SOUTHEAST TEXAS RECORD

By AMANDA ROBERT

LOUISVILLE, Ky. (Legal Newsline) – As chairman of the U.S. Judicial Panel on Multidistrict Litigation (JPML), Judge John Heyburn leads six other federal judges in determining whether individual cases involving similar issues should be centralized in one federal court for pretrial proceedings.

Heyburn, who sits in the U.S. District Court for the Western District of Kentucky, was appointed to the JPML by U.S. Supreme Court Chief Justice John Roberts in 2007. Since then, he said he has become fascinated by the interaction between his colleagues and the issues that appear before them. He estimates that the panel centralizes about 60,000 of the nearly 280,000 civil cases in the federal judiciary.

He recently discussed the JPML and its approach to centralizing multidistrict litigation (MDL) cases with Legal Newsline.

How would you describe the JPML’s purpose?
Our purpose is to see whether by centralizing cases we can provide greater efficiencies and consistency in rulings, and save resources for plaintiffs and defendants and for the judiciary.

Why do you think the MDL process works?
No. 1 is the talent on the panel itself. It’s the experience of all the judges, both in private practice and as judges, and the fact that we really talk about the issues and try to reach the best decision.

And second is the incredible dedication of the transferee judges. The experience they have, and the hard work they put into cases, is quite an amazing thing. They take on these cases without any additional pay or reduction of their other caseload. They do it because they want the challenge.

How do you decide which judge gets a new MDL?
We like to pick a judge who already has a case, because they’re somewhat experienced with it. And, they can try at least that one case if they have to, because it’s their case. We like to pick where it’s convenient for the lawyers and the parties of the case. And also, we like to have, depending on the complexity, a judge who is capable of handling it and has some experience in that area.

But every case is different. What if we have the ideal judge but that judge already has three MDLs? They just can’t handle another one. Usually we have two or three judges who are perfectly acceptable, and we’re picking among a variety of choices.

Also, a lot of our cases could be centralized in New York City or Los Angeles, but we can’t send every case there. So sometimes we’re looking to spread the cases around. We know there are certain financial cases and cases involving the Internet and other new technology that may go out to California. Certain securities litigation may be centralized in New York. So when you have other cases where you could go to New York or you could go somewhere else, we may send it somewhere else.

Have you seen changes in the MDL system in the past five years?
The system works better, but the dynamics of what is going on has changed quite a bit. No. 1, new statutes can affect our workload. There have been some new statutes having to do with data security and privacy, so we’ve had an uptick at various different times in those cases. We’ve had changes in the law in securities cases and that’s changed a number of those cases. We’ve had a recent change with the America Invents Act, which changed the way patent litigation is conducted. So we’ve had an uptick in patent cases. As a general matter, there have been a number of decisions the Supreme Court has issued that made it somewhat more difficult to obtain class certification in various kinds of cases. As a result, some lawyers are looking for an alternative. If you can’t have a class action, aggregating cases has some of the same benefits.

We’ve seen some change in the way defendants and plaintiffs look at the cases. It used to be that multidistrict litigation and the panel centralizing cases was chiefly seen as a benefit to the defendant. If you have 100 cases being filed, it’s easier to litigate them in one place than a hundred, right? A lot of defendants still look at it that way. On the other hand, in various cases defendants say these are 100 lousy cases, if we centralize them all, it makes one big case. Similarly, it seems like there are more plaintiffs who see under certain circumstances that they can benefit from the centralization if they can be named to the lead counsel. Some plaintiffs don’t like that because they think they can try their case in their own home district. They don’t want to be part of a centralized case. So you have some conflict between lawyers.

One common thought is, well, there are certainly a lot more MDL cases now. That’s not necessarily true. The number of cases we have received and the number of MDLs we have created has really leveled off in the last three years. On our docket three or four years ago, we had 320 MDLs. Now we’re down to about 280. That’s probably because we’re becoming more efficient. The judges are becoming more efficient in handling them.

What improvements do you expect to see moving forward?
A couple of years ago, we interviewed about 100 lawyers who have been involved in our process. The next thing is to see if we can do research that helps us in our decisions. So, looking at cases that have been centralized and how efficient were they. This will help us not only in our decision-making but also in advising the judges on, here are things that worked and here are things that didn’t.

After a case is closed, we talk to a lot of the transferee judges, and we ask them, was it a good idea or a bad idea that this case should be centralized? For the most part, they say, this was definitely a case that needed to be centralized. But on occasion, they say this case was more complicated because of this reason or that reason, and if it ever comes in again, you should think about treating it in a different way. We learn a lot from hearing what they have to say after the fact.