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Who Will Manage Complex Civil Litigation? The Decision to Transfer and Consolidate Multidistrict Litigation

Authors

  • Margaret S. Williams,

  • Tracey E. George


  • The views expressed herein are those of the authors and not necessarily those of the Federal Judicial Center. The authors are part of an MDL empirical project undertaken by the Federal Judicial Center Research Division in collaboration with Vanderbilt Law School. An earlier version of this article was presented at the Conference on Empirical Legal Studies, the University of Chicago Judicial Behavior Workshop, and Vanderbilt Law School. The authors appreciate the feedback they received at those presentations and from Joe Cecil, Kevin Clermont, Frank Easterbrook, Lee Epstein, Chris Guthrie, Bill Landes, Emery Lee, Richard Nagareda, Dick Posner, Kevin Scott, anonymous reviewers, and JELS editors. The authors thank Richard Tabuteau, Josh Cepluch, Ashley Dennis, Geraldine Young, David Mitchell, and Thomas McFarland for excellent research assistance. George thanks Vanderbilt's Branstetter Litigation & Dispute Resolution Program for financial support.

Address correspondence to Tracey E. George, Vanderbilt Law School, 131 21st Ave. S., Nashville, TN 37203; email: tracey.george@vanderbilt.edu.

Abstract

The U.S. 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, including ruling on dispositive pretrial motions. Nearly all cases are resolved without returning to the original district court. Thus, as a practical matter, the MDL Panel controls where these disputes will be litigated. And, the MDL Panel has substantial discretion in making that decision. In its first 44 years of existence, the Panel has transferred and consolidated nearly 400,000 lawsuits, including high-profile securities and derivative lawsuits, large-scale consumer actions, and mass torts involving products liability claims, common disasters, and air crashes. The Panel's transfer ruling has never been overturned. The current study provides the first systematic and comprehensive 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. We find that the Panel grants most motions to transfer and consolidate, but exercises meaningful discretion in choosing where and by whom the cases will be adjudicated. The MDL Panel is much more likely to assign cases to a district court where a current panelist sits and that is supported by at least one defendant and to a district judge who currently serves on the Panel. Thus, the composition of the Panel has a meaningful effect on where and how large-scale litigation will be resolved.

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