An Empirical Evaluation of Proposed Civil Rules for Multidistrict Litigation

The Civil Rules Committee of the Judicial Conference of theUnited States recently began considering the need for specificrules regarding multidistrict litigation (MDL) proceedings. Thepossibility of creating rules specifically for MDL originates withrecently proposed legislation prompted by groups typically tiedto the defense bar. One area the Civil Rules Committee isconsidering concerns the use of fact sheets in MDL proceedings.These party-negotiated questionnaires—directed at bothparties to the case—inform judges and attorneys about thescope of the proceeding. Understanding whether these casemanagement tools are currently being used and how they workwith other tools, such as bellwether trials, in MDL proceedingswill help inform a discussion of the need for specific MDL rules.Despite their importance, very little published, empirical worklooks at fact sheets in MDL proceedings. This is the firstcomprehensive study of the use of fact sheets.Using a sample of 116 mass tort proceedings—typicallyinvolving products liability—centralized through MDLbetween 2008 and 2018, we examine when fact sheets wereordered, what the procedures for complying with the casemanagement order were, what information was collected, andwhat effect fact sheets had on the termination of theproceedings. The proceedings ranged between 3 and 40,533actions and were open a minimum of 118 days and a maximumof 3811 days. Actions terminated within the proceeding at least 98% of the time, but little available information existsregarding how the actions terminated. These proceedings werecentralized in forty districts. We find that fact sheets wereordered more than half the time and were most likely to be usedin the largest proceedings. The information in fact sheets wasused in proceedings in several ways, including to identify casesfor bellwether trials and winnowing cases. Using fact sheets,moreover, led to quicker termination of the proceeding, all elsebeing equal. Our sample of proceedings suggests judges use factsheets to organize products liability proceedings when judgesperceive they are merited, after considering the size of theproceeding or the nature of the litigation. The frequency withwhich judges already employ fact sheets and the variation inuses call into question both the need for a rule and how to writeone without tying the hands of transferee judges. Many issuesregarding how fact sheets are used remain to be studied morein-depth. We encourage future studies regarding how factsheets are used across MDL proceedings

Repeat Players in Multidistrict Litigation: The Social Network

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal- agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest. Although multidistrict litigation now comprises 36% of the pending federal civil caseload, legal scholars have offered little sustained theoretical or empirical analysis as to how repeat players’ enforcement efforts shape litigation or claims resolution. We wade into this increasingly controversial territory to offer the first comprehensive empirical investigation of private attorneys’ efforts in multidistrict leadership on both the plaintiff and defense side. We found that transferee judges regularly appoint the same lead attorneys. To then uncover what the naked eye cannot see, we employed a social-network analysis to reveal repeat actors’ connections to one another. No matter what measure of centrality we used, a key group of attorneys maintained their elite position within the network. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way. By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a twenty-two-year span, we were unable to find any deal that did not feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent- fee principles, which are designed to tie lawyers’ fees to their clients’ outcome. Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings—when they “play for rules,” so to speak—the rules they develop may principally benefit them at the expense of one-shot plaintiffs

Judicial Adjuncts in Multidistrict Litigation

Peeking under the tent of our nation\u27s largest and often most impactful cases reveals that judges often act like ringmasters: They delegate their authority to a wide array of magistrate judges, special masters, and settlement administrators. Some, like the American Bar Association, see this as a plus that promotes efficiency and cost savings. Critics, however, contend that delegating judicial power especially to private citizens, removes adjudication from public scrutiny, injects thorny ethical questions about ex parte communications, and risks cronyism and high costs. By constructing an original dataset of ninety-two multidistrict products liability proceedings centralized over fourteen years, we introduce the first taxonomy of the diverse adjuncts working within them. Testing adjuncts\u27 effects with a multivariate analysis, we found that proceedings with special masters lasted 66% longer than those without, and appointing any kind of adjunct meant that the proceeding was 43% less likely to end. Not only did justice take longer it cost more: 74% of the adjuncts were not magistrate judges, meaning that the parties paid them. Digging deeper we interviewed some of the lawyers, judges, and adjuncts who participated in these proceedings. Attorneys\u27 experiences moved scholars\u27 concerns from law review pages to real life: Rather than improving justice, some adjuncts cajole parties through off-the-record discussions; repeat players tap one another for business; and plaintiffs\u27 outcomes may depend more on whether they picked an attorney with the inside track than their suits\u27 merits. Collectively, our findings support existing reservations about allocating judicial power to those in the private secto

Perceptions of Justice in Multidistrict Litigation: Voices from the Crowd

With all eyes on criminal justice reform, multidistrict litigation (MDL) has quietly reshaped civil justice, undermining fundamental tenets of due process, procedural justice, attorney ethics, and tort law along the way. In 2020, the MDL caseload tripled that of the federal criminal caseload, one out of every two cases filed in federal civil court was an MDL case, and 97% of those were products liability like opioids, talc, and Roundup. Ordinarily, civil procedure puts tort plaintiffs in the driver’s seat, allowing them to choose who and where to sue, and what claims to bring. Procedural justice tells courts to ensure plaintiffs can present evidence, participate, and tell their story—or risk inaccurate outcomes and judicial illegitimacy. But MDL’s efficiency mantra trumps all, transferring plaintiffs with related facts away from their preferred venue, centralizing their cases with hundreds of others before a judge in a faraway forum, replacing their chosen attorneys with a judicially selected roster of lead lawyers, depersonalizing plaintiffs’ narratives, and settling their cases en masse. Though MDL makes them feel like “just another number,” one-shot plaintiffs can say little in response: many are sick, bankrupt, and silenced by private settlements’ confidentiality provisions.No longer. In conducting the first ever MDL procedural justice study, we spoke with plaintiffs from 42 different states with diverse backgrounds, educations, and races. Their cases originated in 32 different state and federal courts, and 295 lawyers from 145 law firms represented them. Although 54% of their attorneys (or someone from their firm) led the MDLs, lawyers did little for the clients they stockpiled. When it came to their attorney experience, 64% of participants were somewhat or deeply dissatisfied, 50% did not feel that they could trust their attorney, 59% received few or no status updates, and 67% did not understand what was happening with their lawsuit. Nor did MDLs feel efficient or accessible. They lasted almost four times as long as the average civil case, with 73% of respondents finding the delay unreasonable and only 1.3% ever attending a hearing. And yet, nearly 60% would have been willing to wait longer to tell their story—some up to five years more. Without those opportunities for input, only 25% thought claims administrators possessed or relied on accurate information, which raises questions about accuracy, substantive outcomes, and the system’s ability to fulfill tort-law objectives. And though plaintiffs had many goals, from compensation to protecting others to holding corporations accountable, a mere 1.8% of all participants felt their lawsuit accomplished what they hoped. One put it simply, “Our judicial process is very broken.” MDL needs reform. We ignite the discussion with proposals to increase transparency through mandatory public closing statements that reveal attorneys’ fees, costs, and settlement amounts; voice, access, and accuracy through the public’s newfound familiarity with technology; and due process by appointing separate lead lawyers to represent plaintiffs with conflicting interests

Repeat Players in Multidistrict Litigation: The Social Network

As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest. Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have offered little sustained theoretical or empirical analysis as to how repeat players’ enforcement efforts shape litigation or claims resolution. We wade into this increasingly controversial territory to offer the first comprehensive empirical investigation of private attorneys’ efforts in multidistrict leadership on both the plaintiff and defense side. We found that transferee judges regularly appoint the same lead attorneys. To then uncover what the naked eye cannot see, we employed a social-network analysis to reveal repeat actors’ connections to one another. No matter what measure of centrality we used, a key group of attorneys maintained their elite position within the network. This matters considerably, for lead lawyers control the proceeding and negotiate settlements. They can bargain for what may matter to them most: defendants want to end lawsuits, and plaintiffs’ lawyers want to recover for their clients and receive high fee awards along the way. By identifying settlement provisions that one might argue principally benefit the repeat players, we examined the publicly available nonclass settlements these elite lawyers designed. Over a 22-year span, we were unable to find any deal that didn’t feature at least one closure provision for defendants, and likewise found that nearly all settlements contained some provision that increased lead plaintiffs’ lawyers’ common-benefit fees. Bargaining for attorneys’ fees with one’s opponent is a stark departure from traditional contingent-fee principles, which are designed to tie lawyers’ fees to their clients’ outcome. Based on the evidence available to us, we found reason to be concerned that when repeat players influence the practices and norms that govern multidistrict proceedings — when they “play for rules,” so to speak — the rules they develop may principally benefit them at the expense of one-shot plaintiffs

The Judges of the U.S. Judicial Panel on Multidistrict Litigation

The United States Judicial Panel on Multidistrict Litigation (or MDL Panel ) is one of a small number of special federal courts created pursuant to Article III by Congress and staffed by a Chief-Justice-appointed group of Article III judges for limited terms. The MDL Panel is a powerful judicial institution with substantial discretion over complex litigation in the United States. For all practical purposes, it controls where many of the most far-reaching and significant private civil actions will be resolved which can affect procedural and substantive rights of the parties. An understanding of who has served on the MDL Panel would shed light on both its structure and its decisions. In this article, we provided an analysis of the composition of the Panel, as well as comparing Panel appointments by the Chief Justice to those of the Judicial Conference Committees

Centripetal Forces: Multidistrict Litigation and Its Parts

The article focuses on various issues related to multidistrict litigation (MDL). Topics discussed include the regulation of MDL proceedings under the Multidistrict Litigation Act of 1968, the role of the U.S. lawyers in centralized proceedings of tag-along cases, and the role of panel of judges in adjudicating MDL

Overcoming Poverty: Supported Saving as a Household Development Strategy

Low-income participants experience greater positive financial, psychological, and cognitive outcomes of saving in IDAs than controls. The study contributes to knowledge about poverty alleviation, capacity-building, and empowerment