There’s No Place Like Home: The Pros and Cons of Lexecon Waivers and Bellwether Trials in the Modern MDL

Creation and Mechanics of Multi-District Litigation

Creation of the MDL 1968 amendment to Judicial Code 28 U.S.C. §1407: “[t]o provide for the temporary transfer to a single district for coordinated or consolidated pretrial proceedings of civil actions pending in different districts which involve one or more common questions of fact.” Judicial Panel on Multidistrict Litigation (the “Panel”) oversees the process

The Panel: Composition and Power Seven sitting federal judges What does the Panel do? Determine if cases involve one or more common questions of fact? Select the judge and court Can transfer on own initiative or by motion

Considerations Creating an MDL Number of actions involved; Size and complexity of the cases; Whether parties agree that consolidation is appropriate; Potentially conflicting class actions; Danger of duplicative discovery; Unusual need to expedite litigation; and Conservation of parties’ resources

Considerations Selecting Transferee District and Judge Location of evidence; Place of tortious event; Centrality; Venue of pending actions; Coordination with other state/federal proceedings; Familiarity of forum with issues; Overall docket conditions; Preference of the parties; and Lack of MDLs in that district

Recent MDL Trends Motions to Centralize Granted Denied

Recent MDL Trends Types of MDLs Pending in 2015

Recent MDL Trends MDL Venues Created in 2015 31% (11) in the Midwest Illinois, Indiana, Kansas, Minnesota, Missouri, Ohio 25% (9) in the West Arizona, California, Oregon 25% (9) in the South Alabama, Dist. of Columbia, Florida, S. Carolina, Texas, Virginia 25% (7) in the Northeast Massachusetts, New Jersey, New York, Pennsylvania

Lexecon v. Milberg Weiss Bershad Hynes and Lerach (1998)

Lexecon v. Milberg Weiss Bershad Hynes and Lerach (1998) Lexecon takeaways: Court strikes down self-transfer process Court says JPML must remand cases after pre-trial proceedings are complete Lexecon workarounds?

Bellwether Trials

Bellwether Trials Purpose?

Bellwether Trials “Should I advise my client to waive Lexecon rights so that the case can be tried by MDL judge?”

Selection of Representative Cases? Bellwether Trials Selection of Representative Cases?

Bellwether Trials Are they working?

Questions?