Category Archives: Multi District Litigation

The Growing Role of ADR in Multidistrict Litigation

Posted on by Chris Poole

The Judicial Panel on Multidistrict Litigation (MDL Panel) considers for consolidation and transfer the most complex federal cases. In 2011 alone, it reviewed more than 43,750 cases and considered motions for centralization in no fewer than 400,000 matters. Established in 1968, the MDL Panel determines whether related civil cases pending in different federal courts should be transferred to one district court for coordinated and consolidated pre-trial proceedings. The result is a more efficient handling of pre-trial processes that eases the burden on crowded federal dockets.

Alternative dispute resolution (ADR) is playing an ever-increasing role in  MDL cases. Many cases routinely settle while in the transferee courts, with parties engaging special masters, arbitrators and/or mediators.  But ADR is proving useful in many other situations. ADR providers are assisting MDL judges not only in settlement discussions, but also in pre-trial proceedings. This occurred, for example, with the Toyota unintended acceleration case, in which several neutrals have assisted in discovery and related issues.

There is also a case to be made for an even bigger role for ADR in helping to streamline MDL cases. Settlement conferences, for example, could be useful in resolving disputes unique to some of the individual claims transferred by the MDL panel while the transferee court handles the larger common issues.

ADR processes can also run in parallel with proceedings at the district court level. Parties in complex cases often create a national settlement team with the sole job of resolving the litigation. That team usually includes an experienced lead counsel whose only focus is settling the case. The settlement team works closely with both trial and in-house counsel to learn the case and develop strategies for settling the case. The process can be especially useful in focusing discovery, which is often the most expensive aspect of litigation.

It is likely that MDL matters will only increase in numbers, and ADR processes such as the use of special masters and mediators  can and should play a central role in streamlining and resolving these complex cases.

MasterCard, Visa Settle Historic Price Fixing Case

Posted on by Chris Poole

Credit card companies and the banks that issue the cards have agreed to pay merchants nearly $7.25 billion to resolve dozens of lawsuits filed by retailers in 2005. The settlement includes at least $6.05 billion in payments to some 7 million merchants for past damages and an eight-month reduction in fees valued at $1.2 billion.

The pact is potentially the largest antitrust settlement in U.S. history.

Additionally, Visa and Mastercard will reduce “swipe fees” – fees paid by merchants to issuers when cards are used – while they implement new rules for such transactions. The changes will likely go into effect in 2013.

If approved, this settlement will represent the largest ever recovery in an antitrust case and will be the second largest class action settlement ever.

To read more about the settlement, please click here for the USA Today coverage, here for CNN coverage or here for Reuters coverage.

Settling Multidistrict Litigation

Posted on by Chris Poole

Kim Taylor, Esq.

Kimberly Taylor is the JAMS COO and oversees JAMS operations in the United States. Working directly with the President and CEO, and leading a team that spans 25 resolution centers across North America, Taylor is responsible for the company’s day-to-day operating activities.

Cathy Yanni joined JAMS in 1998 and her practice includes mediation, Special Master/Discovery Referee, arbitration, and class action and multi-district litigation (MDL) settlement administration.

Cathy Yanni, Esq.

As cases become more complex and wider-reaching, creating a resolution strategy at the beginning of a dispute can save time and money before litigation costs mount. Though 95 percent of cases settle before trial, the eventual settlement typically takes place following numerous hours and dollars spent preparing for litigation.

Take for example when a corporation has been sued in a variety of jurisdictions. The cases are consolidated into a multidistrict litigation (MDL), which is a federal procedure designed to consolidate and process complex cases. Typically one federal judge is assigned by the U.S. Judicial Panel on Multidistrict Litigation (MDL Panel) to coordinate cases spread out across the country. The purpose of this centralization process is to avoid duplication of discovery, to prevent inconsistent pretrial rulings and to promote efficiency for counsel and judges.

Transferred actions not terminated in the transferee district are remanded to their originating transferor districts by the Panel at or before the conclusion of centralized pretrial proceedings.  Generally, the appointed MDL judge oversees the settlement process, creating it in conjunction with the plaintiff steering committee, the defendants’ settlement counsel, and a settlement special master or mediator.

A key part of settlement strategy for the defense is to create a national settlement team whose sole job it is to resolve the litigation. The settlement team needs a lead counsel whose only focus is settling the case. They should be a respected trial attorney with knowledge of the mediation process, the ability to work effectively with plaintiffs’ counsel, and great perseverance. Settlement counsel will work together with both trial and in-house counsel to learn the case and strategize for settlement. With an overall settlement strategy in place, discovery (often the most expensive aspect of litigation) can be focused on key issues.

Many courts will appoint a mediator or mediation panel to help the parties resolve the cases in coordination with national settlement counsel and a plaintiffs’ steering committee.

The mediator who is assigned to the litigation develops a deep understanding of the issues and knowledge of settlement values for the individual claims. Some judges take a very active role in resolving their assigned MDL matters, holding mediations at the courthouse with the assistance of the mediator. There are many paths to coordinating mediation. The mediator can work with individual firms to settle cases individually or in a pool, and can also work with the plaintiffs’ steering committee to resolve cases on a global basis.

Having a well coordinated litigation and settlement team with a succinct strategy for settlement is a cost effective and efficient process for resolving MDLs.