Party Preferences in Multidistrict Litigation

Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs’ terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs—meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation (the JPML or the Panel), which itself was handpicked by the Chief Justice. Meanwhile, decisions on personal jurisdiction, class actions, and other topics have dramatically reduced plaintiffs’ ability to select their preferred forum for complex cases. These trends intersect when jurists and scholars suggest that MDL provides a backstop for aggregate litigation because it is not constrained by rules on personal jurisdiction and class certification. The ultimate choice of the forum in which large-scale cases will be litigated seems to be increasingly in the unconstrained hands of the Panel, and not the plaintiffs. This reliance on MDL as the primary vehicle for aggregation makes it particularly important to know how plaintiffs and defendants fare before the Panel when they argue over where and before whom a new MDL should be heard.

This paper presents the results of our empirical study of the relationship between party preferences and the assignment of MDLs to particular districts and judges. Based on a study of every MDL for a five-year period (2012–2016), we find that party preferences are meaningful for the selection of MDL districts. When plaintiffs and defendants agree on a preferred district, that district is very likely to be the eventual location of the MDL. When they disagree, the Panel sides with plaintiffs and defendants roughly equally. Whether this formal equality implies substantive equality, though, is an issue that merits further attention—and it raises deeper concerns about those forces that are pushing more cases into MDL in the first place. We also examine the characteristics of individual judges to which MDLs are assigned. We find that the Panel has not used its appointment power to engage in partisan behavior, and it has ensured that transferee judges are as diverse as judges overall, although it has not been at the leading edge of diversification.

In sum, we are encouraged by the Panel’s decisions as far as they go, though we believe that these findings call for further scrutiny of federal procedure and judicial administration. The Panel is treating plaintiffs and defendants equally with respect to forum choice, so it matters how frequently MDL is the best (or only) option for aggregation, and it is assigning cases to judges that are representative of federal district judges, so it matters who makes up the federal judiciary. And, of course, the Panel itself is a central actor in this ever-growing segment of federal litigation, so it matters whom the Chief Justice appoints to serve on the Panel in the first place. Understanding these forces is therefore critical to assessing procedural fairness in an era of increasing MDL dominance of the federal judicial system.