- I hope you all had a good lunch,
and we're ready to
start on our next panel.
This is a panel on
jurisdiction and choice of law,
and it's going to be
moderated by Troy Mackenzie.
Troy is also a member of our faculty,
co-director of the
Center on Civil Justice.
He's been very, he took a leave of absence
to go to Washington D.C
for a couple of years,
but he's now back with us,
and we're very thankful for that.
And I think you all know that Troy is
a brilliant expert in civil procedure
and complex litigation, and
specializes in bankruptcy.
And Troy, I'll turn it over to you.
- Thank you very much
for that introduction.
Not just an expert,
but a brilliant expert.
- It does say brilliant in my notes.
- Oh, oh, excellent.
- That was improvisation.
- Improvisation, jazz, there we go.
- Well that's what you want.
- That is what I want.
Well everyone, this is a panel
that is somewhat different
from this morning's panels in that
we are going to be talking about
a particular topic, a
procedure heavy topic,
in a way that might, at first,
seem narrow and doctrinal
but will open up a broader discussion
about the dynamics of aggregate litigation
in light of changes in the law
driven by Supreme Court decisions.
So our title is Jurisdiction
and Choice of Law.
These are not narrow topics,
but we are going to try to focus them
during this discussion.
I'm gonna start out just
by giving a little bit
of a minor overview of where we are
and why we're here.
As you probably know, in the last,
between 1990, and for the next 20 years,
the Supreme Court paid
essentially no interest at all
to personal jurisdiction.
It was not a topic the
court seemed to have any
interest in deciding.
Conflicts, choice of law issues,
similarly not much activity at the court.
And then, starting in 2010,
the court has taken a number
of cases in this area,
and in particular, the court has decided
several cases in the personal
jurisdiction area that,
for those of us that teach in this area,
are significant and perhaps
increasingly significant.
Both decisions involving
general personal jurisdiction,
and specific, and what
specific jurisdiction means.
And at least a couple of
these cases have involved
the type of structure of litigation
that is most of interest to us today.
So I'm gonna begin by
turning to Robin Effron,
who will talk about development in the law
of specific and general
personal jurisdiction
over the last few years,
up to the Bristol-Myers Squibb case.
- Okay, so, thank you very much.
So my job is, my
assignment is to talk about
the background and the
developments in the law.
But I figured that this
is a room full of people
who are pretty up to date
on at least the basics
of personal jurisdiction.
And I'm also told that someone
has been assigned to respond to me,
so I feel like I should say
something mildly provocative
so that there's actually
something to respond to.
- Abolish personal jurisdiction.
- Abolish personal jurisdiction,
and ICE, at the same time.
(laughter)
All right, so now we've
covered everything.
Okay, so, before 2011,
the world of general
jurisdiction seemed fairly clear,
if fuzzy around the edges.
The understanding was that there was
general doing business jurisdiction
=such that assuming one had
the proper long-arm statute
coming from a state,
that if an entity was
doing enough business
where it's systematic and
continuous business in a state
that they would be subject to
general jurisdiction there.
Specific jurisdiction had splintered
into all manner of avenues
depending on what kind
of claim was at stake,
what kind of case.
It's sort of the biggest
open question before 2011
was the stream of commerce
question from Asahi, right.
What level of purposefulness,
or foreseeability,
or directed activity, was
necessary to our statement
and that's a case that is
especially meaningful here
since so much of what we're talking about
involves products or products liability.
And so things change in 2011.
And I'll talk a little bit about
sort of the new general jurisdiction
and then specific jurisdiction.
So first in Goodyear, which was in 2011,
and then a few years
later in the Daimler case,
the Supreme Court really
narrowed general jurisdiction.
So the idea of general
doing business jurisdiction
as a constitutional basis for
personal jurisdiction was gone
and now we have the
essentially at home test.
What the court gave us was
a test in which they said,
you really have to be essentially at home,
and that doesn't just
mean doing a lot of stuff,
or selling a lot of stuff in a state.
We're looking for something that is
more or less corporate headquarters
or the state of incorporation,
something that was gonna map roughly
onto the Hertz case from
subject matter jurisdiction,
although they were careful to tell us
that these were not gonna be synonymous.
And so, this narrowing
had a number of effects.
One, and I think that
Justice Ginsberg's maybe intended effect,
although certainly not the outcome,
was to put more pressure
on specific jurisdiction.
The idea being that general jurisdiction
was too broad and too all encompassing,
and that it was better to
sort of tie jurisdiction,
in most cases, to the
actual case or the claim
and not just have these
large swathes of the country
where people or entities
could be subject to general jurisdiction.
Of course, that didn't really happen.
Another thing that sort of comes out of
narrowed general jurisdiction
that I want to put a
pin in for purposes here
is that every time we
narrow the availability
of states as being a place
where maybe any type of
claim can be brought,
it becomes harder and harder
to find a single forum
where a plaintiff might
sue multiple defendants.
So, I think some of that
will come up a little bit later
in some of our other panelists talking,
but I'll just sort of put like
a Post-it note on that now
that narrower general jurisdiction
is gonna start to become problematic
when you're adding certainly
lots of defendants to cases,
and also possibly many
plaintiffs or claimants as well.
And then another thing
that happened is that
in the wake of general
jurisdiction being narrowed,
there's been a real resurgence in interest
on registration statues.
So, registration statues
go all the way back, right,
to sort of the beginning of time.
And if you teach civil procedure,
time obviously begins
with Pennoyer versus Neff.
So these registration
statues are state statues
that say if a foreign corporation,
meaning a corporation or an entity
not organized under the law of that state,
registers to do business in the state,
and by the way, we might really make you
register to do business here,
or all sorts of other
consequences will follow
that you appoint the secretary of state
or some other official as your
agent for service of process.
And some of these registration statutes
are general jurisdiction in nature
and some of them are specific in nature.
And so for a very long time,
as long as general doing
business jurisdiction
was available to sort of
capture the activities
of larger defendants,
and specific jurisdiction
would sort of capture
a lot of other things that were going on
where there was a more obvious
connection with the forum,
these registration statutes
maybe weren't so important.
Maybe they were used from time to time,
people thought about them,
they were a footnote in a case book,
but it wasn't something
that people were focused on.
Now this has become an opportunity
for thinking about could this be
an adequate substitute for
general jurisdiction, right,
could we sort of have a back door
to general jurisdiction over entities
by looking at registration,
and saying, oh, actually,
you've consented to be sued here
and to be sued here for anything,
whether it is related to your activities
within the forum state or not.
And, you know, with
what little time I have
I'll just sort of throw out there
the many problems that
people have suggested
with registration statutes,
that there's a question about whether
this form of consent should
also have to come along
with minimum contacts or not, right,
that's an open question.
And there are some other questions too.
For example, we run into issues
elsewhere in the Constitution
on constitutional conditions,
and whether this is sort of
a restriction on interstate commerce.
One thing I also want to
kind of point out is that
this idea of consent, which
people might be worried about,
we could set alongside some
of the recent jurisprudence
in forum selection classes,
which the court has been
very enthusiastic about,
the idea of looking at consent to a forum
as trumping a lot of other considerations.
Now, in the Atlantic Marine case
that is a part of selection class.
It's a contract entered
into by two private parties.
I imagine that many people and the court
would think differently about consent
when it is a matter of implied consent
and the parties are the
state and a private party
instead of two private parties.
But again, that's just
something to think about.
So, specific jurisdiction
didn't so much change as it did
take a turn and just become
increasingly unclear,
right, with the J. Mcintyre case.
There was no majority in that case.
I remember even before it came down,
people were excited,
they were already scheduling symposia.
- Who were these excited people?
- This group of people right here.
- Thank you, yes.
- I think that was around the same time
that some of like the ACA
litigation was going on
and all of my normal friends
were excited about, like, healthcare,
and I was really excited
about personal jurisdiction.
When the case came down,
I remember I asked Adam, I was like,
what are you even going to write about?
And I believe Adam's answer
was, "WTF J. Mcintyre."
I so believe you should have
written an article with that title.
- That one is forthcoming.
- That one is forthcoming.
So, J. Mcintyre, right,
there's no majority opinion.
The court can't agree on a rationale.
And the thing that I want to sort of,
there's so much to be said
about specific jurisdiction,
and I theoretically only
have three minutes left here.
So what I want to point out
instead of kind of taking everyone through
the slog of, you know,
this test and that test,
is that what we have
seen with J. Mcintyre,
and then some of the
cases that came after it,
like Walden, Bristol-Myers Squibb,
which we'll hear about in a minute,
is an increasingly
formalist turn by the court.
So, even if I think it's somewhat unclear
exactly what the tests should be
or how they should be applied,
I think it is the case that
more members of the court than not
are interested in very
formal understandings
of specific jurisdiction as
being tied to territoriality,
and sovereignty, and again,
returning to the beginning
of time with Pennoyer.
And what this leaves out
are other considerations
that used to have more prominence,
even if people couldn't
agree on what they meant.
So, for example, the
extent to which litigation
is burdensome on the defendant.
And by burdensome I
mean actually burdensome
and not just psychologically burdensome,
which is what it's become now.
Whether it is something in which
the plaintiff's interests
should play some role,
what the forum's interest
is in that case, right,
all of these have taken a
backseat to this formality.
Or, I'm sorry, this formalism.
And I think the reason that's
particularly significant
when we're sitting in a room
talking about MDLs is that
MDLs, I think a lot of
the panels this morning
were really focused on this,
MDLs are anti-formalist, right.
You heard that whole
discussion this morning
where there's a lot of tension between
people who say why don't we
have more rules for MDLs,
the rules we have, we
don't know what they say,
and then other people,
and I think sort of the dominant narrative
from some people this morning saying,
we don't want or need more rules for MDLs.
The hallmark of MDLs
is judicial management,
and each case being different,
each MDL being different,
taking things as they come.
And so, you know, I guess I
could say more about this in Q&A
but for now I just want to tee up
what I see as a little
bit of a collision course
between the real return to formalism
in personal jurisdiction doctrine
versus the much more functional approach
that we've seen in MDLs,
and whether the push for more rules,
and more written rules in MDL
is actually part of sort
of a larger turn in the law
that we can see reflected
in jurisdiction too.
- So, Robin, I have a very
quick question for you
before I turn to Linda.
It seems to me that when
looking at the specific,
and actually the general
jurisdiction cases
up to Bristol-Myers,
it's not clear to me that
the court is thinking about
any of what we've been talking about.
The court is not thinking
about the treatment
of complex litigation
within the United States.
Mcintyre, overseas
defendants, US plaintiff.
Goodyear, overseas
defendant, US plaintiff,
overseas conduct accident.
Daimler, foreign plaintiff
and foreign defendant,
foreign conduct.
The turn towards that kind
of territorial formality,
I think I know why the court
is moving in that direction
because they're not thinking
about these types of cases,
but of course, the law the court develops
in these cross border,
extraterritorial type cases
is law that will end up
having an effect on the ground
in purely domestic cases as well.
- And somebody, a few people have written,
one person actually wrote an article
with the title outlier cases.
And I think that that's very true.
I think these sort of
outlier fact patterns,
and certainly fact patterns
with foreign defendants
and foreign conduct have
driven a lot of the analysis,
but when they haven't, they're
sort of weird fact patterns,
like the BNSF case which was about FELA.
That's just not a statue
that is invoked very often
in the regular run of cases,
unless you're an employee of a railroad.
So it's true that these
sort of outlier cases
have driven the discourse.
I don't think they're thinking about that.
I think the other problem is they think
that they know what
they're not thinking about,
and that might not be the right answer,
and that's the internet, right.
So you can see that in
some of the opinions.
They're like, I don't want to say too much
because this isn't about the internet.
I think there's this focus, this idea,
that they're gonna say something,
it's going to affect cloud jurisdiction,
that's going to mess everything up,
when in reality they're missing, like,
a really big piece of litigation
that is actually before them,
which are real things
happening to real people.
I would also, sorry to take
up more time, just point out,
that in some ways these are outlier cases
and in some ways they're not.
So, J. Mcintyre, right,
they set it up like
there's this foreign manufacturer,
and they have this strange
way of doing business
where they sell things to a distributor,
who sells them in the United States,
as if that isn't how almost all products
get into the United
States and are sold here.
I teach international
business transactions
as well as civil procedure,
and I remember reading that case,
and I'm like, do you understand trade?
- Like this is not some...
- No.
This is not some bizarre
business arrangement
that we're trapping just J. Mcintyre in.
This is how products get here.
And so, I think there is
a lack of understanding,
not just about aggregated litigation,
but just about the relationship of people,
products, defendants, and other claimants.
- So, now I'm going to
turn to Linda Silberman,
who will take us from
Bristol-Myers Squibb forward.
- Thanks, Troy.
I just want to say, I
think you are quite right
to say that the court isn't thinking about
nationwide class actions when
they did any of these cases
because in the era of
general jurisdiction,
the jurisdictional issue was
not really a big problem.
And as you move to specific jurisdiction,
it isn't a very good
fit for class actions,
and that's why we are left
with all of these questions
after the Bristol-Myers case.
In the Bristol-Myers case, and let me just
give a quick factual review of it,
the plaintiffs from various
states had purchased drugs
from a Delaware corporation
headquartered in New York
with its principle place of operations
in New York and New Jersey
but it had extensive business
activities in California.
California residents who purchased
their drugs in California
and suffered their injuries in California,
and then residents of other states
who purchased their drugs
outside of California
and were injured outside of California,
brought their product liability suit
in California state court.
The California Supreme Court
upheld jurisdiction over Bristol-Myers
with respect to all of
these plaintiff's claims,
characterizing even the claims
brought by non-California purchasers
of giving rise to specific jurisdiction.
At the time it probably didn't
seem very strange at all
because there would have been
general jurisdiction in California.
But general jurisdiction is
now gone, as Robin explained.
So the California majority
describes the claims
by both the California and
non-California plaintiffs
as based on a single,
coordinated nationwide course of conduct,
and they said even these
claims of the non-Californians
arise out of or relate to
the California activities.
And they say this is a kind of
sliding scale of general jurisdiction
and they conclude that all of these claims
have a substantial
connection to California,
and either relate to or arise
out of the activities of BMS.
The dissent disagreed,
stating that these are
really parallel claims
and that the majority had undermined
this relatedness requirement
that we've always had,
and is the essential distinction
between general and specific jurisdiction.
The Supreme Court grants certiorari
reverses an eight to one
opinion by Justice Alito,
who rejects any sliding scale,
criticizes the California Supreme Court
for blurring these quite
distinct lines between
the kinds of things that are necessary
for specific jurisdiction,
and in confirming that
there is a strict line
between general and specific jurisdiction.
They say what you need is an adequate link
that must exist between the specific
claims that are being
asserted and the forum.
Now, Justice Sotormayor dissented.
On the issue of relatedness, she says,
the fact that the injury
arose outside of California
doesn't mean that these
claims didn't relate to
the sort of advertising and
the distribution efforts
that Bristol-Myers had
undertaken in California,
and she was particularly concerned about
the piecemeal litigation that's created
by the fact that multiple plaintiffs
may not be able to join their
claims in a single action.
Now, of course, plaintiffs
with multiple claims
can join together in a forum
where the defendant is at home,
and therefore the plaintiffs
could have brought their
claims in Delaware or New York.
Prior to Dengler, they could
have brought them in California
and probably in many states
in the United States.
And in fact, the Bristol-Myers plaintiffs
had actually engaged in a
deliberate forum shopping strategy
by structuring the lawsuit
first to keep the case
in California state court
by joining a local defendant
and limiting the number of plaintiffs
to fewer than a hundred
to avoid a mass action
getting removed under CAFA.
They tried very hard to keep
this case in state court.
I just should point out that
if they got into federal court,
it wouldn't have made any difference
in terms of the jurisdictional reach.
Now, there's Justice
Sotomayor's famous footnote
for in her dissent, in
which she raises this issue
of nationwide class actions.
And she asks whether a
plaintiff in a forum state
would be able to represent a
nationwide class of plaintiffs
who are injured elsewhere.
The majority, I think it's fair to say,
doesn't really address the point,
although Justice Alito said,
Bristol-Myers concerned
the due process limits
of the exercise of specific
jurisdiction by a state.
And, at least he says,
leaves open the question of
whether the Fifth Amendment
imposes the same
requirement of the exercise
of such jurisdiction by a federal court.
Now, I find that statement puzzling
because although the Fifth
Amendment has been interpreted
to permit context with the
United States as a whole,
the reach of the federal courts
has traditionally depended
on a federal statue
or a federal rule in the first instance.
And maybe at the end of the day,
that is one of the solutions,
but I'm not sure it's just
sort of the Fifth Amendment
operating on its own.
Now, there are a variety
of different scenarios
that have confronted courts
looking at what the
impact of Bristol-Myers
is on federal class actions.
And they've come up with a variety
of different rationales
for their conclusions.
So let me start first
with named class members.
So, the question is whether
each named class member
must have specific jurisdiction
over the defendant.
Remember, Bristol-Myers is a joinder case,
not a class action.
But the district courts have found
that the situation for named plaintiffs
is much the same as Bristol-Myers.
It's very much the same,
and each named plaintiff has to satisfy
the constitutional requirements
to assert jurisdiction over the defendant.
The one exception is
maybe a second case now,
which involved resident
and non-resident plaintiffs
asserting a federal claim
and various state law consumer claims
on behalf of a nationwide class.
And although Sloane I
think is an outlier case,
it does offer some additional theories
to justify jurisdiction on
behalf of the named plaintiffs,
and they at least were thinking about
in thinking about ways
that one might avoid
the impact of Bristol-Myers.
They first suggest,
because this case involves
a federal question case in federal court,
although I point out,
not a case where there
was nationwide process.
Court says the due process
analysis does not incorporate
what they characterize as
the interstate sovereignty concerns
that animated Bristol-Myers.
And they point to
language in Bristol-Myers
that focused on the fact that a defendant
was having to submit to the
coercive power of a state
that may have little legitimate interest
in the claims in question.
So it was the notion that the state court
was exercising jurisdiction.
And in the present case,
because the case was a federal court,
it thought that this risk
of exceeding the bounds
of state sovereignty was not at stake.
Second, although the court acknowledged
that there was no independent connection
between the out of
state plaintiff's claims
and the defendant's California context,
it believed that they
could use the concept
of pendent personal jurisdiction
and they could extent it
to reach named plaintiffs
who have state claims.
So, the named plaintiffs
had federal claims,
but these other plaintiffs also had,
these other named
plaintiffs had state claims,
and they thought that they
could use this doctrine
to have a pendent process concept.
And finally, as a matter of policy
the court said that we ought
to avoid piecemeal litigation.
So they thought that this
federal question case,
even without nationwide
jurisdiction, would work.
There's a later MDL case
that deals with this issue
in the transferor court,
and there, the plaintiffs
had a nationwide process,
and then they joined other
out of the state plaintiffs to that claim.
So let me then turn to the
question of unnamed plaintiffs,
that is absent class members,
where I think the results in
the lower courts are mixed.
A number of courts have held
that the requirement of
independent personal jurisdiction
over the defendant doesn't
reach absent class members.
And why is that?
It's because in other contexts,
non-named class members
are not considered parties.
And there are a number of
cases including the issue
of subject matter
jurisdiction and diversity,
so they don't count.
So, if unnamed class members
are not considered parties,
then jurisdiction over the
defendant is only required
with respect to the named representatives.
But, the question left open
maybe to be decided at a later stage
is whether the named class plaintiffs
will then be able to meet all
of the rule 23 requirements
of adequate representation, typicality,
predominance, and superiority,
in order to certify a class
of out of state absent class members
where applicable law
issues, among other things,
might create obstacles.
And explaining why absent class members
in a punitive class action
should be treated differently
than named plaintiffs in a mass tort,
which was Bristol-Myers,
one court noted that a case only qualifies
for class action treatment
after it meets the rule 23 requirements
of numerosity, commonality, typicality,
adequacy of representation,
predominance, and superiority.
And they say look at that.
You have to satisfy those elements,
and they provide the
due process safeguards
that we did not have in
the mass tort context
of Bristol-Myers.
And also, as another court pointed out,
the economies achieved by
aggregating claims under rule 23
are completely compromised
if a court in a class action
has to ascertain whether
specific jurisdiction
has to be asserted over each
absent class member's claim.
Now, a number of courts
have taken the position
that what they should do
is they should wait until
a class is certified
to even reach the personal
jurisdiction case.
And in one such case,
there were New Jersey and
Pennsylvania residents
who had brought a nationwide class action
against a California
corporation in New Jersey,
alleging claims under,
I think, New Jersey,
Pennsylvania, and California
state consumer fraud statutes.
The court dismisses the named plaintiffs
but retained the claims of
the named New Jersey plaintiff
and then the rest of the class members.
And with respect to the
non-named class members,
the court said because the class members
are not yet parties to this case,
and they may not be,
absent class certification,
I'm not gonna look at
specific jurisdiction.
At the same time, they
noted that the ability
of the named New Jersey plaintiff
to represent non-New Jersey class members
was likely to depend on the
choice of law determination.
So, if they used California,
which was the home state of the defendant,
then they could represent everyone.
But if New Jersey law was gonna apply,
they could not.
I just should say other courts
have taken a different view.
They have said that this case
is very much like Bristol-Myers
and that the certain kinds
of forum shopping concerns
that were expressed in
Bristol-Myers applied
equally here.
The last point, and I have
just a couple minutes I see,
was this issue of the Fifth Amendment.
And the courts, a number of courts
that thought this was not different said,
look, in cases where
it's based on diversity,
it's the 14th Amendment
that it is important.
To close, let me just say that
with respect to the MDL actions,
it seems to me that the MDL
may, as a result of all of this,
be quite attractive.
And that is because the jurisdiction
will be determined in
the transferor court.
And so, if you have
sort of separate actions
in the individual court and
they are then transferred,
you may be able to have single,
specific jurisdiction cases
then moved to the MDL.
And I think Teddy and
Andrew will address that.
- Thank you, Linda.
One thought about that though is,
you know, class actions
and MDLs are sometimes,
you know, the MDL might
be the holding place,
and then the product is
maybe a class action.
You can certify a nationwide class action
and resolve the litigation that way.
And you still might
have these BMS concerns
that might either cut off or limit that
as the end procedure or mechanism
for tying up the litigation.
I know there are several northern district
of Illinois cases that take the view
that BMS applies with respect
to the absent class members.
And if you're trying to
certify a nationwide class
in order to resolve a major litigation
that has been consolidated through an MDL,
then maybe you can't.
Maybe you have to take
some other approach,
and some type of aggregate settlement,
or quasi class action, or something else.
- Maybe, and the other
thing just to point out is
when you think about CAFRA, for example,
it's enacted before Daimler.
And when you look back and you see
there's no nationwide
jurisdiction in CAFRA, why not?
Because they probably
didn't think they needed it.
And maybe now they do.
- They might.
- So at this point we're going to turn
to the heartland questions
of how all of this affects the MDL process
and strategic considerations
by lawyers in MDL litigation.
And I'm gonna turn it over to
Andrew Brett and Teddy Rave,
who are going to flip
coins for the discussion,
are gonna go back and forth, I'm not sure.
- Andrew can go first.
- I'll start, and I'll pass the time.
- That's very generous of you.
- Of me?
- No, I mean of Teddy.
(laughter)
- That's the way it usually is.
- All right, well, thank you, Troy.
I'm gonna talk about personal jurisdiction
and multidistrict litigation together.
And some of the challenges
that this new case law
in personal jurisdiction poses for MDL
because you have this odd juxtaposition
of MDL growing and growing
and becoming more and more important
at the same time that
personal jurisdiction
becomes more and more restricted.
Ultimately, MDL continues to have skirted
serious questions about
personal jurisdiction,
and I think it will continue to.
It's my view that MDL is constitutional
as a matter of the Fifth Amendment,
even post-Goodyear and Bristol-Myers.
And in fact, Teddy and I
think that Bristol-Myers
is gonna be a boon to MDL.
When I turn it over to him
he's gonna explain more about why.
Before saying something specific
about personal jurisdiction though,
I thought since we were
commemorating 50 years...
- Saying something specific
about personal jurisdiction,
or something general?
- Not general, specific.
I don't want to be territorial.
Since we're commemorating 50 years
of multi-district litigation,
I thought it would be a good moment
to say something about the
folks who drafted the statute,
primarily Phil Neal,
the dean of the University
of Chicago law school,
Alfred Murrah, federal
judge in Oklahoma City,
and William Becker, a
federal judge in Kansas City.
And they came up with this idea
a little more than 50 years ago.
And their primary goal was to centralize
the power of the federal courts
to meet what they feared would
be a litigation explosion,
and in particular, a litigation
explosion in mass torts
and products cases that
would be in a world
where they were distributed nationwide
would lead to nationwide litigations.
And the fear was that those litigations
would overwhelm the federal courts.
And so, the decentralized
model of federal courts
would be inadequate in order to deal
with this coming explosion.
And so, the drafters' conclusion was
that we needed to centralize power,
at least over pre-trial proceedings,
in the hands of a single judge.
They did not think that
their statutory product
was gonna be a nothing burger,
although it did sort of
quickly get overshadowed
by rule 23, the amendments
to rule 23 in 1966.
But they always believed that the MDL
would be the primary vehicle
for aggregating mass torts.
I'd like to think that
somewhere they're feeling
sort of vindicated and
happy with themselves
about this event.
But nevertheless, one of the reasons why
they felt there needed
to be an MDL statute
was that there needed to be a way
to consolidate cases before
a single district judge.
And the transfer statute was inadequate
because of its requirement that cases
could only be transferred to districts
in which they might have been brought.
And so there needed to be some mechanism
that allowed cases to be
transferred to any district
if they were all going to be
consolidated in one place.
But it's worth noting that in the 1960s
when they were drafting the statute,
their primary concern was not limitations
on personal jurisdiction,
but limitations on venue,
because that was the heyday
of doing business jurisdiction
and they typically believed
that there would be personal
jurisdiction nationwide,
over a nationwide set of claims
over most defendants in states
where they had continuous
and systematic operations.
Obviously, as Robin noted, since
2011 and the Goodyear case,
this has changed a lot.
In any event, in the 1960s
when they were drafting the statute,
their original idea was something
that they called a radical
forum non conviens statute.
That is something would transfer
all cases for all purposes
into one court.
But they backed away from that
because they thought it went too far,
both as doctrinal matter
and as a political matter.
That is, the plaintiff's bar
was deeply opposed to that
because they were worried that
they would lose their cases,
and federal judges were
not so excited about that
because they worried about having to try
thousands of cases all at once.
So they come up with the idea
of limited transfer for
pretrial proceedings.
And this limited transfer
for pretrial proceedings
followed by remand to the court
where the case was originally filed
turned out to be a genius idea.
Not only was it politically salable,
it gave MDL what Teddy and I think of
as some of the mainspring of its power,
which is this split personality.
That it allows MDL to look simultaneously
like a collection of individual cases
that fit with our traditional norms
of jurisdiction, and choice
of law, and litigant autonomy,
but really put everybody together
into a very tight collective.
And this was not lost on the
drafters of the MDL statute.
In fact, it was considered
really important to them
that there be no opportunity
to opt out of an MDL
because if you can opt out of an MDL,
then it would wreck the whole MDL,
it would defeat the purpose.
You have to keep everybody
stuck in the aggregation
in order for the system to work.
Now, just because MDL has
this split personality,
this patina of individualism
that masks a tight collective,
doesn't mean the problems
of personal jurisdiction
and choice of law go away.
In fact, they are in all of these cases,
particularly true for plaintiffs
and defendants in MDL.
If you're a plaintiff
in one of these cases,
your case might get transferred far away
to a forum where there might not be
jurisdiction over you otherwise.
And if you're a defendant,
you might wind up facing
a nationwide set of claims
in a forum that wouldn't have
general jurisdiction over you,
at least under the Supreme
Court's current case law.
So, if all of those problems
still exist in the MDL,
then why is it that MDL
seems to have skirted
any real scrutiny when it
comes to personal jurisdiction?
And it has skirted any of that scrutiny.
It's clear that the
Judicial Panel on Multidistrict Litigation
doesn't really care about
personal jurisdiction.
They believe they can
transfer a case anywhere.
And in lots of nationwide
products liability cases,
they will say there's no one district
that's the focal point
for this litigation,
so we're gonna pick some place
that in some cases is either
in the middle of the country
because it's geographically central,
or one of the coasts of the country
because it's easily accessible,
or in a place where there's a judge
that they want to give an MDL to
who has never had one before,
or a place where there's a
judge who's had lots of MDLs
and has done a really great job with them
and therefore he or she should get it.
This is not a concern for the panel.
As Elizabeth Cabraser has said before,
I think quite eloquently,
it's not a where problem,
it's a who problem.
They don't care that much about geography.
They care about the
individual district judge.
Now, even though, as a practical matter,
personal jurisdiction isn't
really an issue in MDL,
there's certainly doctrinal problems here.
And the doctrinal problems
I think are highlighted
by the fact that there are two
separate contradictory explanations
for why you can put the
nationwide MDL in one court
given by the JPML on one hand
and the few courts to address
the matter on the other hand.
The JPML in a set of decisions
that I go into in an article
called The Long Arm of
Multidistrict Litigation
that I think is included
in these materials
if you're really looking
for something to do.
And they say, effectively,
that all that matters is
that there is jurisdiction
in the transferor court.
It doesn't matter if there's jurisdiction
in the transferee court.
And the thought is, well,
as long as there's jurisdiction
in the transferor court,
the place where the case is
ultimately gonna be tried
is the one that matters.
And then the plaintiffs,
or the defendant doesn't lose anything
because the defendant wants to object
to personal jurisdiction
in the transferee court,
they can do so on the
basis of the jurisdiction
in the transferor court.
Now, of course, this
is all assuming a world
where nothing of importance really happens
in transferee court.
But the reality of MDL we know is that
everything important happens
in the transferee court,
including the possibility to
grant a dispositive motion.
And so this idea that, well,
all you have to worry about
is whether the transferor
court has jurisdiction
seems to me to be a little
bit of missing the point.
Now, the few courts that
have addressed the question
of whether there's
jurisdiction in the MDL court
say something different.
They say no, the MDL statute
is a nationwide service process statute,
except that it's not.
It doesn't provide for
nationwide service of process,
otherwise you could directly
file any case in an MDL court
without a stipulation by the defendant.
And also it would probably mean
that Lexicon was incorrectly decided
and it would mean that it was probably
the most aggressive use of
nationwide service of process
that Congress has ever attempted
because there's no
possibility of transfer,
there's no narrowing venue statute,
there's no real right to appeal,
and the scope applies to all
potential state law actions
in diversity so long as they
share a common issue of fact.
So not only is it not
a nationwide service of process statute,
if it were one, it's one
that surely tests the limits
of what the Congress could do.
Now, MDL of course, as I said,
has managed to skirt this
and lots of other problems
when it comes to these
jurisdictional questions.
Courts and parties just
haven't been worried about it.
And that brings us to BMS.
Now, one of the reasons
why BMS is such an odd case
is that in BMS,
the defendant wanted very badly
to get out of San
Francisco Superior Court.
They fought tooth and nail
to get out of San
Francisco Superior Court.
But throughout the whole litigation,
they said, well, an MDL
right around the corner
in the northern district of
California would be just fine.
And they said, well what does that mean?
Isn't personal jurisdiction
supposed to be about geography?
Or distant forum abuse?
And what the defendant says is,
no, we consider the
California state courts
the lowest common denominator
and we want to get out of there.
Now, as a Californian I took
this slightly personally.
But nevertheless, that seems
to be what's going on here.
These are arguments that we think about
mostly in terms of diversity jurisdiction
that are being deployed
in personal jurisdiction.
Now, I am not going to argue here,
despite everything that I've just said,
that the MDL statute is unconstitutional.
That would be a rough end to this event,
or at least a rough
middle part to this event.
And if I were to come to that
conclusion it would be silly.
The whole point of MDL
is to be able aggregate
these cases in a single place.
And to some degree the MDL statute
has just become too big
to fail in that way.
So instead, you know,
I think what we need to
do is look at jurisdiction
in MDL in a different way.
That is to say, when we
look at jurisdiction,
it's not about only the jurisdiction
of the transferor court,
although that's important
for reasons that Teddy will discuss.
But also, what is the jurisdiction
in the transferee court?
And the jurisdiction is not
based on territorial principles.
It's based on the national interest
in efficiently resolving mass torts.
And if you look at it that way,
and weigh it in a reasonableness analysis
against the interests of the individual,
the individual parties of litigation,
I think that in most cases,
MDL will past constitutional muster.
But it's not for the fictional reasons
that the panel in the
court have said so far.
So the result is, is
that I ultimately think,
you know, whether you're looking at it
under the fictional way that we do now,
or what I think is a more nuanced way,
personal jurisdiction in MDL
survives Bristol-Myers Squibb.
And in fact, I think, as Teddy will say,
Bristol-Myers Squibb will be quite a boon
for multidistrict litigation.
- Thank you, Andrew, and now, Teddy,
say what you are supposed to say.
- So I've been instructed
in what I'm supposed to say.
I'm gonna talk a little
bit about the effects
of all of these personal
jurisdiction developments on MDL.
So, as Robin and Linda told us,
these recent developments in
personal jurisdiction doctrine,
particularly Goodyear and its progeny,
and the Bristol-Myers decision,
limit plaintiff's options
for where they can aggregate claims.
So no longer can plaintiffs shop around
for the friendliest state
court that they can find
to bring a nationwide class action
or nationwide mass joinder.
Plaintiffs can, of course,
still sue individually or in small groups
in the states where they suffered injury
or perhaps the states where they live.
But if they do that then
they have to give up
all the advantages that
come with aggregation.
If plaintiffs want to
aggregate their claims
on a nationwide scale,
they're gonna typically have two choices.
They can sue in the defendant's home state
where the defendant is subject
to general jurisdiction,
or I guess potentially some state
where the defendant did something
that affects all of
the plaintiff's claims,
like maybe where it designed
the defective product.
Or they can sue in federal court
in a state where they were injured
and then allow their claims
to be aggregated in an MDL
whereas Andrew just explained
the new restrictions on
personal jurisdiction
after Bristol-Myers don't seem to apply,
or don't seem to have much traction.
So given this choice,
we think it's likely
that many more plaintiffs
are going to pick MDL.
So most plaintiffs
would prefer aggregation
before a federal MDL judge
chosen by the Judicial Panel
on Multidistrict Litigation
to either suing alone in the
state court of their choice
or suing together on the
defendant's home turf.
So the result of Bristol-Myers
is not going to be
the scattering of these
cases all over the country
but rather to drive even
more cases into MDL.
So if this is right,
if Bristol-Myers is going to increase
the federalization of mass
tort litigation in MDLs,
what does that mean for MDL?
What should we think of this development?
And so I want to offer four thoughts.
So, first, this might
make settlement easier.
So, parallel state court litigation
can often pose an obstacle to
reaching a global settlement.
Right, different lawyers
working on a different timeline
in front of different judges
can throw a wrench into things
when you're trying to put
together a global settlement.
Having all or almost all
of the players together
in a single forum under the
supervision of a single judge
can really help set the
stage for settlement.
And this can be particularly advantageous
if the defendant might be willing to pay
a sort of peace premium
to resolve all of the claims together.
Second, this might be more efficient.
So there are lots of advantages
to concentrating similar cases
in a single federal court.
So, avoiding duplicative proceedings
is much more efficient
for everyone involved.
And while MDL judges and
state court judges have shown
I think a remarkable
ability to work together,
to manage parallel proceedings,
reducing that need to coordinate
is gonna result in savings
and avoid the potential for friction
when the judges butt heads.
And I think there's also
some intuitive appeal
to handling nationwide
disputes like mass torts
in the courts of the nation
instead of risking inconsistent outcomes
in 50 different state systems
or allowing one outlier state
to make decisions for the whole nation.
Third, I think that
increased federalization
of mass tort litigation and MDL
might result in some smoothing out
in the differences of state law.
And this ties back into
some of the discussion
that Sam was having with
John in the last panel,
and the split personality
that Andrew was talking about.
So, MDL formally respects
the separate identity
of each transferred case.
And the MDL court is
required to apply the same
substantive tort law that the state
in which the case was
originally filed would apply.
The choice of law rules go
with the case after transfer.
Transfer into an MDL is
not supposed to change
the substantive rights of the litigants.
So this means that the MDL court
is going to be dealing
with 50 different sets
of state substantive law to
apply to all of these claims.
And I think part of the
reason why MDL succeeds
where the mass tort class action failed
is that MDL is actually designed
to handle this situation.
So there is no predominance
requirement in MDL
like there is in the class
action rules in rule 23 B3,
so common issues don't have to predominate
over all of the individual issues
because formally at least,
the MDL is just a temporary consolidation.
It's not a representative
litigation like class action.
But the irony here is that
while MDL's formal adherence
to these individual litigation norms
allows aggregation where
the class action could not.
The very fact that these
cases are aggregated
I think may simultaneously
undermine these norms,
undermine the differences
between these cases.
So when a single federal judge
has to apply 50 different
sets of state law
to a massive litigation,
some smoothing out around
the edges seems inevitable.
And this is not to say that
choice of law doesn't matter.
Choice of law certainly matters.
- I hope so.
(laughter)
- When an MDL judge is deciding
a summary judgment motion
in a particular case,
or instructing the jury
in a bellwether trial,
it's gonna decide that
motion or instruct the jury
according to the law
that the transferor court
would apply to that case.
But there are plenty of
opportunities for shortcuts,
and grouping different states' approaches
into broad categories,
and things like consolidated complaints,
or in deciding common
issues on general causation.
And as we heard in the last panel,
when judges are deciding,
sometimes the most important
motions in the case
is the Daubert motions.
Those are decided according
to our federal standard,
and that's going to apply
to all of the cases.
And the judges in the last panel
told us that very often state law
is not factoring into their
consideration in those motions.
And really, you know, state
law is not that different.
There are a couple of
different approaches,
maybe three baskets of approaches
that you can put together.
I think they'll figure it out.
I can't fault judges or the
lawyers handling these cases
for trying to do that.
This is a massive problem
if you have to apply 50
different sets of law.
And any ways to simplify
I think our inevitable
and not necessarily a bad thing.
Probably the biggest opportunity
for smoothing out differences in state law
comes at the point of settlement.
And John Wood eluded to
this in the last panel too
where he says it's not the fact
that these cases are in federal court
that's smoothing out state law,
it's the fact that all
of these cases settle.
So I think many of the people in this room
know more about the content
of MDL settlements than I do.
Most MDL settlements are confidential.
But at least in the publicly available
mass settlements that
have emerged out of MDLs,
they rarely make any sort
of fine grain distinction
among plaintiffs based on
the choice of law rules
that would apply to their cases.
So I've looked at the
12 publicly available
non-class master settlement agreements
in product liability MDLs,
and out of those 12, none of them appeared
to take differences in
the applicable state law
into account in setting
the recovery amounts.
The recovery grids didn't
factor in things like
the plaintiff's state of residence,
or the place of injury,
or anything else that might go
into a choice of law analysis.
So, what we end up here with is a system
that formally accounts for
differences in state law
but in practice smooths out
some of those differences.
And the more mass tort cases,
like product liability cases,
are channeled into federal MDLs
and out of state courts
the more we're going to see developments
in product liability law are
driven by federal judges,
federal judges who are
faced with, I think,
sort of an inevitable pressure
towards simplification and uniformity
that state court judges
don't feel in these cases.
And when all of the action
is in federal court,
it's not quite but it's
starting to sound close to
something like a federal common law,
as Sam Azakharoff pointed
out almost a decade ago
in relationship to capital.
Fourth and finally,
channeling more cases into MDL
is going to concentrate more power
in the hands of MDL judges
and the lawyers who
control this litigation.
Now as I said, there are huge benefits
to aggregating cases in a single forum
and empowering lead
lawyers can help plaintiffs
coordinate their efforts and
prevent strategic holdouts,
prevent the state court lawyers
from throwing a wrench into things.
But there are also risks
whenever power is consolidated.
So in MDLs, individual
plaintiffs often have
very little control over their cases
for as long as they're consolidated.
And as Andrew said, there's
no way for them to opt out.
And the incentives of the lead lawyers,
who are the ones who make
the most important decisions,
might not always line up perfectly
with the interests of
each individual plaintiff.
And so we end up with a similar type
of principal agent problem
that we saw in class actions
but without many of the formal protections
that are built into
the class action rules.
And one consequences of
the Bristol-Myers decision
in making it harder to
file state court litigation
is that it eliminates one
potential competitive check
by making it harder for competing lawyers
to set up other aggregations
in state courts.
Now as I said, there
are advantages to that
but also, I think, some
potential disadvantages.
So with more power concentrated
in the hands of MDL lead lawyers,
I think it becomes even more
important for federal judges,
MDL judges, to manage the litigation
with an eye towards protecting
the individual plaintiffs
and importantly, making sure
that they have the information
that they need to make informed
decisions about settlements
and to monitor their lawyers.
And with that...
- Thank you, Teddy.
I just wanted to translate something.
You said smoothing out of state law.
I think what you meant in English
was running roughshod over state law.
Is that right?
(laughter)
- No, I think smoothing is what I mean.
- Okay, I'll tell the translator then.
- I think it's...
It's not disregard for state law, right.
- It's general common law.
It's not federal common law,
it's general common law.
- So, I don't want to go that far.
I don't want to say that federal judges
are back in the Swift era
where they're thinking
what is the right way to
approach this problem.
There's still the reference to state law
but there's just pressure
towards simplification.
I think it was Judge Kennelly
who said in the last panel,
you know, you can put it
into like three baskets.
That's not Swift, that's
not general common law.
It's just a practical problem
that we're trying to find
some way to get a handle on.
And it's all gonna settle anyway,
and in the settlement they're
not gonna account for it.
- But it doesn't say you ignore it.
I mean, in the class action context,
they have figured out ways of subclassing
and looking at these issues in groups,
and there's no reason that that
can't occur in this context as well,
but it doesn't mean running
roughshod over choice of law.
- Adam, would you like to respond?
- Sure, yeah, just one thought.
Maybe it's not running roughshod,
it's running smoothshod.
- I'll take it.
- So, it's been great to be
a part of this conference.
It's been really enjoyable so far.
This is timely, interesting stuff.
I thought the discussion this morning
of testosterone and male energy
was a good followup to Kanye's
comments at the White House.
(laughter)
But in terms of my designated
duties here responding,
I don't have much to object to
Robin's provocative comments,
but I will just offer a few thoughts
on some of those pre-BMS cases.
And one thing I guess I'll say is
even though cases like
Mcintyre have left things
in a bit of a muddle,
I guess I want to emphasize
it's not necessarily a
more restrictive muddle,
or a muddle that has to be
one that constricts the scope
of personal jurisdiction.
And here of course the saving grace
is that Justice Kennedy's
plurality opinion
did not get five votes,
and so as a result,
if we're looking for any
kind of law or guidance,
and there's admittedly a lot
of deep, unresolved questions
about how we deal with
opinions that don't have,
or decisions that don't
have a majority opinion,
but, you know, if there's law anywhere,
it's gotta be in the
Breyer/Alito concurrence.
And that opinion is premised
on a very narrow reading
of the factual record in this case.
And among other things, Breyer indicated
that personal jurisdiction
might have been fine
if there had been, in the record,
evidence of a market in
the state of New Jersey,
or evidence of New Jersey
customers attending trade shows
where the British defendant
was promoting its products.
That's consistent with the view
that a defendant who benefits
from a market in the forum state
should be subject to personal jurisdiction
when the product causes injury there,
and that's the old line
from World-Wide Volkswagen,
that it's proper if the defendant
delivers its products into
the stream of commerce
with the expectation
that they'll be purchased
by consumers in the forum state.
A majority of justices
endorsed that idea back in 1980
and we still don't have
a majority of justices
rejecting that idea today.
Turning to the sort of
general jurisdiction cases,
the ones that enshrine this
essentially at home test,
you know, I agree with Robin
that they do work a
significant doctrinal change
in terms of where corporation
can be subject to general jurisdiction.
And it's interesting, of course,
that some of the justices
who might ordinarily
favor greater access to judicial remedies
have supported this change.
It's been Justice Ginsberg
by and large leading the charge
on this new definition
of general jurisdiction.
And one reason for this I think might be
the fundamental irrationality
of general jurisdiction.
I mean, to say there
is general jurisdiction
over a defendant is to say
this lawsuit can proceed in this forum
even if there is no reason
on God's green earth
why this forum should
be hearing this case.
And, you know, it's the
same reason why transient,
or tag jurisdiction, is controversial,
because what difference should it make
that the defendant happens
to be served with process
while they're physically
present in the forum state.
There's just no good reason.
And I think one of the key
questions going forward is,
well what if there is a good reason
for a case to be proceeding
in a particular forum?
And I think that's what's
underlying some of the questions
that arise in the wake of
the Bristol-Myers decision
and some of the topics
that Linda addressed.
I think one of the doctrinal issues
where litigants will battle this out,
especially in the context of litigation,
is where exactly this line is
between specific jurisdiction
and general jurisdiction,
and what should we understand as driving
the distinction between
these two categories.
And, you know, the test,
to the extent we have one,
is, well there has to be an affiliation
between the forum and the
underlying controversy.
And this of course would include cases
where the lawsuit arises
out of or relates to
the defendant's context with the forum,
but that's not necessarily the only
kind of affiliation that can count.
Bristol-Myers is, of course,
the only Supreme Court decision
to squarely address that question.
But even it didn't provide
a clarifying theory
for what should be guiding
courts going forward.
One way we might tackle this issue,
one way courts and litigants
might tackle this issue,
is to examine the practical reasons
why a particular forum should be hearing
a particular dispute,
not because that sort
of functional analysis
would override minimum contacts
and all those basic requirements
but because they can inform
whether the case has
the required affiliation
with the forum state to
justify looking at the case
through a specific jurisdiction lens.
And I think that's what's oddly missing
from the majority
opinion in Bristol-Myers.
Alito writes in the
majority opinion, of course,
that it's not enough that
California plaintiffs
and non-California plaintiffs
suffered the same injuries.
But again, there was no
consideration of the practical value
of aggregating related
claims arising from the same
underlying conduct.
Now, it may be that the actual
litigation in Bristol-Myers
didn't present a particularly strong case
in terms of why you really
needed multi-state aggregation.
It didn't seem like these
were low value claims
that might require broad
multi-state aggregation
to make them economically viable.
But suppose multi-state
aggregation was necessary
to make even in-state plaintiffs
claims economically viable.
That's a stronger interest
that might create a more
meaningful affiliation
with the forum state,
and maybe that's one way
to think about some of the
issues Andrew addressed
regarding personal
jurisdiction in the MDL court.
It's the importance of being
able to facilitate aggregation
that creates the necessary affiliation
with respect to the
broader bolus of claims.
And I think finally this is one way
we might conceptualize
pendent personal jurisdiction.
It's sort of part of that
wider category of cases
where a defendant has the basic level
of minimum contact with the forum state
and there are practical,
dispute-related reasons
for having the availability
of judicial remedies
against that defendant
for that defendant's
course of conduct can be
adjudicated in that forum.
And we've certainly let
courts get away with
a heck of a lot more than that
in the context of subject
matter jurisdiction.
In the context of
supplemental jurisdiction
we don't treat each plaintiff's claim
as an independent unit that
must independently qualify
for subject matter jurisdiction.
Article III of the Constitution permits
all of the plaintiffs to come
into federal court potentially
even if some of those individual claims
don't have an independent basis
as long as they arise
from a common nucleus
of operative fact.
And in a statute like
the Multiforum, Multiparty
Trial Jurisdiction Act,
you can even have a case where there's not
even a semblance of subject
matter jurisdiction,
there's not even minimal diversity,
but you could remove it to federal court
because there's other litigation
going on that's related
for which there would be
at least minimal diversity.
So again, that similar logic
potentially might apply
in the personal jurisdiction context.
And I'll just close with one point
about Robin's final
observation about formalism,
and that's just to clarify that, you know,
formalism doesn't necessarily
have to be restrictive.
I think Burnham is a
great of example of that.
Justice Scalia, noted formalist, says,
let's just have a rule
that says every time
you get served with process
you're subject to jurisdiction.
It's a very formalist interpretation
but it's a very broad interpretation.
So one way to think about
these problems going forward
if we assume that the powers that be
are gonna take a formalist approach is
whether they might be formalist approaches
that are more expansive
rather than more restrictive.
- I am going to choose not to
take up more time responding
other than to respond
(laughter)
to Andrew and Teddy about
personal jurisdiction
in the world of MDL.
And Andrew in particular,
I find attractive on one level the idea
that maybe we should look
at the transferee court.
The difficulty I have there though is
the basic assumption that the transfer
should not affect any change of substance
or change of a claim or defense.
And personal jurisdiction is a defense.
I mean obviously, as the
court said in Schutz,
personal jurisdiction is
not just about defendants
but it is typically raised as a defense.
And if we start looking
at the transferee court,
then you really are transforming,
in some sense, claims and defenses
when you transfer from
court A to the MDL court.
And I just wanted your brief
response to that thought.
- Yeah, that's not an unreasonable point.
- It's the best I can hope
for, not unreasonable.
- Not unreasonable, that's
different from reasonable.
I would say, the way that I
would think about this is to say
you've got to have personal jurisdiction
under the usual rules
in the transferor court.
Then after the transfer there should be
personal jurisdiction
in the transferee court
but measured by a different test
that is measured by the test
of whether or not it's reasonable
under the Fifth Amendment.
And what Adam says I think
is the direction I'm going,
that there's a national interest
in efficiently resolving
nationwide disputes
that's captured in the MDL statute.
And the most cases sort of
hearkening back to Melane,
which is something that Judith
has written about recently,
is this notion as a practical matter,
that interest is going to outweigh
the individual inconveniences
to the parties in these cases.
And so, if you look at MDL that way,
sort of a realistic
assessment of what it's doing,
I think it does pass constitutional muster
but not to deprive the
defendant of a defense that
there's no personal jurisdiction
in the transferor court.
Not only would it not
deprive the defendant
of that defense in the MDL court,
it also ensures that if and
when the case gets remanded,
or if the case is gonna be
decided on a dispositive motion,
or tried as a bellwether
trial in the MDL courts,
we know what choice of law rules
are supposed to apply for that case.
- Yeah, but Ted is smoothing
those over, if you recall.
- Well, you do and you don't.
I think the smoothing over
is not running roughshod
because there are places where
state choice of law matters.
And it matters in these circumstances
where a judge actually has to
apply it in individual cases,
not instances where the
judge stays with idea,
oh my god, I've got to
apply it 7,000 times.
I'm applying it in this
summary judgment motion,
this bellwether trial.
- So I think we have about a
few minutes left for questions.
Abbe has a question.
- [Abbe] Hi, Abbe Gluck.
I have a couple of
comments and a question.
So, just in light of the
testosterone comment,
I feel compelled to say that the attorney
who helped the at home
standard, my husband,
is at home with the child.
(laughter)
So I think that we've
made major progress here,
so I can't resist that.
I have a sort of a
question comment for Teddy,
and for Andrew actually.
So, with the smoothing out
thing about the state interest,
I think it's more than just state law.
And this is a preview of
tomorrow's 9:00 AM panel,
so please wake up at 8:45 to
come to our 9:00 AM panel.
But thinking about when
states bring cases,
there's more than just state law at stake.
There's state interests,
there's the attorney general
obligation to stop a particular
kind of harm in a state.
So there's more than just
the choice of law question
but the particular considerations
that might be unique, or different,
when a governmental actor
in a state brings a case
and they sort of get bullied into the MDL.
So I would just point that
out and tantalize you all
for the coffee that will
be served tomorrow, 8:45.
- In other words,
it's not just private versus
private in these cases.
- [Abbe] Yeah, I think that
it's not just a matter of
the law, it's the whole stateyness
and everything that could be going on.
The other question for you guys,
you know, I was surprised.
I sort of thought that Robin,
we were gonna go there.
Surprised that in talking about
where the personal
jurisdiction were going,
there isn't more talk
of federalism per se,
versus nationalism, which is
also sort of an implicit theme
of what this panel's been about.
You know, Mcintyre, that
line, Kennedy's line,
the sovereign by sovereign analysis
versus Ginsburg, the
argument that, you know,
the argument whether personal jurisdiction
is really about Tenth Amendment,
or is it about Fifth Amendment.
So in thinking about the nationalism
versus federalism debate,
I think that's sort of
an underlying theme.
The last question I
have for all of you was
I thought Andrew, you were gonna go
and start talking about
plaintiff due process rights.
And I heard it implicitly
but it wasn't the most
explicit part of your remarks.
And so, isn't it possible
that some of this MDL
discussion is gonna start
flipping the considerations
a little bit into getting
us thinking not so much
about the defendant's due process rights
when it comes to jurisdiction,
but possibly some of the
plaintiff's due process rights,
especially the ones that are
being pulled across the nation
or being pulled from
state to federal court.
You know, could that open up
a different area of argument,
constitutional argument.
- So, Robin, then Andrew.
- So...
Yeah, I agree.
I was sort of leaving the nationwide
service of process question for later.
It definitely put pressure on that.
Just like we've seen more interest
in the registration statutes,
there's now tons of articles
and people advocating
for various forms of
nationwide service of process.
Some people have been writing about it
in the context of how it would happen
only in federal courts.
Other people have been
making broader arguments,
sort of the Ginsburg argument,
that it is possible to think of New Jersey
as just belonging to United States.
But I just want to throw in
something not MDL related
that I think is important to point out,
which is that I think
there's a little bit of
wanting to have cake and eating it too
when it comes to subject
matter jurisdiction
and personal jurisdiction.
And a good example is the
Defend Trade Secrets Act
that was passed a couple years ago
in which all of the interests who lined up
in favor of Goodyear and J. Mcintyre
for this really restrictive
form of jurisdiction
over foreign defendants
came to Congress and said,
we have a huge problem.
Everyone overseas is
stealing our trade secrets
and the only way we can solve this problem
is to have a federal forum for
state trade secret law claims
but we're not gonna add anything
about personal jurisdiction
to the statute.
And it made no sense to me,
and the only sense I could make out of it
was that there was an urgency
to sort of talk about the need
to address conduct by foreign defendants
but really stopping short
of enabling our courts
to actually hear claims
that would address them.
So I think that there's now this game
where we can sort of set
things up where it looks like
maybe we can hold foreign
defendants accountable,
but when actual litigation materializes
it's not really gonna happen
unless Congress gets serious
about nationwide service of process.
- I'll say two things quickly.
First, I think the MDL
statute really is an exercise
is having your cake and eating it too,
though I've never understood
why you'd want to have cake
if you weren't going to eat it.
But putting that aside, I mean,
the goal of the drafters
of the MDL statute
was to nationalize the
power of the federal courts
and to centralize that power.
But by making the transfer only limited,
it keeps that federalism patina available.
It was very important
to the plaintiff's bar
at the time that the MDL
statute was being drafted
that the Van Dusen versus
Barrack rule applied
because they did not want
to lose the choice of law
benefits that would attach to
where they filed their cases.
And so that was sort of the price
of the plaintiff's bar getting
behind the MDL statute.
So it's got both.
It's got this nationalizing impulse
while also trying to retain
the rudiments of federalism there
and how that shakes out I
think is a real question.
I agree with you with
respect to plaintiffs.
I'm more explicit about this in the paper,
but I think that the issues for plaintiffs
are actually perhaps even more important
than issues for defendants.
I mean, defendants in these cases,
is it really inconvenient to deal
with a nationwide MDL
wherever it has to go?
I'm not so sure about that.
But if you're an individual plaintiff
and you file your case, then
it gets sent off someplace else
where it might not have been brought,
it's gonna be prosecuted by
a lawyer that you didn't pick
and it may eventually
only come back to you
in the form of a settlement offer.
That seems to be a pretty
major loss of control.
And you're even worse off than
an absentee in class action.
The Schutz rationale of consent
seems to be to be a pretty thin read
on which to base jurisdiction.
And you don't have the right to opt out.
And the judge isn't required to determine
that your representation is adequate.
And so if you're a plaintiff in an MDL,
you may actually find yourself
in a somewhat worse position.
- Can I just throw in something here?
I mean, all of these things
that happened with the MDL,
I mean, it's not at all clear to me that
at the time of the original MDL,
anybody thought that all of these things
were gonna happen at the MDL.
I mean, the language
of the MDL is pretrial.
And one might think about
things like dispositive
versus non-dispositive
motions being made in the MDL.
I know that that's all sort
of water under the bridge,
it's all happened.
But when you go back and talk
about things like Lexicon
and things that the transferee
court is not supposed to do,
one at least pauses a moment
to ask about the powers of the MDL,
whether that's trying the
case here in the MDL ocean,
or sending it back, or bellwether trials.
- I think Judith has a question.
- Yeah, I think this is
probably the last question.
- [Judith] Hi, Judith Resnik.
So, who wants to be in federal court why
seems to be relevant to this.
And in one era, I'm trying
to remember the Starquist?
What's the tuna fish?
- StarKist.
- [Judith] StarKist, thank you.
So there's the case where the defendants
are trying to stay out of
federal court, and fighting,
and then all of a sudden they say,
gee, federal court is a good place to be
so let's change our view of how to read
28 U.S.C. 1332 diversity.
And so here we are looking
at who wants to be where why,
and we haven't much talked about
the minimal diversity statute
that is pending in Congress
with some people thinking
it may well be enacted.
And so we're looking now to
the rush to federal courts
to aggregate, to disaggregate
because of the assumption
that either through preemption
of federal law, of state claims,
or through interpretation, or
through mandated arbitration,
or through views of the
negativity of aggregation,
a new group of federal
judges and some of the older,
some sitting federal judges
who have been there for longer
will come together to
say you can't proceed in these amalgams,
invoking whether it's
due process or federally.
Not attentive to federalism
because the minimal due process.
The minimal diversity statute
is remarkably tone deaf to that.
But rather looking at trying
to reshape, to deshape,
to disaggregate and
disenable adjudication.
So it seems like that
the doctrinal discussion
has to get intersected with
what's the periodicity,
when is the doctrine being
made, not just by what person,
but with what gestalt,
about what imaginary,
about what the federal and
state courts are going to do.
So it's a question for
the various commentators
about how that makes you think
or how we should understand
your comments in light of that.
- Yeah, and I think that's something that
we're gonna have to wait
and see how it shakes out.
So in the Bristol-Myers case
it's very clear who wants
to be in federal court.
The defendant wants to be in federal court
and is desperate to get to federal court.
And after Bristol-Myers it
seems like plaintiffs...
- Why?
- Why, because as Andrew said,
they view the California state courts
as the lowest common denominator.
They're gonna have unfair
plaintiff-friendly judges in California
and they want out at all costs.
They wanted to be in the MDL in New Jersey
and the plaintiffs had structured the case
to avoid removal of CAFA by breaking it up
so it was groups of 99 and not 100
so it doesn't trigger the mass action.
- But is the comparison between federal
or is the comparison we know the judge
in California state court
and we know the MDL judge,
we want to be before the MDL judge,
or is it federal state?
Is it judge A, judge B, or is
it federal court, state court?
- I believe, and Andrew,
correct me if I'm wrong,
I believe in Bristol-Myers
it was federal court versus
state court because they
didn't know who the MDL
judge was at that point.
But that's also going to
factor into the calculus.
You might be quite content as a plaintiff
to file in the defendant's home state
in state court under general jurisdiction
if you don't like the MDL judge.
So it could affect the timing.
I think one thing that's interesting
about the federal
court/state court choice here
is before Bristol-Myers it was very clear
that defendants usually
wanted to be in federal court.
And one of the reasons,
one of the effects of CAFA,
you could almost say that
CAFA was designed to fail.
It's designed to get these
class actions into federal court
where if they're nationwide
they're gonna face a predominance inquiry
that if multiple state's
laws are gonna apply to them
they're gonna have to do
some fancy subclassing
or they're not gonna be certified.
MDL puts these cases into federal...
Or Bristol-Myers, it is
channeling these cases into MDL,
which is actually designed to handle them.
And this goes back to the idea that
it's a smoothing out of
differences in state laws.
It's not riding roughshod over state law.
Choice of law rules,
choice of law rules
matter and apply in MDL.
It's just there's a
pressure towards uniformity.
Okay, well, I know what article
we're writing together, Teddy.
We are plum out of time.
Please join me in thanking our panel.
(applause)
