A procedure provided by federal statute (28 U.S.C.A. § 1407) that permits civil lawsuits with at least one common (and often intricate) QUESTION OF FACT that have been pending in different federal district courts to be transferred and consolidated for pretrial proceedings before one judge.
Congress has given the federal judicial system a mechanism to help manage complex and protracted civil lawsuits that are related to each other. Under 28 U.S.C.A. § 1407, the Judicial Panel on Multidistrict Litigation has the authority to transfer related cases to one federal judge for "coordinated and consolidated pre-trial discovery" in advance of trial. The panel is composed of seven federal judges based throughout the United States, who have been appointed by the chief justice of the U.S. Supreme Court. The panel's clerk's office is located in Washington, D.C.
Certain types of litigation are good candidates for transfer and consolidation to a single judge. TORTS involving a disaster (usually airplane crashes), PRODUCT LIABILITY, TRADEMARK and patent infringement, SECURITIES violations, and antitrust issues have typically used multidistrict transfer.
Section 1407 transfers are initiated either by motion of a party or by the panel itself. The panel's decision whether to make a transfer is guided by a number of criteria: the existence of one or more common questions of fact within the group of cases being considered; whether transfer would be "for the convenience of parties and witnesses [and would] promote the just and efficient conduct of such actions" (section 1407(a)); the residence of the principal witnesses; the locations where the actions were initially filed; and the likelihood that transfer will avoid conflicting rulings. In general, economy and convenience become the determining factors.
Once the panel decides that a transfer is appropriate, it must select the appropriate judicial district to handle the litigation. There are no statutory guidelines governing the assignment of the consolidated case, but the panel considers the location of the judicial district in relation to the residences of the parties, the scene of the disaster (if the case involves such a situation), the business headquarters of the parties, the location with the highest concentration of relevant documents, and how easily the location of a judicial district can be reached. Apart from these factors, the panel seeks to place transferred cases in courts that have the time to oversee the complexities of the litigation.
After a district is chosen and a federal district judge is selected to manage the group of cases, the judge exercises full judicial powers over the case. The judge will enter a "practice and procedure order" that governs all matters leading to trial. During the pretrial stage, the parties use the discovery process to find out as much as they can about each other's case.
Under the statute, once all pretrial proceedings have been concluded, the judge remands the case to the panel, along with a recommendation as to how the panel should proceed in setting the cases for trial. Though the statute implies that the cases be remanded to their districts of inception for trial, the panel usually transfers a case back to the judge who handled the pretrial proceedings.
Federal multidistrict litigation is governed by the Rules of Procedure of the Judicial Panel on Multidistrict Litigation and the Manual for Complex Litigation. The panel's In re Concrete Pipe, 302 F. Supp. 244 (J.P.M.L. 1969), contains many additional factors that it may consider in deciding whether to transfer a case.
At the state level, similar transfer and consolidation methods have been employed to deal with complex litigation. States have appointed judges to oversee product liability cases involving products such as asbestos, breast implants, and tobacco.
Whitman, M. Hamilton, and Diane Festino Schmitt. 1996. "Multidistrict Litigation: A Primer on Practice before the Panel." The Business Line—Newsletter of Ober and Kaler. Available online at <www.business-line.com> (acccessed November 10, 2003).