MULTI-DISTRICT LITIGATION REFORM
Multi-district litigation (MDL) has received significant attention in recent years for several reasons. More than half of all federal civil cases are part of MDL proceedings, which collect related cases in a centralised proceeding before a single federal judge. As MDL proceedings have skyrocketed, so too has the potential for abuse. Many observers note that such proceedings have served as a magnet for claims that lack merit, as plaintiffs’ lawyers believe that claims that are part of an MDL proceeding will not receive the sort of scrutiny that they would if filed individually.
Estimates indicate that on average 30 to 40 percent of the cases that are filed in MDL proceedings will never obtain recovery, even where there is a global settlement of the litigation. Such claims fail to meet even the basic requirements to receive compensation under settlement terms, never mind having any chance of success if the claims were litigated in an adversary proceeding.
Accordingly, there have been several proposals for reform of MDL proceedings to address these perceived problems. These include proposed changes to the statute governing MDL proceedings, which are currently pending before Congress. They also include proposed changes to the Federal Rules of Civil Procedure, which are currently being debated by the Civil Rules Advisory Committee. In addition to these proposals for formal revision of the rules governing MDL proceedings, there have been a number of attempts to issue guidelines outlining best practices in MDL proceedings, such as the guidelines issued by Duke University School of Law’s Bolch Judicial Institute.
Jan-Mar 2020 issue
Kirkland & Ellis LLP