Direct Filing+Choice of Law in Multidistrict Lit.

[Andrew Bradt]

The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation

Andrew Bradt

University of California, Berkeley--School of Law

July 26, 2012

Notre Dame Law Review, Vol. 88, 2012-2013
UC Berkeley Public Law Research Paper No. 2118219

Abstract:
The amount of multidistrict litigation (MDL) in the federal courts is skyrocketing, particularly in the areas of mass torts and products liability. One significant reason for the explosion of MDL has been the difficulty of maintaining nationwide or multistate class actions in these areas, due in large part to the choice-of-law problems created by operation of many different states’ laws to plaintiffs’ claims. One comparative benefit of MDL is that individual cases within the consolidated pretrial proceedings retain their “choice-of-law identity” — that is, that transfer of a case into a pending MDL does not change the choice-of-law rules that would otherwise apply to a plaintiff’s case had it proceeded in its original home forum. In other words, the case carries the choice-of-law rules of the original forum state with it into the MDL. Because MDL is purportedly a consolidation only for pretrial proceedings, unlike a class action, the application of different choice-of-law rules to different plaintiffs’ claims does not render the MDL proceeding itself infeasible. This framework, however, is in disarray due to the advent and increasing popularity of a practice called “direct filing.” In direct filing, plaintiffs bypass the transfer process and file their cases directly into an MDL court. Amid the growing popularity of this practice, the question of what choice-of-law rules ought to apply to direct-filed cases has been left unaddressed. This paper seeks to expose and resolve the problem by permitting direct filing, but requiring plaintiffs to declare a proper home district whose choice-of-law rules would apply to their claims. Such an approach would both preserve the efficiency benefits of direct filing, and be consistent with the values of federalism and litigant autonomy underlying the choice-of-law framework in diversity cases.

papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID2118219_code1472267.pdf?abstractid=2118219&mirid=1