Party Preferences in Multidistrict Litigation

Perhaps the two most salient trends in complex litigation have been the rise of multidistrict litigation (MDL) and the fall of aggregation on plaintiffs' terms. According to recent statistics, more than one third of federal cases are consolidated within MDLs-meaning that they are being litigated before judges handpicked by the Judicial Panel on Multidistrict Litigation (the JPML or the Panel), which itself was handpicked by the Chief Justice. Meanwhile, decisions on personal jurisdiction, class actions, and other topics have dramatically reduced plaintiffs' ability to select their preferred forum for complex cases. These trends intersect when jurists and scholars suggest that MDL provides a backstop for aggregate litigation because it is not constrained by rules on personal jurisdiction and class certification. The ultimate choice of the forum in which large-scale cases will be litigated seems to be increasingly in the unconstrained hands of the Panel, and not the plaintiffs.