Approximately 40% of the civil cases pending in the nation’s federal courts are consolidated in MDLs. This has resulted in a shift away from the rule of law to a system of arbitrary justice. A single power-grabbing MDL judge is able to deny justice to hundreds of thousands of plaintiffs.
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What is Multidistrict Litigation (MDL)?
The United States Judicial Panel on Multidistrict Litigation (“JPML”) traces its origins to the early 1960s when more than 1800 related civil actions involving price-fixing allegations in the electrical equipment industry flooded the federal courts. To coordinate discovery among the electrical equipment antitrust cases in the over thirty involved courts, Chief Justice Earl Warren created the Coordinating Committee for Multiple Litigation of the United States District Courts. At the end of its work, the Committee recommended a more formalized procedure for handling groups of similar cases. In response, in 1968, Congress enacted the Multidistrict Litigation Statute (28 U.S.C. § 1407), the statute to which the JPML owes its existence.
The JPML consists of seven sitting federal judges designated from time to time by the Chief Justice of the United States. No two JPML members may be from the same federal judicial circuit. The concurrence of four members shall be necessary to any action by the JPML.
The seven JPML members are appointed without any limitation on their terms (“designated from time to time”). However, in June 2000, then-Chief Justice William H. Rehnquist imposed some regularity and predictability on the appointment process by establishing staggered seven-year terms for each member. Chief Justice John G. Roberts, Jr. has continued his predecessor’s practice.
The multidistrict litigation (“MDL”) statute provides, in pertinent part:
“When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions. Each action so transferred shall be remanded by the panel at or before the conclusion of such pretrial proceedings to the district from which it was transferred unless it shall have been previously terminated.”
In plain English, the JPML was created to:
(a) determine whether civil actions pending in different federal districts involve one or more common questions of fact such that the actions should be transferred to one federal district for coordinated or consolidated pretrial proceedings;
(b) ensure such transfer of cases to one federal district will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions; and
(c) select the federal district and judge(s) best situated to handle the transferred cases.