They are spread out among 51 different federal district courts,12 more than half of the 94 judicial districts nationwide.

MDL Lesson No. 5: Sharing the MDL Wealth

Our final lesson is a corollary of the fourth lesson regarding venue. In recent years, the panel's decisions have suggested that the panel is looking to share the MDL wealth, by assigning MDL cases to judges who have not yet had an opportunity to preside over an MDL proceeding.13 Not that the panel will decline to assign an experienced MDL judge to a new MDL proceeding, but prior MDL experience is clearly not a prerequisite for earning the title of MDL transferee judge.

What MDL petitions will the panel face next? What panel trends lie ahead? Will the panel fail to break above .500 for the third consecutive year? Stay tuned for our January Year in Review edition of "And Now A Word From The Panel," as this column enters its sixth year and the panel heads to its usual winter destination of the Sunshine State – Florida – for its first hearing session of the new year on Jan. 25, 2018!

  1. MDL Statistics Report – Docket Summary Listing (November 15, 2017)

  2. Two of the ten motions originally scheduled to be considered by the panel have either been withdrawn or deemed moot. One of the remaining eight motions will be considered without oral argument.

  3. "And Now A Word From The Panel," Law360 (Jan. 28, 2013).

  4. Compare Calendar Year Statistics of the United States Judicial Panel on Multidistrict Litigation: January through December 2012 with MDL Statistics Report - Distribution of Pending MDL Dockets by District (November 15, 2017).

  5. Calendar Year Statistics of the United States Judicial Panel on Multidistrict Litigation: January through December 2013.

  6. MDL Statistics Report - Distribution of Pending MDL Dockets by District (November 15, 2017).

  7. 28 U.S.C. §1407(a); "And Now A Word From The Panel: End of an Era," Law360 (Dec. 3, 2014).

  8. "And Now A Word From The Panel," Law360 (March 19, 2013).

  9. https://multijurisdictionlitigation.wordpress.com/.

  10. https://multijurisdictionlitigation.wordpress.com/communication/ ("Of course, the first task – the best way to know about the progress of the multijurisdiction litigation as a whole – is to communicate") (emphasis in original).

  11. "And Now A Word From The Panel: 10 Top Venue Arguments," Law360 (July 29, 2014).

  12. MDL Statistics Report - Distribution of Pending MDL Dockets by District (November 15, 2017).

  13. "And Now A Word From The Panel: MDL Venue Choices," Law360 (Nov. 29, 2016).

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