24 May 2018

Multi-jurisdictional Litigation Is Surprisingly Common

Nearly 40 percent of the civil cases currently pending in federal court—now over 130,000—are part of a multidistrict litigation, or MDL.
From the abstract of a law review article found here. Some more of the abstract is as follows:
In MDL, all cases pending in federal district courts around the country sharing a common question of fact, such as the defectiveness of a product or drug, are transferred to a single district judge for consolidated pretrial proceedings, after which they are supposed to be remanded for trial. But the reality is that less than 3 percent are ever sent back because the cases are resolved in the MDL court, either through dispositive motion or mass settlement. Surprisingly, despite the fact that the MDL court is where all of the action in these cases typically happens, that court need not have personal jurisdiction over the plaintiffs or the defendants under the rules that would apply were the cases being litigated one-by-one. Indeed, even as the Supreme Court has clamped down on personal jurisdiction in recent years, the personal jurisdiction exercised in MDL has avoided rigorous analysis for reasons that do not survive scrutiny.
The pervasiveness of MDL is particularly surprising giving the aversion of the U.S. Supreme Court, during the extended period during which it has had a conservative majority, to almost every aspect of class action lawsuits. 

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