1. There’s No Place Like Home:
The Pros and Cons of Lexecon Waivers and Bellwether Trials in the Modern MDL

2. Creation and Mechanics of Multi-District Litigation

3. Creation of the MDL 1968 amendment to Judicial Code 28 U.S.C. §1407:
“[t]o provide for the temporary transfer to a single district for coordinated or consolidated pretrial proceedings of civil actions pending in different districts which involve one or more common questions of fact.”
Judicial Panel on Multidistrict Litigation (the “Panel”) oversees the process

4. The Panel: Composition and Power
Seven sitting federal judges
What does the Panel do?
Determine if cases involve one or more common questions of fact?
Select the judge and court
Can transfer on own initiative or by motion

5. Considerations Creating an MDL
Number of actions involved;
Size and complexity of the cases;
Whether parties agree that consolidation is appropriate;
Potentially conflicting class actions;
Danger of duplicative discovery;
Unusual need to expedite litigation; and
Conservation of parties’ resources

6. Considerations Selecting Transferee District and Judge
Location of evidence;
Place of tortious event;
Centrality;
Venue of pending actions;
Coordination with other state/federal proceedings;
Familiarity of forum with issues;
Overall docket conditions;
Preference of the parties; and
Lack of MDLs in that district

7. Recent MDL Trends Motions to Centralize
Granted Denied

8. Recent MDL Trends Types of MDLs Pending in 2015

9. Recent MDL Trends MDL Venues Created in 2015
31% (11) in the Midwest
Illinois, Indiana, Kansas, Minnesota, Missouri, Ohio
25% (9) in the West
Arizona, California, Oregon
25% (9) in the South
Alabama, Dist. of Columbia, Florida, S. Carolina, Texas, Virginia
25% (7) in the Northeast
Massachusetts, New Jersey, New York, Pennsylvania

11. Lexecon v. Milberg Weiss Bershad Hynes and Lerach (1998)

12. Lexecon v. Milberg Weiss Bershad Hynes and Lerach (1998)
Lexecon takeaways:
Court strikes down self-transfer process
Court says JPML must remand cases after pre-trial proceedings are complete
Lexecon workarounds?

13. Bellwether Trials

14. Bellwether Trials
Purpose?

15. Bellwether Trials
“Should I advise my client to waive Lexecon rights so that the case can be tried by MDL judge?”

16. Selection of Representative Cases?
Bellwether Trials
Selection of Representative Cases?

17. Bellwether Trials
Are they working?

18. Questions?