Multidistrict litigations are usually complex and often very expensive. A “typical” MDL progresses as follows: cases alleging similar misconduct by the same defendant (or defendants) are filed in various courts across the United States. Following motion practice, the Judicial Panel on Multidistrict Litigation decides whether to transfer and centralize those cases for all pretrial purposes, pursuant to 28 U.S.C. § 1407. Should the JPML rule in favor of transfer, the cases are transferred to and centralized in a single federal court for determination of pretrial issues. The transferee court then appoints plaintiffs’ lead counsel, followed by the plaintiffs filing their master complaint, which the defendants almost inevitably (some might say reflexively) move to dismiss. Assuming that the transferee court sustains the complaint, pretrial issues (including, as applicable, class certification) through summary judgment are handled by the transferee court; and, finally, if there isn’t a global settlement or dismissal on summary judgment, the MDL end-game proceeds in a series of “bellwethers”—trials either in the transferee court or back in the originating courts across the U.S. that, in theory, provide clarity to the parties regarding the merits of the case and help to determine the ultimate parameters for a global resolution.
While the MDL process is clearly essential—indeed, despite its flaws, one shudders to think of the efficiency lost if the process did not exist—MDLs often present unique problems in consumer cases. In a typical consumer case involving, say, the purchase of an allegedly defective good, chances are that the harm was felt in every jurisdiction across the U.S. As a result, the master complaint, even of a seemingly simple case, would need to cover all 50 states, alleging torts that often have subtle variations across jurisdictions. The many-hundred-page complaint would need to be digested by the transferee court, which could decide it must unpack the variability among 50 separate states’ laws as part of its lengthy opinion on the dismissal motion. The result: It often takes an incredibly long period of time, and great expense, to get even the most righteous case going.
