Monday, February 13, 2017

MDL v. Trump


As Civil Procedure teachers, the recent immigration-order fiasco has had a surreal quality to it: it’s as though our bizarre final-exam hypotheticals are coming to life in real time. Questions of standing, appealability, nationwide injunctions, and more are all playing out in front of our eyes—not to mention deep challenges for the separation of powers, federalism, and fundamental rights. But as proceduralists we also noted a seemingly obvious possibility that hasn’t been mentioned by the lawyers or the press. As these essentially identical cases began to proliferate in district courts across the country, why did no one seek consolidation of the cases as a multidistrictlitigation (or MDL).

For the uninitiated, MDL is the statutory mechanism for consolidation of suits filed in multiple federal district courts before a single district judge for pretrial proceedings. All that is necessary for consolidation under the statute is that the cases share a common question of fact, and that the consolidation be for the convenience of the parties and witnesses and that it promotes the just and efficient conduct of the actions. Any party in any of the cases can move for consolidation, and the motion is decided by the Judicial Panel on Multidistrict Litigation, or JPML, a panel of seven federal judges appointed by the Chief Justice. The JPML chooses the district judge to whom the cases will be sent, and, after the conclusion of pretrial proceedings, remands the cases to the districts in which they were filed for trial.

Although it was little noticed for the first several decades after Congress created it in 1968, MDL is now a topic of major interest, primarily because of its ever-increasing prominence in the federal courts: to wit, MDL now accounts for a third of the federal civil docket, and as of January, there were over 131,000 cases pending in MDLs. The vast majority of these cases are in personal injury or products liability. Most attribute the recent explosion of MDL to the demise of the mass-tort class action, which after numerous fits and starts, was essentially killed by the combination of the Supreme Court’s restrictive Rule 23 jurisprudence and the Class Action Fairness Act of 2005.

The main benefits of MDL have long been thought to be in reducing duplicative and expensive pretrial proceedings, and in providing a forum in which the parties can eventually broker a global settlement. So, for example, in a mass tort case, hundreds of cases may be consolidated for purposes of coordinating pretrial motions practice, discovery, and ultimately settlement. This process resolved hundreds of cases involving thousands of individual claims arising from the BP Oil Spill.

Although MDLs are commonly thought of as tools to resolve mass torts, there seems to be nothing in the statute that would prevent its use in public-law cases like the one involving Trump’s executive order. And one might imagine reasons why the parties on both sides of the “v” and the involved judges might want to try it.

Most obviously, the government may have thought that it had a better chance of success arguing before a single judge rather than many. The problem for the government is that, in order for the ban to remain in place, it needs to win every single case challenging it. If even one plaintiff succeeds in obtaining a nationwide preliminary injunction, the ban would be halted. But had all of the cases been consolidated in a single MDL proceeding, then the government would have needed to win only once to avoid a PI. Earlier this month, the administration was successful before Judge Gorton in Massachusetts—if he had been the MDL judge, the government would not have had to continue litigating other cases around the country.

Plaintiffs, too, might see a strategic advantage in the MDL device. If a plaintiff in one of these cases were unhappy with her draw of a district judge, she might be intrigued by a JPML on which six of the seven judges were appointed to the bench by Bill Clinton. The panel has the power to decide which cases to consolidate and where to send them, reviewable only by mandamus. So invoking this procedure might empower a friendly JPML to pick and choose cases to send to a friendly MDL judge.

Finally, it is possible that one of the district judges hearing an immigration-ban challenge might be inclined to pass the hot potato—or that some of the JPML judges might be eager to snatch these high-profile cases.

Setting strategy aside, there are some at least initially appealing systemic reasons for MDL in cases like these. There is, of course, the classic argument for MDL, which is to avoid duplicative proceedings in multiples courts. Moreover, there are deep and unresolved questions that arise when rulings by federal judges conflict—particularly when at least one of those judges orders a nationwide injunction, purportedly enforceable in every district including ones in which judges have come out the other way. Consolidation before a single judge solves the conflicts problem, and, at least arguably, the MDL process provides an opportunity for the federal courts to speak with one voice in controversies of nationwide scope.

While we procedure teachers might get a few more press calls if the MDL statute were invoked, there are nevertheless strong reasons why the JPML should stay away from these sorts of cases. For one thing, any action by the JPML here would immediately politicize the panel and the MDL process. MDL is already in the political crossfire over aggregate litigation generally—one example is the House bill introduced this week that attempts to rein in some of the advantages plaintiffs are thought to have in MDL proceedings. Any use of the MDL process in hot-button cases might reduce its legitimacy in the mass-tort cases where it is really needed (in light of the lack of a mass tort class action).

Moreover, one could imagine Chief Justice Roberts responding to an increasingly political JPML by appointing judges more amenable to his own political philosophy (as he seemingly has done on the Civil Rules Advisory Committee and the Foreign Intelligence Surveillance Court), thereby eliminating any advantage lawyers currently opposing the administration might have. Selection of the judges on the JPML for political reasons could have negative spillover effects, because rather than choosing judges well versed in managing complex private litigation, the Panel would be comprised of judges with ideological priorities that may not line up with efficient resolution of mass torts. This would be an especially inauspicious outcome because, even if the government routinely brought public-law suits to the MDL, they would be substantially outnumbered by the tens of thousands of private MDL cases each year.

Going forward, we think it is an important question whether the MDL process ever makes sense for these sorts of nationwide public-law cases (and, indeed, we are working on a separate project attempting to answer that question). For one thing, in fast-moving, injunctive-relief cases that turn mostly on questions of law, the primary benefit of MDL—streamlining expensive discovery—is really not present. Plus, the use of an MDL judge doesn’t really resolve the underlying problems with nationwide injunctions issuing from a single district court. To the contrary, it just amplifies the problem since the injunction would be issued by a judge chosen by another cabal of judges—a process that hardly seems more democratic. Finally, in cases like these, there may be systemic benefits from multiple decisions by multiple judges arising from arguments by multiple lawyers. Since cases of this magnitude are likely to wind up before the Supreme Court, the quality of justice may improve with even a little bit of percolation in the lower courts.

In sum, MDL seems like a potential avenue for the Executive Order cases and any number of other politically charged cases that may arise during the next four years. But for the reasons mentioned above, we hope that the MDL remains the province of mass torts and our final-exam hypotheticals.

1 comment:

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