AbstractIn federal multidistrict litigation (MDL), district courts regularly appoint attorneys to manage the litigation of cases that are transferred to a single district court for coordinated pretrial proceedings. Orders appointing MDL leaders serve as a constitution or charter for a particular MDL, reallocating functions that otherwise would be performed by individually retained plaintiff’s attorneys to court-appointed leaders. As such, they perform a crucial role in the “MDL model” of aggregate litigation and settlement. Yet in spite of their importance, knowledge of these orders is mostly folk wisdom.
This Article, prepared for the Pound Civil Justice Institute symposium on "Class Actions, Mass Torts, and MDLs: The Next 50 Years," presents preliminary findings from a study of leadership appointment orders in all MDLs pending in the federal courts in June 2019. The principal finding is that, while leadership appointment orders are a standard feature of contemporary MDL, they vary significantly in how they structure plaintiff’s leadership, the functions they assign to court-appointed leaders, and how orders conceive of the relationships among court-appointed leaders, non-lead attorneys, and MDL plaintiffs. These findings shed light on debates over the nature of contemporary MDL, the duties court-appointed leaders owe to non-client plaintiffs, and the costs and benefits of MDL’s dependence on decentralized, ad hoc procedure-making.
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