Is My Drywall Chinese? - HB Litigation Conferences

BACKGROUND
PROCEDURE
MULTIDISTRICT LITIGATION: A DEFENSE PERSPECTIVE
William Schuette
Jones, Walker, Waechter, Carrier & Denegre
8555 United Plaza Blvd.
Baton Rouge, Louisiana 70809
225.248.2056
wschuette@joneswalker.com
The Judicial Panel on Multidistrict Litigation (JPML) was created by Congress in 1968, 28
USC 1407. It is composed of seven federal district or appellate court judges selected by
the Chief Justice of the United States Supreme Court. On its own initiative or on motion
of a litigant, the JPML may take notice that multiple suits pending in the district courts
of the United States present one or more common factual issues and order those
proceedings consolidated for pretrial proceedings. Based on various factors, the JPML
selects a venue and judge to which all pending and future cases presenting the common
factual issues are transferred.
The purpose of the multidistrict litigation procedure is to reduce the costs and
possibility of inconsistent rulings inherent in repetitive litigation. Since its inception, the
multidistrict litigation procedure has been used in a variety of types of cases including
products liability, intellectual property, automotive recalls, securities, antitrust,
commercial fraud, medical devices and pharmaceutical.
With some modifications primarily related to the transfer to and remand from the MDL
and the manner of filing and serving pleadings the Federal Rules of Civil Procedure
apply. A copy of the Rules of Procedure of the Judicial Panel of Multidistrict Litigation is
attached. Also attached is a copy of the FAQ page from the JPML’s web site.
DIFFERENCES FROM CLASS ACTIONS
The standards for establishing an MDL proceeding are much broader than those
required for certification of a class action. Rather than a showing of numerosity
necessary for a class action, an MDL requires only two or more federal proceedings. A
class action requires a finding that the common questions of law and fact outweigh the
individual issues whereas an MDL only requires that there be some common question of
fact. These differences make the MDL available in far more situations than those in
which a class action could be certified.