May 2, 2019

If It’s Broke, Fix It: Address the MDL Imbalance

Supporters of legal reform know that plaintiffs’ lawyers and their allies are constantly searching for ways to turn the American legal system to their advantage. Class actions are a go-to example: a seemingly neutral mechanism that plaintiffs’ lawyers have learned to exploit, and that regularly produces unfair outcomes for defendants. Unfortunately, the same can now be said for multi-district litigation, or MDLs.

This type of civil litigation includes over half of all federal civil cases and, according to ILR’s newly released white paper, it puts defendants at a clear disadvantage by restricting their right to appeal.

Fifty years ago, not long after the creation of modern class actions, Congress designed MDLs as yet another well-intentioned way to reduce clutter in the legal system. In theory, MDLs are designed to accomplish this in a neutral way, by streamlining pretrial proceedings in large numbers of similar cases against the same defendant, and consolidating them under a single federal judge. 

At first, the MDL docket was just one feature of a much broader landscape of federal civil litigation. But in the last few years that docket has exploded—in 2018, 52 percent of all federal civil cases wound up in MDLs, of which about 90 percent were mass tort cases. And all of this is overseen by a ludicrously small number of judges; to give a shocking but not unusual example, last year one judge was tasked with overseeing more than 11,000 consolidated cases in a single MDL.

Ultimately this means that a very small number of judges exercise an extraordinary amount of power over a majority of civil cases in federal courts.

That’s a problem, because MDLs don’t give plaintiffs and defendants the same rights. When a litigant makes a motion during the pretrial period that has the potential to terminate or influence key elements of some or all of the cases in an MDL, two things can happen:

  1. The judge can dismiss some or all of the cases or fundamentally change the way they’re treated, and then the plaintiff can immediately appeal that decision; or

  2. The judge can rule against dismissing any of the cases or changing the way they’re treated, and unlike the plaintiff, the defendant has no timely and effective way to appeal as of right.

The net result is that defendants are being forced towards settlement, rather than spending years in court fighting hundreds or thousands of cases based on what they believe was the error of a single judge. 

MDLs are a hugely significant part of our legal system, and the way they operate is undeniably unfair. That’s why last week, ILR released new research detailing the problem and pointing to clear solutions.

One of the best chances for a fix lies with the Federal Rules Advisory Committee, who could amend the Federal Rules of Civil Procedure to give defendants a real shot at prompt appellate review. 

Thankfully, the Committee is already on the case. They have created a subcommittee to look at the issue, and the agenda book guiding their most recent meeting reveals that they are actively considering whether to make a rule to even out the playing field for defendants. ILR applauds this step, and urges the Advisory Committee to follow through and fix the MDL imbalance. 

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