By Peter Prieto and Benjamin Widlanski | April 20, 2021
When Congress passed the Multidistrict Litigation Act in 1968, no judge or lawyer today could have foreseen the extent to which MDLs would eventually dominate the federal docket. MDLs compose more than half the federal docket nationwide: the 185 MDLs currently pending represent more than 715,000 individual actions, with nearly a quarter of the pending MDLs involving more than 1,000 individual actions. While actions in an MDL are returned to their original courts for trial, the consolidation of pretrial proceedings in an MDL means that each discovery ruling, every order on a motion to dismiss, and any summary judgment decision, is binding on thousands of parties, both plaintiffs and defendants, involved in the case.
Why are MDLs and class actions so impactful, and what current issues should we be aware of That is part of what will be discussed at the University of Miami School of Law Class Action and Complex Litigation Forum Friday, April 23. The annual forum, now in its fifth year, features prominent scholars, federal district and circuit court judges, and distinguished practitioners from both sides of the table, discussing emerging issues in multi-district litigation, class actions and other complex proceedings.
The MDL mechanism provides efficiencies and value for all parties to litigation—not just the litigants, but the courts as well. For defendants, MDLs can greatly reduce the time and expense needed to litigate dozens, if not hundreds, or thousands, of individual cases. For plaintiffs, MDLs provide consistent rulings and allow for coordination of litigation strategies. For the courts, MDLs create economies of scale—instead of dozens of judges around the country reinventing the wheel, and possibly issuing inconsistent rulings, one judge can rule consistently on the sometimes complex and novel legal issues that are raised in class actions and mass tort cases found within an MDL.
Unlike MDLs, which, at their core, are merely procedural and administrative means through which already-filed litigation can be centralized and handled more efficiently, class actions inspire strong feelings from both supporters and detractors. Some praise class action litigation as a needed check on the excesses of corporate America—whereas an individual plaintiff could never obtain skilled counsel to litigate over a $5 injury, or even a $5000 injury, hundreds or thousands of similarly situated victims can obtain competent representation and, hopefully redress, through a class proceeding. On the other hand, critics pan class actions as spurious, and driven more by lawyers looking for significant fees than injured consumers. Regardless of the relative merits of each position, there can be no argument that class actions play an important and necessary role in contemporary litigation.
These two major types of complex litigation are the focus of this week’s forum. This year’s event, slimmed down from a day-long, in-person symposium due to the pandemic, features two panels on key issues. A panel on “Dos and Don’ts of Moving for and Defending Class Certification” features Judges Roy Altman, Beth Bloom, and David Proctor, in addition to practitioners, sharing their perspectives and advice on the class certification process. Because class certification is a make-or-break moment in Rule 23 litigation, with the potential to drastically shrink or exponentially grow the value of a case, a strategic approach is crucial for anyone litigating a class action on either side of the “v.”
A second panel on “Hot Topics in Class Actions and MDLs” will feature discussion among the Judges Amy St. Eve and Robert Dow; Vanderbilt Law professor Brian Fitzpatrick, and several practitioners. Some of the “hot topics” this panel will discuss include COVID-19 litigation and recent questions on standing and damages issues. One drawn-from-the-headlines topic relates to TransUnion v. Ramirez, for which the U.S. Supreme Court heard argument just a few weeks ago. The question in TransUnion is one that all class action practitioners are following closely: do class members have standing based on a statutory violation and risk of material harm when they have not suffered measurable economic damages?
Of particular interest to lawyers in the U.S. Court of Appeals for the 11th Circuit, the panel will also discuss the recent decision in Johnson v. NPAS Solutions holding that “incentive payments” for class representatives are impermissible. In Johnson, the 11th Circuit reversed the district court’s approval of a settlement over a class member objection to a $6,000 incentive award for the named plaintiff and held—based largely on 19th century caselaw—that incentive payments cannot be awarded. A petition for rehearing en banc is currently pending and, whatever the outcome, Johnson will have enormous ramifications for class action litigation.
Given the volume of controlling caselaw arising from large-scale litigation, including class actions and MDLs, all civil practitioners have a vested interest in understanding the major trends in the field that will be discussed at next week’s UM Law Forum.
Peter Prieto is a partner at Podhurst Orseck and leads the firm’s commercial and class action practice. Benjamin Widlanski is a partner at Kozyak Tropin & Throckmorton.
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