Article by Mark Herrmann and Pearson Bownas
Scant attention has been paid to a key criterion applied by the Judicial Panel on Multidistrict Litigation for transferring cases pending in multiple federal district courts to a single court for coordinated or consolidated pretrial treatment: the cases must share “one or more common questions of fact.” This Article traces the history of the Panel and the “common questions of fact” requirement back to their origins and then forward through the legislative process. This examination reveals that the “common questions of fact” standard arose before the 1966 amendments to Rule 23 of the Federal Rules of Civil Procedure that created the modern class action. The Article then identifies two problems that arise when the Panel applies a preamendment mind-set to modern class action cases.
First, the Article observes that the Panel sometimes uses a term of art from Rule 23—whether common factual questions “predominate” over unique factual questions. The Article analyzes the problems that the Panel's use of this term for centralization purposes creates for defendants involved in multidistrict litigation which includes (or may include) putative class claims. The Article explains that to prevent these defendants from foregoing the potential benefits of transfer and centralization, the Panel should avoid relying on the presence or absence of predominating (rather than just “one or more”) common facts as a ground for granting or denying a motion to centralize cases.
Second, by analyzing a recently decided case, the Article explains how the origins of the Panel and the “common questions of fact” standard cause the Panel to focus excessively on whether the common questions of facts are core liability issues subject to coordinated or consolidated discovery to be taken of defendants. The Article points out that cases, including putative class action cases, having other types of common factual questions, may benefit from centralization and coordinated or consolidated pretrial treatment as well. These other types of common factual questions include those affecting the plaintiffs' standing, statute of limitations issues, and defenses that may apply across-the-board to all plaintiffs' claims, such as federal preemption or the government contractor defense. The Article suggests that the Panel is missing an opportunity to promote the just and efficient conduct of cases having these other types of common factual questions.
About the Author
Mark Herrmann. Mark Herrmann is a partner resident in the Chicago office of the international law firm of Jones Day. B.A. 1979, Princeton University; J.D. 1983, University of Michigan Law School.
Pearson Bownas. Pearson Bownas is of counsel resident in the Cleveland office of Jones Day. B.A. 1994, Miami University; J.D. 1997 Loyola University Chicago School of Law.
Citation
82 Tul. L. Rev. 2297 (2008)