Aggregation on Defendants
Aggregation on Defendants' Terms: Bristol-Myers Squibb and the Federalization of Mass-Tort Litigation
Andrew D. Bradt 0 1 2 3 4
D. Theodore Rave 0 1 2 3 4
0 Part of the Civil Law Commons, Civil Procedure Commons , Consumer Protection Law
1 University of Houston Law Center
2 University of California, Berkeley School of Law , USA
3 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information , please contact
4 Commons , Jurisdiction Commons, Litigation Commons, and the Torts Commons
Recommended Citation Andrew D. Bradt & D. T. Rave, Aggregation on Defendants' Terms: Bristol-Myers Squibb and the Federalization of Mass-Tort Litigation, 59 B.C.L. Rev. 1251 (2018), http://lawdigitalcommons.bc.edu/bclr/vol59/iss4/3
ANDREW D. BRADT*
D. THEODORE RAVE**
Abstract: Although it is destined for the personaljurisdiction canon, the
Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior
Court does little to clarify that notoriously hazy doctrineI.t does, however,
significantly alter the balance of power in complex litigation.Bristol-Myers is
a landmark case because it makes both mass-tort class actions and mass
joinders impracticable in almost any state courtoutside of the defendant’s home
states. With federal courts already hostile to class actions, plaintiffs who want
to aggregate their claims will have to do so on the defendant’s terms: either on
the defendant’s home turf or in federal multidistrict litigation (MDL). Faced
with this choice, we believe that most plaintiffs will turn to MDL. The result
will be the culmination of a trend toward the federalization of mass-tort
litigation in MDL, which has already grown to make up an astonishing one-third of
the federal civil docket. In thisArticle, we examine whyBristol-Myers will
have this effect and explain how MDL’s hybrid structure facilitates centralized
mass-tort litigation in federal court, even as the Court’s restrictive view on
personal jurisdiction prevents similar aggregation in state court. MDL cuts
this Gordian knot by formally adhering to the vision of vertical and horizontal
federalism underlying both diversity jurisdiction and Bristol-Myers, while
al© 2018 Andrew D. Bradt & D. Theodore Rave. All rights reserved.
* Assistant Professor of Law, University of California, Berkeley School of Law (Boalt Hall).
** Assistant Professor of Law, University of Houston Law Center. Thanks to Emily Berman,
Robert Berring, Robert Bone, Pamela Bookman, Patrick Borchers, Stephen Bundy, Stephen
Burbank, Maureen Carroll, Erwin Chemerinsky, Zachary Clopton, Joshua Davis, WilliDamodge,
Scott Dodson, David Engstrom, Allan Erbsen, William Fletcher, Richard Friedman, Maggie
Gardner, Mark Gergen, Lonny Hoffman, Samuel Issacharoff, Adam Lauridsen, Richard Marcus,
Ralf Michaels, Jonathan Nash, David Noll, Anne Joseph O’Connell, David Oppenheimer, Edward
Purcell, Rachel Stern, Steve Sugarman, Susannah Tobin, Amanda Tyler, Jan Vetter, Tom
Willging, Patrick Woolley, and Kathryn Zeiler for their helpful comments. The authors were part
of a team that wrote an amicus brief urging the SupremeCourt to affirm in Bristol-Myers Squibb
Co. v. Superior Court. They have no affiliation with any party to the litigation, and all financial
support for preparing the brief was provided by amici’s home academic institutions. The views
expressed in this Article are solely the authors’ and do not necessarily reflect the views of their
so paradoxically undermining that vision in service of mass resolutionA.s a
result, even more power over mass-tort litigation will be centralizedin the
hands of the MDL judge andthe lead lawyers the judge selects to run the
litigation—a prospect that comes with both opportunities and risks.
Over the last decade, Americans havegone to California in droves,
perhaps because of the weather, the booming economy, or the bountiful
ersources.1 So too did 592 plaintiffs from around the country who wanted to
sue for injuries they suffered after taking the drug Plavix, manufactured by
pharmaceutical giant Bristol-Myers Squibb. These plaintiffs
joinedeightysix Californians alleging similar injuries in a series of product-liability cases
in the Superior Court of San Francisco County2. Bristol-Myers, for its part,
did not want to litigate those cases in California, whose judges and juries it
considered a little too plaintif-ffriendly for its taste. Fro complicated
reasons, however, Bristol-Myers could not remove the cases to what it believed
were the friendlier confines of federal court. So, Bristol-Myers tried another
means of getting out—a motion to dismiss for lack of personal jurisdiction
over the claims by the non-Californians, derided as “litigation tourists.”3
Rebuffed by the California courts, Bristo-lMyers, as the saying goes,
took the case all the way to the Supreme Court, contending that the -non
Californians’ claims lacked the requisite “minimum contacts” with
Califronia.4 The Supreme Court agreed by an eight-to-one margin in Bristol-Myers
Squibb Co. v. Superior Court, a decision that is likely to become a staple of
first-year Civil Procedure courses everywhere5. The Court held that to
nivoke the California court’s specific jurisdiction, each plaintiff’s claim must
have some specific connection to the forum state. Thus, prod-luicatbility
plaintiffs cannot sue a national product seller in any state just because it
sells the same product there.Plaintiffs must either sue in a state that has
some specific connection totheir claim or else in the defendant’s home
state, where the defendant is subject to general jurisdiction. 6
Throughout the litigation, Bristo-lMyers faced a key question: what
exactly was wrong with California? After all, Bristo-lMyers would
concededly have to litigate the California plaintiffs’ claims there, no matter what
the courts concluded about the ou-otf-staters’ claims. Bristol-Myers had a
major footprint in California: it emlopyed thousands of people and sold
over a billion dollars’ worth of Plavix there. Not to mention that San
Frnacisco is eminently accessible,and probably more convenient than many
state courts around the country where the out-of-staters might refile.
There was, of course, nothing inconvenient about litigating in
California. In reality, the stakes in Bristol-Myers had little to do with the traditional
concerns underlying limitations on personal jurisdiction, such as dis-tant
forum abuse or state sovereignty, although lip service was dutifully paid to
those venerable concepts. Bristol-Myers is just the latest move in thechess
match going on inmass-torts litigation between plaintiffs who want to
aggregate their cases in the state court of their choice and defendants who
want to prevent aggregation in the hopes that the cases will go away otor
move the cases into federal court before a friendlier audience. Indeed,
Brsitol-Myers candidly admitted that if the plaintiffs were prevented from
aggregating their cases in California, it expected that “a lot of those cases
aren’t going to get filed,” or that they would be removed and transferred to
a federal multidistrict litigation, or MDL.7 In fact, Bristol-Myers
enthusiastically endorsed the MDL process, which would consolidate cases filed
around the country in a single federal court that could be located virtually
anywhere—including in the U.S. District Court for the Northern District of
California, right down the street from the Superior Court they were so
dseperately trying to flee. In Bristol-Myers’s view, then, nationwide
consolidation in California state court was unconstitutional, but consolidation in
federal court in California was perfectly acceptable.8
This practice of forum shopping between state and federal courts is age
old—plaintiffs will inevitably prefer on,ewhereas defendants prefer the
other.9 In mass-tort litigation, the battle has continued unabated since new
methods of aggregate litigation—like the class action—came on the scene
7 Oral Argument at 23:00, Bristol-Myers Squibb Co. v. Superior Court, 175 Cal. Rptr. 3d 412
(Ct. App. 2014) (No. 16-466), https://www.oyez.org/cases/2016/16-466
8 See Brief for Petitioner, supra note 4, at 51 (arguing that multidistrict litigation (MDL) “has
been used successfully countless times before”).
9 See generally EDWARD A. PURCELL, JR., BRANDEIS AND THE PROGRESSIVE CONSTITUTION
(2000) [hereinafter PURCELL, BRANDEIS]; EDWARD A. PURCELL, JR., LITIGATION AND
INEQUALITY (1992); Erwin Chemerinsky, Parity Reconsidered: Defining a Role forthe Federal Judiciary,
36 UCLA L. REV. 233 (1988) (describing the persistent debate over the relative quality of the
federal and state courts).
in the 1960s.When, in the 1990s, numerous decisions by federal courts
made it difficult to certify mass-tort class actions, plaintiffs’ lawyers turned
to more accommodating states10. To combat that tactic, defen-sferiendly
interest groups convinced Congress to pass the Class Action Fairness Act of
2005 (CAFA), which expanded federal subject matter jurisdiction over class
actions to return them to hostile federal courts.11 But plaintiffs found ways
to continue to aggregate in state court all the same by structuring mass
joinders that are neither class actions nor fall within diversity jurisdiction, under
CAFA or otherwise.12 So it was that 678 plaintiffs from around the country
had managed to come together in a single no-nclass, mass-tort proceeding
in San Francisco. And the Supreme Court sent them home in Bristol-Myers.
Although it is already being hailed as a landmark decisio13n,Justice
Alito’s opinion for the Court tells us surprisingly little about pe-rsonal
jurisdiction doctrine. Indeed, the opinion pronounces itself modest: it claims
to make no new law and explicitly leaves a series of rather thorny questions
open.14 Much ink will undoubtedly be spilled attempting to glean the
thoeretical underpinnings of the Court’s latest effort to police plaintiff forum
shopping, whether it is based on sovereignty or fairness, or some
combination of the two.15
But Bristol-Myers’s real impact will not be on the doctrine of personal
jurisdiction. Indeed, it may not even be felt in much simple litigation16.
Instead, Bristol-Myers is a landmark case in a different and perhaps bigger
story about the balance of power in complex litigation. After the Supreme
Court’s decision, we predict that cases likeBristol-Myers will not be split
up and litigated in state courts all over the country, as the Court seemed to
contemplate. Instead, they will wind up inMDL, which offers a means of
centralizing cases filed around the country before a single federal ju1d7ge.
The cases are centralized for the ostensible purpose ofmanaging coordinated
pretrial proceedings, after which they will be sent back to the courts where
they were originally filed for trial, but the result is almost always some sort of
mass resolution.18 Bristol-Myers is thus more than another chapter in
thepersonal jurisdiction saga; it is a milestone in the ascendancoyf MDL as the
centerpiece of nationwide dispute resolution in the federal courts. 19
Bristol-Myers may impact some one-on-one litigation—though only a
highly motivated forum shopper would try to bring a slip-and-fall case in a
state where he neither lived, nor slipped, nor fe—ll but its effects on
complex cases will be substantial. Plaintiffs who have similar claims stemming
from a defendant’s nationwide course of conduct (like a nationally marketed
defective product) and wish to sue together will now face a more limited set
of options. As we explain in this Article, although the Court claims to leave
the question open, multistate or nationwide class actions based on state tort
law are likely off the table in almost any state or federal court that does not
have general jurisdiction over the defendant.Essentially, with some
exceptions that we will discuss, after Bristol-Myers, mass-tort plaintiffs can either
) assemble a nationwide group to sue together in state court in the
defendant’s home state or potentially a state where it directed nationwide conduc;t
) sue individually or in smaller groups in their own home states’ courts if
they can find a way to avoid remov;alor (
) sue in, or allow removal to,
to do so may be significantly hindered byBristol-Myers. See Matthew D. Cain & Steven Davidoff
Solomon, A Great Game: The Dynamics of State Competition and Litigatio,n100 IOWA L. REV.
465, 497 (2015) (describing how states compete for mas-stort litigation in their courts);Klerman
& Reilly, supra note 12.
17 28 U.S.C. § 1407 (2012).
18 See Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70VAND. L. REV.
67, 72 (2017) [hereinafter Burch, Monopolies].
19 MDL’s meteoric rise in the wake of the mass-tort class action’s demise has been one of the
biggest stories incivil procedure since the turn of the centuryS.ee, e.g., JOHN C. COFFEE, JR.,
ENTREPRENEURIAL LITIGATION: ITS RISE, FALL, AND FUTURE 155 (2015) (noting that “the most
successful step taken in the administration of aggregate litigation in the United States was the
creation of the JPML[Judicial Panel on Multidistrict Litigation]in 1968”); Richard L. Marcus,
Cure-All for an Era of Dispersed Litigation?: Toward a Maximalist Use of the Multidistrict Lii-t
gation Panel’s Transfer Power, 82 TUL. L. REV. 2245, 2248 (2008); Thomas E. Willging &
Emery G. Lee III, From Class Actions to Multidistrict Consolidations: Aggregate Mas-sTort
Litigation After Ortiz, 58 U. KAN. L. REV. 775, 777 (2010).
federal court (either in their home states or the defendant’s) where their
cases will be aggregated for pretrial proceedings in aMnDL. In short, if the
plaintiffs want to aggregate afterBristol-Myers, they will have to do so on
the defendant’s terms—either on the defendant’s home turf or in an MDL.
Given this array of options, we think MDL is likely to wind up as the
dominant choice. Indeed, for plaintiffs concerned that a defendant hans- e
gaged in preemptive forum shopping by selecting friendly places to
incorporate and set up its principal place of business, aggregation before a federal
judge chosen by the Judicial Panel on Multidistrict Litigation(JPML) may be
preferable. The result ofBristol-Myers will thus be to vacuum many more
cases into MDL’s ambi2t0. For their part, defendants are thought to favor
MDL because it creates a streamlined opportunity for global settlement
wihtout the risks associated with class certification or parochial state courts.21
Defendants, of course, might prefer a world with no aggregation at all2.2 But, at
least as compared to nationwide class actions or mass joinders in plaintiffs’
handpicked state courts, MDL appears to be an acceptable alternative.23
But why is federal MDL consolidation for pretrial proceedings a
feasible option for aggregating these cases in a single court while the federal
mass-tort class action failed?24 The answer, we think, lies in the magic of
MDL’s hybrid structure. Formally, it is a loose collection of individual cases
temporarily brought together for mundane pretrial processing, but very
often it functions as a tightly knit aggregation from which a global resolution
emerges, whether by settlement or dispositive moti2o5nI.ndeed, despite
MDL’s surface-level modesty, less than three percentof cases are ever
ermanded back to the courts where they were originally filed.26 This split
personality permits MDL to accommodate the norms of traditional American
one-on-one litigation far better than a class action,even while functioning,
at times, like representative litigation.27
MDL’s hybrid structure allows it to accommodateBristol-Myers.
Although Bristol-Myers casts doubt on nationwide class actions in almost any
court outside of the defendant’s home state, MDLis not a class action.
nIstead, MDL facilitates the transfer of individual state-law cases filed around
the country to a single federal court, so long as those cases were filed in (or
removed to) a district court that would have personal jurisdiction under
paplicable state law and theFourteenth Amendment.28 Once such jurisdiction
is established, the cases can move seamlessly intothe MDL, wherever it is
located. Because, formally, those cases are in the MDL only for “pretrial
proceedings,” the transfer is considered temporary—never mind that it is usually
permanent. MDL, therefore, fosters nationwide aggregation while paying
lip service to the rudiments of individualization and decentralization.29
If our prediction that most plaintiffs will turn to MDL as the best
available alternative is correct, the result will bae nationalization of mass-tort
litigation in federal MDL, even when those claims aer brought under state
law. In that sense, some fifty years later, this development fulfills the vision
of the creators of the MDL statute. And it is consistent with the broader trend
towards federalization of mass litigation evident in CAFA and more subtlyin
the expansion of preemption and other doctrines, as controversies arising in
the modern economy routinely cross state and national boundraies.30 As the
creators of MDL intended, national courts are being called upon more and
more to handle national controversies.31
There is much to be said for handling litigation of nationwide scope in
federal court. And MDL succeeds at federalizing mass litigation where
CAFA (predictably and probably intentionally) failed because its hybrid
strcuture accommodates the essential features of our federal system in a way that
the class action rule could not.Paradoxically, however, by paying lip
vice to traditional norms of federalism and individualization, MDL may
simultaneously undermine these norms in the name of mass resolution.
Aggregate litigation—and especially aggregate settlemen—tinevitably comes
with pressure to smooth out some of the differences in the applicable state
laws and water down the policies underlying limitations on sta-tceourt
jurisdiction. Ultimately, the irony of Bristol-Myers is that, for allof its
professed concern for interstate federalism and predictability for defendants,
what it really facilitates is consolidation of a nationwide set of claims in a
single federal court selected by the JPML.
Centralizing mass-tort claims in MDL is aggregation on defendants’
terms. Still, we believe that doing so offers potential benefits to plaintiffs
and the court system as well by creating opportunities for mass resolution
that can benefit all parties.32 Our view, however, is not entirely sanguine.
Channeling more cases into MDL concentrates power in the hands of the
MDL judge and lead lawyers who control the litigation and limits potential
counterweights in parallel state-court litigation. What will ultimately matter
in assessing this development is not the doctrinal niceties of personal
jursidiction, but rather how that power is deployed. Like any procedural device,
MDL can be manipulated to the benefit of defendants, plaintiffs, or the
lawyers who represent them. Bristol-Myers thus increases the need to focus on
making sure MDL processes and the outcomes they produce are —faair
project that we, and others, have pursued elsewhere.33
This Article proceeds in three parts. In Part I, we lay the groundwork
for how we got here in both complex litigation and personal jurisdic.tion
We then take a deep dive into theBristol-Myers litigation, which provides
an extraordinary example of the moves and countermoves typical of modern
Part II does the doctrinal heavy lifting. In it, we discuss
howBristolMyers narrows the options for plaintiffs seeking to aggregate similar claims
against a common defendant in a single proceeding.We then show why,
given the available alternatives, the key players in ma-stosrt litigation are
likely to channel even more claims into MDL.
In Part III, we examine why MDL thrives as a tool for aggregation of
nationwide mass-tort claims in federal court and assses the normative
miplications of its continuing dominance. We show how the federalization of
mass-tort litigation in MDL can be consistent with a coherent view of both
the horizontal federalism embodied in Bristol-Myers and the vertical
federalism embodied in Erie and Klaxon’s approach to diversity jurisdiction.
MDL’s split personality allows it to accommodate bo,thwhile in practice
subtly undermining the commitments of these doctrines. We then address
some of the opportunities and risks that Bristol-Myers creates by increasing
the centralization of mass-tort litigation in MDL.
Bristol-Myers solidifies MDL as the primary forum for nationwide
mass-tort litigation—at least for the time being. But resolving the battle
over forum does not end the mass-tort wars; it just changes the terrain.
Because MDL is so flexible, there is ample room for innovation and
manipulation. The new front line will be how MDL functions, and skirmishes have
already begun in courts and in Congress. We close by previewing some of
the potential fights to come.
I. AGGREGATION AND JURISDICTION IN BRISTOL-MYERS
To understand what Bristol-Myers means for complex litigation, one
must understand two trends that have developed in parallel: the rapid
growth of federal MDL as the central mechanisfmor dealing with mass
harms that occur on a national scale and the evolution of
personajlurisdiction doctrine in a modern,interconnected economy. We set the scene for
Bristol-Myers here by briefly describing these two trends. We then take a
deep dive into the Bristol-Myers litigation, which provides a terrific
illustration of the interests and strategies of plaintiffs and defendants in modern
A. How We Got Here in Complex Litigation
Nationwide aggregation of claims from around the country in a single,
massive proceeding is a relatively recent development, but it has been a
central feature of American litigation for the last fifty years, for
understandable reasons. For both plaintiffs and the courts, and, to a lesser extent,
defendants, there is a strong attraction to aggregating mass-tort claims. Unlike
small consumer claims, which typically make no economic sense to pursue
outside of a class action, mass torts often involve personal injuries where
damages can range in the tens or hundreds of thousands of dollars or higher.
But even substantial claims, like those over injuries caused by defective
products, can be challenging to bring individually because costly
investigation and expert witnesses can
make such cases economically nonleviab
When a defendant has, for example, marketed an allegedly defective
product to a national market, many cases that arise all around the country
will share common features. By aggregating similar cases formally onr- i
formally, plaintiffs and their lawyers can share information and spreadout
the costs of discovery and expert witnesses, giving them something
approaching resource-parity with the defendant and increasing their leverage
in settlement negotiations.35 Courts also favor aggregation to avoid
duplicative proceedings and to reduce backlogs.36 Defendants, for their part, tend to
resist aggregation for all the same reasons that plaintiffs find it adav-ant
geous, but given the inevitable pressure to aggregate mass torts, they find
some forms of aggregation more threatening than others.37
Aggregation of these claims in a single court, federal or state, would
have been essentially impossible until the 1960s, when lawmakers
developed two new tools: multidistrict litigation and the modern class aiocnt—
mechanisms largely copied by the states.38 After a period of popularity and
controversy, the prevalence of class actions has declined.39 Today, the bulk
of these mass-tort claims—at least the ones in federal cour—thave found a
home in MDL, which, after several years of staggeringgrowth, makes up
more than one-third of the entire federal civil docket.40 But it wasn’t always
The story of MDL’s rise from obscurity to prominence begins in the
1960s when a small group of judges, led by Judge WilliamBecker of the
Western District of Missouri and Dean Philip C. Neal of the University of
Chicago, drafted an innovative venue transfer statute and shepherded it
through Congress.41 To Neal and Becker, developments in technology,
population growth, the interocnnection of the national economy, and thec-a
companying increased potential for widespread harm would combine with
new statutory and common-law causes of action to create a massive amount
of new litigation—as they called it, a “litigation explosion.”42 Their
prescience was remarkable; among the litigation they accurately predicted were
nationwide product-liability cases stemming from defective drugs and
To these judges, the solution to the litigation explosion was twofold—
and required a radical rethinking of the judicial role. First, the federal courts
must be deployed as a single, national bo4d4y.Rather than allow similar
cases to be decentralized across the country, where the same discovery and
motion practice would be duplicated over and over, risking inconsistent
ersults, pretrial procedure must be centralized before a single federal district
judge acting on behalf of the country.45 Second, the judges placed in charge
of these cases must be disciples of the burgeoning principles of cative case
management; they must move the cases along efficiently, and not, in Judge
Becker’s words, allow “litigants [to] run the cases.”46
What emerged from these insights was the Multidistrict Litigation Act
of 1968.47 The MDL statute created the Judicial Panel on Multidistrict
Litigation and gave it broad discretion to consolidate cases sharing any
mcomon question of fact and to transfer them to a single federal district judge
for coordinated pretrial proceedings.48 While the cases are consolidated, the
MDL judge has all the powers of any federal district judge to manage sd-i
covery and rule on pretrial motion—sincluding dispositive ones, like
sumProcedure and Society: An Essay for Steve Yeazell, 61 UCLA L. REV. DISCOURSE 136, 144 n.40
(2013), https://www.uclalawreview.org/pdf/discourse/61-10.pdf [https://perma.cc/H8BD-B6UY]
(noting that “MDLs have become the form for resolution for resolution of mass tort matters”).
41 Bradt, Radical Proposal, supra note 22, at 839.
42 Id. at 890.
43 Andrew D. Bradt, Something Less and Something More:MDL’s Roots as a Class Action
Alternative, 165 U. PA. L. REV. 1711, 1736 (2017) [hereinafter Bradt, Less and More].
44 Bradt, Radical Proposal, supra note 22, at 864–65.
45 See id. at 864 (quoting from a speech by Neal to the Seventh Circuit Judicial Conference).
46 Id. at 878. Judith Resnik would later label this approach“managerial judging.” Judith
Resnik, Managerial Judges, 96 HARV. L. REV. 374, 375 (1982).
47 28 U.S.C. § 1407.
48 Id. § 1407(d).
mary judgment.49 At the conclusion of pretrial proceedings, however, the
cases must be remanded to the districts where they were originally file5d0.
So the consolidation is nominally temporary; the MDL court cannot try the
transferred cases.51 In reality though, remand rarely occurs. Indeed, some
ninety-seven percent of transferred cases have been resolved while
consolidated in the MDL court, whether by dispositive motion or settlement.52
The MDL statute’s architects believed that their solution wouled- b
come the central mechanism for resolving mass torts in the federal courts.
The Civil Rules Advisory Committee that was ocntemporaneously drafting
the revolutionary amendments to Federal Rule of Civil Procedure 23, which
created the modern class action, agreed with them. Although the Reporters,
Benjamin Kaplan and Albert Sacks, recognized the “adventuresome” nature
of some of their innovations to the class action ru—le particularly the new
opt-out class action in Rule 23(b)(3—)the Rules Committee believed their
amendments would have the most impact in cases for injunctive relief, like
civil rights cases.54 MDL—not the class aciotn—was intended to be the
primary mechanism for aggregating claims in “mass accident” cases, an
understanding memorialized in theAdvisory Committee’s notes
accompanying the amendments5.5 Indeed, the reason there is a “superioritye”- r
quirement in Rule 23(b)(
) is because of theAdvisory Committee’s
collective view that in mass-tort cases, MDL would be a more appropriate
Strangely enough, and to the surprise of the Rules Committee, the
1966 Rule 23 amendments led to an explosion of class action5s7. Plaintiffs
almost immediately grasped the power of the class action mechanism to
band together into a formidable litigating force, not only in civil rights and
small-claims cases, but also in mass torts5.8 And although class actions had
only a brief heyday in the federal courts, they took off in some states. The
class action revolution—in all its form—sattracted massive attention and
dispute, and numerous attempts at reform throughout the 1970s
1980s.59 During this time, MDL chugged along in relative obscurity,
wokring rather effectively at consolidating a variety of cases, but always in the
shadow of the class action.60
When some federal courts began to show enthusiasm in the 1980s and
1990s for using the class action to bring much needed closure to major
nationwide mass-tort controversies, such as the asbestos litigation crisis, the
Supreme Court stepped in to rebuff those attempts Ainmchem Products,
Inc. v. Windsor and Ortiz v. Fibreboard Corp.61 In the years that followed,
the federal courts have reached a rough consensus that mass torts like
product liability cases typically come with too many individual issues
surrounding causation, damages, and frequently the applicable substantive tort law to
satisfy the predominance and superiority requirements of Rule 23(b)(
With federal courts looking inhospitable, especially in mass-tort cases,
much of the action in class actions moved to state courts. Some states,
known as “magic jurisdictions” or “judicial hellholes,” depending on your
perspective, became magnets for nationwide class actions and the
potentially massive verdicts and settlements that go along with them.63 This resulted
in enormous outcry from defense interests. The worry was that a handful of
state courts were particularly solicitous of class actions and willing to
ceritfy even questionable ones, thus exposing defendants to the risk of -firm
threatening liability in situations where the vast majority of state and federal
courts would never have deramed of certifying a class6.4 Thus, an outlier
state court—often applying its own substantive law under the Supreme
Court’s loose constitutional limits on choice of law—could effectively rule
on the defendant’s conduct nationwide and subject the defendant to ruinous
damages.65 The solution was legislative, and one of the few successful
efforts by Congress to retrench private enforcement of the substantive la w66.
CAFA significantly expanded federal subject matter jurisdiction over
puattive class actions where there is minimal diversity and the class seeks an
aggregate amount in excess of five million dollars.67 The result was to make
nearly all class actions of significant size and any sort of national scope
CAFA’s ostensible aim was to move nationwide class actions into
federal court on the theory that national courts should handle controversies that
are national in scope.68 But the more cynical view of CAFA is that its
spuporters intended to move class actions into federal court to die69. The
critical doctrinal roadblock is that nationwide or multistate class actions based
on state law will typically involve the application of many different states’
substantive laws to different class member7s0. For the most part, federal
courts faced with fifty different sets of applicable substantive law have
refused to certify classes because they cannot meet Rule 23(b)(
minance requirement.71 Without a uniform federal tort law to go along with
federal jurisdiction, nationwide mass-tort class actions are often
unmanageable.72 And because the federal courts retain jurisdiction under CAFA even
if class certification is denied, removal can sound the death knell for a
putative class action. 73
The combination of CAFA and the Court’s earlier rulings on clascs- a
tions was a double whammy.74 Most class actions could now be removed to
federal court, where they would be governed under a hostile regi m75eT.he
federal courts may have grown even more hostile to class actions in the years
since CAFA, and not just in the mass-tort arena, with decisions like Wal-Mart
Stores, Inc. v. Dukes76 (an employment case) and Comcast Corp. v. Behrend77
(an antitrust case) increasing the bar for showing commonality and predo
minance in all class action7s8. Additionally, the Supreme Court’s decision in
AT&T Mobility LLC v. Concepcioninterpreted the Federal Arbitration Act to
further restrict the availability of class actions in state court when defendants
include arbitration clauses with class-action waivers in their consumer or
employment contracts.79 The combination of these factors meant that many class
actions—particularly mass-tort class actions—were no longer viable.
But the demise of the mass-tort class action did not mean the demise of
mass torts or the pressures to aggregate them. With the class action
unavaialble, mass torts in the federal courts have overwhelminglylanded in MDL—
right where the drafters of the MDL statute and the 1966 Rule 23
amendments intended them to be all along. MDL’s growth in recent years has been
meteoric to the point where currently more than on-ethird of all civil cases
pending in the federal courts are part ofan MDL.80 And the overwhelming
majority of these case—smore than ninety percen—tare product liability
cases.81 Recognizing the tremendous savings in federalcourt resources that
consolidated pretrial proceedings can offer, as well as MDL judges’ success
in shepherding mass torts towards resolution through global settlemen,t the
JPML is quick to create an MDL in tort controversies aonfy substantial
Defendants have been largely amenable tothis development. If they
have to face aggregation in mass torts, defendants tend to prefer MDL to the
class action.83 MDL allows defendants to avoid the costs of duplicative
litigation without the risk that a single classwide verdict will impose f-irm
threatening liability—a prospect that defendants often argue forces them to
settle even questionable claims once a class is certifie8d4.And defendants
may be able to eliminate wide sawths of claims all at once inan MDL if
they can win a dispositive motion on a common issue or exclude critical
evidence, such as the plaintiffs’ scientific expert.85 Perhaps most
importantly, MDL collects the key players in a single place, making it easier to
negotiate a global settlement that will resolve practically all of the claims and
allow defendants to move on.86
The combination of CAFA and the growth of MDL in federal court,
however, did not spell the end of mass torts in state court. Plaintiffs still
often preferred to file mass tort claims in state court, in part because they
perceived MDL as too defendan-tfriendly or slow-moving.87 Additionally,
plaintiffs (and their lawyers) can typically retain more control over their
individual cases in state court than in a federal M D,Lwhere most of the
important decisions are made by a c-oapuprtointed Plaintiffs’ Steering
Committee.88 Many plaintiffs therefore attempted to aggregate matsosr-t
claims in state courts by eschewing class actions, joining no-dniverse
parties, and structuring their non-class aggregations to avoid removal under the
complicated exceptions to CAFA. 89
So, although CAFA prevented plaintiffs from shopping for lenient state
procedural rules to certify a nationwide class, plaintiffs, of course, still
sought to concentrate cases that could not be removed in a friendly forum.
Thus, out of all of the states that could exercise personal jurisdiction over
the defendant and the nationwide set of claimps,laintiffs filed their
nonclass aggregations in states wherethey thought the judges and applicable
law would be most favorable. As we shall see, the
plaintiffsBrisntolMyers pursued just such a strategy.
B. How We Got Here in Personal Jurisdiction
To fully understand the plaintiffs’ strategy and why Bristol-Myers
succeeded, it is necessary to briefly survey the personaljurisdiction landscape.
Alongside the developments in mass litigation described above, the law of
personal jurisdiction has continued to evolve in fits and starts to
accommodate the need to resolve disputes in an increasingly interconnected national
and international marketplace.
Though its roots go deeper, the personaljurisdiction story typically
begins in 1878 with Pennoyer v. Neff.90 Pennoyer is, by turns, fascinating and
frustrating. It nods to problems of notice, federalism, inconvenience, and
pragmatism, and Justice Field ties himself into knots trying to accommodate
all of these concerns within territorial rules and exceptions to those rules. In
quip to Sam Issacharoffthat “[a]n MDL is like a Roach Motel, cases check in but they never
check out”), with Eldon E. Fallon et al., Bellwether Trials in Multidistrict Litigation, 82TUL. L.
REV. 2323, 2330 (2008) (noting that “MDL . . . can resemble a ‘black hole,’ into which cases are
transferred never to be heard from again”).
88 See Burch, Monopolies, supra note 18, at 85 (outlining the advantages for plaintiffs
remaining in state court).
89 See, e.g., Anderson v. Bayer Corp., 610 F.3d 390, 392 (7th Cir. 2010) (involving an attempt
to circumvent the removal process mandated by CAFA).
90 Pennoyer v. Neff, 95 U.S. 714, 719 (1878). See generally Stephen E. Sachs, Pennoyer Was
Right, 95 TEX. L. REV. 1249 (2017) (explaining Pennoyer’s lasting importance in the law of
short, Pennoyer is an ambitious mess9.1 Its problems remain with us, and
they resurface once again in Bristol-Myers.
In particular, two aspects of Pennoyer continue to loom large: its
linkage of the limits of a state’s jurisdiction to its territorial sovereignty, and its
enshrinement of those limitsin the Due Process Clause of the Fourteenth
Amendment.92 As most law students would remember, under thePennoyer
regime, limitations on jurisdiction correlated directly with a state’s
territorial borders—a state’s power over people and property within thsetate was
absolute, but its process could not run outside the state.93
Though this almost mystical concept was elegant, it simply could not
keep up with reality. As time marched on and interstate activity increased, it
became clear that a state often had a legitimate interest in deciding cases
against out-of-staters. After a period of employing legal fictions to
accommodate the Pennoyer regime to modern problems,94 the Supreme Court
seemingly abandoned it in 1945 withInternational Shoe Co. v. Washington.95 In that
case, Chief Justice Stone explained that a state’s ability to exercise juriscd-i
tion over a defendant was a function of fairness and not tetorrriial borders:
hence the catechism that a state’s jurisdiction depends on whether thee-d
fendant has “certain minimum contacts with it such that the maintenance of
the suit does not offend ‘traditional notions of fair play and substantial
Over the next several decades, the Supreme Court sporadically decided
personal-jurisdiction cases in an attempt toput meat on the bones of the
International Shoe test.97 The states, now freed from having to pay lip
Alaska.256 Or it might be fundamentally unfair to force plaintiffs to litigate
far from home when the argument for consent is so thin. After all, the
plaintiffs may have filed their cases in appropriate state courts, and the defendant
may have removed them and successfully sought transfer to an MDL
located far across the country. In that sense, MDL plaintiffs are even worse off
than absent class members under Shutts, who could at least opt out and go it
alone in the forum of their choice2.57 MDL plaintiffs are stuck in the MDL
forum until the MDL judge determines that pretrial proceedings are over
and lets them go. MDL must therefore be structured in a manner that will
ensure that plaintiffs from around the countrycan effectively participate in
In any event, our intent is not to assess whether MDL passes
constuittional muste—ra distinct question beyond the scope of our argument
here.258 What is more important for our purposes is that courts have not yet
been troubled by questions of personal jurisdiction in MDL, despite its
somewhat tenuous relationship to the underpinnings of jurisdictional
doctrine. This is because the magic of MDL lies in its ability to facilitate
aggregation without offending otherwise applicable litigation norms. MDL’s
ability to accommodate traditional norms of individual litigation has been the
key to its success. In other words, because MDL can be shoehorned into the
doctrinal limitations on individual lawsuits, it avoids the underlyi,nagnd
more difficult, theoretical questions. The ease with which MDL facilitates
nationwide aggregation while accommodating the jurisdictional limits of
our federal system has allowed it to fulfill its destinBy.ristol-Myers only
furthers that trend.
III. IMPLICATIONS OF MDL’S ASCENDANCY
After Bristol-Myers, if plaintiffs want to aggregate a nationwide set of
claims, they will likely have to do so on the defendant’s term—s either in a
state where the defendant has chosen to base its operations or a federal
MDL. If our prediction is correct that most plaintiffs will prefer MDL, the
result will be increased federalization of matsosr-t litigation. Some fifty
years after its passage, the MDL statute’s architects’ vision will have come
to fruition: nationwide dispute—seven those involving state-law claims—
will be handled together in national courts.
257 Cf. Shutts, 472 U.S. at 812 (providing class action plaintiffs with the option to leave the
class and file on their own in state court).
258 For one of our thoughts on this question, see Bradt, Long Arm, supra note 29, at 1228–29.
This federalization of mas-tsort litigation is not just a story about
MDL; it is part of a broader trend toward federalization of disputes arising
out of national economic activity. Most obviousl,yCongress has been
expanding federal regulation over the national economy ever since the New
Deal.259 But, as Samuel Issacharoff and Catherine Sharkey point out, trends
toward federalization have played out more subtly across a number fo
doctrines.260 Preemption displaces stat-elaw claims with federal la2w61. The
Supreme Court’s punitive damages decisions impose federal constitutional
limits on state-law remedies.262 Expansive views of federalquestion
jurisdiction transform some state-law claims with federal ingredients into
federal claims, while supplemental jurisdiction sweeps other s-talatew claims
into federal court.263 Even the Supreme Court’s recent Federal Arbitration
Act jurisprudence moves state-law cases out of state court and into
aribtration, which is ultimately overseen by the federal courts.264
And, of course, CAFA moved state-law class actions of national scope
into federal courts.265 By making nationwide aggregation in state courts
impracticable, except in the states that plaintiffs infd least desirable,
BristolMyers continues the trend towards federalization of aggregate litigation.If
we are correct thatBristol-Myers means that far more masst-ort litigation
will be consolidated in federal MDL, this development raises two questions:
does federal MDL fit within our inherited notions of federalis m,and what
should we think of MDL’s dominance as a normative matter?
A. How MDL Facilitates Federalization of State-Law Claims
Consolidation of a mass tort in MDL presents attractive opportutniies
to plaintiffs, defendants, and the courts. Most importantly, federal MDL
offers the possibility of a complete resolution of all related claims. Although
all sides may prefer other alternatives—defendants may prefer no
tion at all and plaintiffs may prefer the leverage that comes with class
certification—MDL may be a middle ground on which all sides begrudgingly
agree.266 That plaintiffs and defendants gravitate toward MDL as the best
available option for handling and resolving mass litigation, however, is not
sufficient for its success. After all, both plaintiffs and defendants favored the
class-action settlements that the Supreme Court invalidated inAmchem
Products, Inc. v. Windsorand Ortiz v. Fibreboard Corp2.67 For MDL to work it
must also sufficiently “fit” with norms of due process and federalism, which
developed in the context of one-on-one litigation. MDL thrives because it can
facilitate aggregation while maintaining fidelity to thosenorms, at least on
the surface. Perhaps ironically, MDL may simultaneously undermine those
norms in subtle but profound ways. But that is the magic of MDL. In a very
real sense, MDL “works”because it allows for aggregation, where CAFA
“failed” because it causes most class actions to be dismissed.268
Bristol-Myers—and its interaction with choice of law—is a superb
illustration of this dynamic. As discussed above, Bristol-Myers opened a new
avenue for contesting personal jurisdiction. Rather than focus on the burden
on the defendant or the unpredictability of litigating in the forum, Brist-ol
Myers’s candid position throughout the litigation was that aggregation of
the nationwide set of claims in California was unconstitutionally unfair
because California’s courts would be too friendly to the plaintiffs.269 Indeed, a
primary reason why the California Court Aopfpeals rejected Bristo-l
Myers’s position was that it did not consider the company’s interest in
avoiding a plaintif-ffriendly forum to be one recognized or protected by
personal jurisdiction doctrine.270
The U.S. Supreme Court obviously came to a different conclusion, but
it had a difficult time justifying why it would be better for the cases to be
dispersed in state courts around the country rather than consolidated in
California. The Court did not seem to think that the burden on Bristo-lMyers of
266 See Howard M. Erichson & Benjamin C. Zipursky,Consent Versus Closure, 96 CORNELL
L. REV. 265, 270 (2011) (framing MDL as the middle ground for plaintiffs and
defendants);Mullenix, Death of Democratic, supra note 21, at 552 (characterizing MDL as the preferred means for
settling huge liabilities).
267 Ortiz v. Fibreboard Corp., 527 U.S. 815, 825(1999); Amchem Prods., Inc. v. Windsor,
521 U.S. 591, 601 (1997).
268 CAFA, of course, was designed to fail, and MDL was designed to succeed—albeit by two
different sets of statutory drafters with very different purposes. See Bradt, Radical Proposal, supra
note 22, at 913; Burbank, Historical Context, supra note 10, at 1517.
269 See Transcript of Oral Argument, supra note 157, at 15 (arguing that plaintiffs chose
California because it was“jurisdictionally advantageous for them, either procedurally or
270 Bristol-Myers Squibb Co. v. Superior Court, 175 Cal. Rptr. 3d 412, 436 n.20 (Ct. App.
litigating in California was great2.71 And even assuming that interstate
federalism may act as an independent limitation on a state court’s jurisdiction,
the Court never explained why California’s exercise of jurisdiction was
offensive or which sister states could have rightly taken offense.272
Perhaps one reason for this confusion is that Bris-tMolyers sounded
more like it was arguing in favor of federal diversity jurisdiction than for
limitations on personal jurisdiction. The assumption underlying Br-istol
Myers’s position is that California judges cannot be presumed to treat an
out-of-state defendant like Bristol-Myers fairly. As a result, although
Brsitol-Myers must accept litigating in California courts when it comes to
injuries to Californians, to require it to face litigation there arising from injuries
to residents of other states is unfair. Such an argument hews more closely to
the traditional justification for including diversity jurisdiction in Article III,
namely, that state courts cannot be trusted to treat-ofo-ustaters
evenhandedly.273 Here, of course, the argument is deployed in service of
dismissing claims against Bristo-lMyers brought by fellow ou-tof-staters, but
the concern seems to be that California’s bias either extends to all plaintiffs,
or that its preference for its own citizens will spill over onto an ou-tof-state
corporation. The subtext of Bristol-Myers’s position is that if it faces a
antionwide set of claims, only the judges of its home state or a federal judge
overseeing an MDL can be presumed to treat Bristo-lMyers fairly. The
Supreme Court apparently agreed.
Imposing these diversity-esque arguments on the personaljurisdiction
framework makes for an odd fit. The Court suggests that a reason why
California may not hear the out-of-state plaintiffs’ claims is that doing so would
interfere with the prerogatives of sister state2s7.4 Although the Court does
not elaborate, one might argue that California simply has an insufficient
interest in adjudicating those claims, and to do so in the face of stronger
interests of other states would be imperialistic. Nevertheless, despite the
271 See Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1773, 1780 (2017)
(emphasziing the federalism interest, while at the same time deemphasizing the inconvenience of litigating
in a distant forum).
272 See id. (declining to address which other states retained an interest in the litigation).
273 See, e.g., Bank of the U.S. v. Deveaux, 9 U.S. (5 Cranch) 61 (1809) (Marshall, J.)
(accepting the argument that diversity jurisdiction guards against prejudice in the state courts);THE
FEDERALIST NO. 80 (Alexander Hamilton) (justifying the need for federal courts and their power to
hear diversity jurisdiction cases); Henry J. Friendly,The Historic Basis of Diversity Jurisdiction,
41 HARV. L. REV. 483, 492 (1928) (exploring the historical reasons for assigning diversity
jursidiction cases to the federal courts).
274 Bristol-Myers, 137 S. Ct. at 1780–81. Indeed, at oral argument, Justice Gorsuch was
praticularly concerned about this point, askingBristol Myers’s counsel “what implications there are
for the interests, say, of Ohio in administering its own procedures with respect to its own citizens
for torts that occur in its own State.” Transcript of Oral Argument, supra note 157, at 25.
Court’s apparent concern for horizontal federalism, it implicitly endorses
nationwide aggregation in the federal courts through MDL. The Court is not
worried about the vertical-federalism implications of its decision. To put it
bluntly, the Court is quite concerned about California taking cases that
should rightfully be decided by other states, but it is wholly unconcerned
about those cases being decided by a single federal court in MDL, whether
it is located in California or anywhere else.
The Court’s conclusion in this regard echoes the non-cynical rationale
for CAFA—that federalization of nationwide or multistate class actions is
appropriate for cases of national scope2.75 And, indeed, there are legitimate
and compelling arguments that the courts of a single state should not govern
the nation and that the national interest in efficient adjudication is
appropriately effectuated by federal jurisdiction.
Of course, the cynical reading of CAFA is that Congress intended to
shift nationwide class actions into federal courts, where they would be dead
on arrival because the questions of fact and law common to the class would
never predominate.276 Under the rule of Klaxon v. Stentor, a federal court to
which a class action is removed under CAFA must apply the choic-eof-law
rules of the state in which it sits2.77 If that state’s rules dictate that different
substantive law must be applied to different plaintiffs within the class, then
under the dominant view of Rule 23(b)(
), the disparate questions of law
overwhelm the common ones. As a result, class actions based on state law
removed to federal court are unlikely to be certified unless the federal court
can find some way to massage the choice-of-law analysis to dictate the
application of a uniform substantive law.278 In fact, that was one reason CAFA
was thought to be devastating for plaintiffs.279
Requiring federal courts to apply state law when adjudicating state-created rights, Erie
forced daunting choice of law problems to the forefront in those actions and thereby
became a major obstacle to class certification. It was preciseltyhe obstacle that Erie
created, of course, that made CAFA such an effective pro-defendant statute.
Purcell, CAFA, supra note 69, at 1925 (footnote omitted).
MDL, however, is not burdened by the limitations of Rule 23(b)(
Judge Becker, the primary advocate for the MDL statute, fought vigorously
against adding a predominance requirement sought by corporate
defendants, explicitly because he did not want to see individual qusteions of fact
and law prevent the aggregationthat he thought was necessary to counter
the coming litigation explosion in mass torts. Even in 1967, Becker
undrestood that, in cases based on state law, different choic-oef-law rules could
prevent aggregation under any rule that required predominance.280
Doctrinally, the lack of a predominance requirement means that the
“fifty-state-law problem” that has plagued the mas-stort class action is no
obstacle to aggregation in MDL. And because there is no requiremeint
MDL that the law applicable to all of the component cases be the same,
there is no pressure to alter the choi-coef-law rules that would otherwise
apply in order to facilitate aggregation. Formally, MDL can leave usn-di
turbed the law applicable to each individual case within the collective.281
Perhaps more important than MDL’s ability to aggregate while
accommodating Klaxon doctrinally is its consistency withKlaxon’s
underlying theory of vertical federalism. This is the key to understanding how the
Court in Bristol-Myers can assert an aggressive defense of personal
jurisdiction as a means of policing interstate federalis,mwhile also ignoring the
likely effect of its decision—that the cases willultimately wind up out of
state courts altogether and in federal MDLsB.ristol-Myers prevents states
like California from infringing the prerogative of other states to decide
csaes in which they have a greater interest or connection, but it facilitates
aggregation of those claims in a single federal district court.
Klaxon, of course, is an early progeny oEfrie Railroad Co. v.
Tompkins.282 The holding in Klaxon—that a federal court sitting in diversity must
apply the choice-of-law rules of the state in which it sits—was thought to be
a necessary corollary ofErie itself for two reasons articulated by Justice
Reed in his opinion for a unanimous Court. First, if a federal court could
apply its own independently determined choic-eof-law rules, it would be a
threat to the principle of intrastate vertical uniformity. If different
choice-oflaw rules apply in federal and state courts, the courts might reach different
outcomes solely because of the “accident of diversi2t8y3.”Such a result
280 Bradt, Less and More, supra note 43.
281 Bradt, Shortest Distance, supra note 231, at 793 “(MDL accommodates well both the
Klaxon/Van Dusen framework and its underlying policies.”).
282 See id. at 769–77 (providing a detailed discussion of the history ofKlaxon); see also
Roosevelt, supra note 74.
283 Klaxon, 313 U.S. at 496.
would risk recreating the forum shopping that the Court rejected inErie.284
Central to Justice Brandeis’s thinking in Erie was the recognition that
corporations used removal to shop for attractive law in the busin-efsrsiendly
federal courts.285 Hence, the famous abuse inBlack & White Taxicab&
Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., where a monopo
list reincorporated in a neighboring state to create diversity because the
federal courts would enforce its exclusive contract and enjoin its competitor
when the state courts would not2.86 If federal courts could chooseto apply
law different from that which would apply in state court, then the evils of
Swift v. Tyson would be replicated.287 Second, the Court inKlaxon
recognized that a state’s choice-of-law rules are substantive law reflecting state
policy. For federal courts to preempt those evwi s, without direction from
Congress, would be a threat to states’ prerogatives and an overreach
reimniscent of the “general law.” 288
Klaxon, combined with Bristol-Myers and MDL, promotes a coherent
idea of federalism, both horizontal and verticalB. ristol-Myers effectively
eliminates aggregation of nationwide claims in states that would have only
a tenuous interest in the claims of ou-tof-state plaintiffs. Those claims now
must be filed in a state that would have a sufficient interest—whether that is
a state with specific or general jurisdiction under the Court’s current
framework. In theory, then, the state in which the case is filed will also have
a sufficient interest in applying its choic-eof-law rules (and potentially
Whatever lack of uniformity this may produce between federal courts in different
states is attributable to our federal system, which leaves to a state, within the limits
permitted by the Constitution, the right to pursue local policies diverging from those
of its neighbors. It is not for the federal courts to thwart such local policies
beynforcing an independent ‘general law’ of conflict of laws.
rum law where permissible) to the claims asserted. In that
sensBer,istolMyers’s policing of forum shopping also serves to police law shopping in
the vein that the Court has long followed.This is especially true in a world
in which actually policing law shopping through constitutionallimitations
on choice of law has proven unworkable.
As we have noted, however, most of these cases are likely not going to
remain in state court. Instead, they will be removed and transferred into an
MDL. But the MDL court is required to apply the choice-of-law rules of the
state of the district court from which the case was transferred.289 As a result,
MDL facilitates a nationwide aggregation while accommodating both the
vertical uniformity demanded by Klaxon and Erie, and the horizontal
federalism of Bristol-Myers. MDL i,s therefore, fundamentally different from
CAFA—federal jurisdiction is employed to promote aggregation while
maintaining fidelity to state law. Where CAFA was a Trojan horse, sending
nationwide disputes to federal court to perish on the spear of Rule 23’s
perdominance requirement, Bristol-Myers channels nationwide disputes into a
procedural vehicle in federal court that is actually designed to handle
them—MDL. Bristol-Myers gets the best of all worlds—a federal judge it
presumes to be unbiased, a forum that permits aggregation without the risk
of class certification, and assurance that a single plaintif-ffriendly state law
will not apply to a nationwide set of claims. As a matter of federalism, MDL
threads the needle between the policies of tienrstate comity demanded by
Bristol-Myers and intrastate uniformity demanded by Erie and Klaxon.290
B. Is MDL’s Shape-Shifting Beneficial?
Although MDL pushes all of the right doctrinal buttons, whether it
actually promotes the policies underlyinBgristol-Myers and Klaxon, and
whether it is good litigation policymore generally, are different questions.
What should we think of federalizing nationwide mass litigation—even that
which involves state-law claims—and centralizing it before a single federal
judge for coordinated proceedings?
In many ways, it makes a lot of sense for the nation’s courts to handle
disputes that are nationwide in scope. Centralization of control over aggregate
litigation in a single forum has many advantages for both the parties involved
289 Van Dusen v. Barrack, 376 U.S. 612, 615 (1964); see Bradt, Shortest Distance, supra note
231 (explaining that the choice-of-law rules of the transferor state apply).
290 Cf. Mary Kay Kane, Drafting Choice of Law Rules for Complex Litigation: Some
Preliminary Thoughts, 10 REV. LITIG. 309, 320 (1991) (“[I]dentifying a single governing law . . . may be
challenged as inappropriately intrusive on historic federalism interests and the rights of states to
establish and enforce their own policy decisions.”).
and the judicial system. But it also creates risks, both in terms of the
federalism policies MDL facially advances and to the parties who are caught up in it.
Although MDL’s great asset is its ability to accommodate traditional litigation
norms, the combination ofBristol-Myers and MDL centralizes power in the
federal MDL system. Whether that turns out to be good or bad will depend on
how that power is channeled and wielded in the MDL process.
1. MDL’s Fit with Federalism
Structurally, MDL avoids the choice-of-law problems that plague class
actions. Because the necessity of applying different states’ laws does not
prevent aggregation, MDL can flourish without demanding any rethinking
of Klaxon. In practice, however, Klaxon may really be honored only inthe
breach. Ironically, the very aggregation that MDL’s formal adherence to
Klaxon allows, inevitably leads to some smoothing out of differences in the
To be sure, choice of law matters in MDL. When dispositive motions are
decided, they must be decided according to the state law thtahte transferor
court would have applied2.91 And when juries are instructed in bellwether
trials, they must be instructed according to the law that would have applied
absent the transfer, even if the parties have consented to trial in the MDL
At the same time, however, MDLs are often resolved without -fine
grained attention to state law. Dispositive motions are sometimes decided in
relation to so-called “consolidated complaints” that make only cursory
distinctions between the laws applicable to different plaintiffs’ claims2.93 And
when an MDL judge grants summary judgment becausethe plaintiffs’
proposed causation expert did not pass muster under Federal Rule of Evidence
702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., that is done
according to the federal standar2d9.4 Perhaps more importantly, when cases are
resolved by global settlement agreement, those agreements—at leatsthose
made public—do not typically value the claims based on differences in the
applicable state law2.95 That said, if an individual claimant believes he
would do better at a trial decided under the applicable state law, he can
always choose to reject thesettlement and take his chances on remand. That
this occurs so rarely probably has more to do with the dynamics of mass
settlement than any detailed assessment of choice of law by claimants and
Finally, applying so many different states’wsla and choic-eof-law
rules is an extraordinarily complicated judicial task. As Larry Kramer has
demonstrated, the pressure to avoid such complexity may create an
irresitsible temptation to elide the differences in state law.297 Although such a
concession to the shortness of life is not in keeping with the spirit oKflaxon,
one can hardly blame judges faced with the enormity of a massive MDL for
making their assignment as simple as possible. Indeed, more and more
lawyers on both sides opt to directly file their cases into MDLs, without regard
to the choice-of-law implications of doing so (often to their clients’ die-tr
ment), suggesting that attorneys may be motivated by similar incentives to
Because so many MDLs are settled without regard to the varitaions in
state law that would apply if the claims were litigated individually, the
differences in state law so studiously respected by Klaxon tend to be smoothed
out. What results is not something as blunt as Judge Jack Weinstein’s
attempt to forge a “national consensus law” inIn re Agent Orange Product
Liability Litigation,299 but something more subtle—an undermining of the
Klaxon principle while formally following it. This is the brilliance of MDL
in a nutshell—it facilitates a nationwide aggregation that formally respects
our inherited norms while also sweeping them aside in the name of mass
resolution. It is, in other words, a efderalization of tort law without saying
so—and in fact, saying quite the opposite.
Whether this is a good or bad thingis somewhat beside the point. The
deed is done. By channeling nationwide aggregation into MDL, thue- S
preme Court in Bristol-Myers has amplified this federalization trend. And
there is potentially much to be said for it.
There are benefits to resolving litigation of nationwide scope in federal
court instead of state court. Nationwide mass tor—ts even those based
entirely on state law—often implicate federal law. Medical devices, drugs,
automobiles, and many other consumer products that are frequently the
subject of mass-tort litigation are regulated by a host of federal agencies (e.g.,
Food and Drug Administration (FDA), National Highway Traffic and Safety
Administration (NHTSA), Consumer Product Safety Commission (CPSC)),
and courts handling these claims will often have to interpret the preemptive
force of these regulations.300 Further, whether or not the defendant complied
with federal regulations will often impact its liability under state tort law.
For example, some states treat failure to comply with FDA regulations as
negligence per se. Although the Supreme Court has said that this sort of
federal ingredient in a state law claim is usuallyinsufficient to invoke
federal question jurisdiction, there is a risk that state courts might reach nc-o
flicting interpretations of the same federal laws.301 Similarly, when it comes
to federal constitutional limits on punitive damages (another regular feature
of mass torts), different state courts might reach different interpretations as
to what those limits are, potentially subjecting defendants to multiple
pnuishments for the same conduct3.02 Concentrating nationwide mass-tort
litigation in federal MDL courts may lead to more uniformity on these sorts of
federal issues than leaving the cases to be decided in multiple state courts,
subject only to the Supreme Court’s limited ability to correct s-tcaoteurt
errors after final judgment and appeal.303 And as a straightforward matter of
justice, there is appeal in victims being treated alike regardless of where
they reside or are injured.
If Klaxon is watered down, many would applaud the development,
nicluding Henry Hart, were he still alive. Hart loathKedlaxon because he
thought the federal courts were generally fairer than state courts, and
particularly when it came to choice of law.304 In Hart’s view, federal courts should
develop a federal common law of choice of law, rather than hew to states’
choice-of-law rules, which he believed would inevitably be parochi3a05l.
Allowing the federal courts to make choi-coef-law determinations would
reduce the incentive for plaintiffs to engage in interstate forum shopping3.06
Hart’s view, in that sense, is rather in line with the Supreme Court’s in
Bristol-Myers. The Court’s concern for policing plaintiff forum shopping in
Bristol-Myers increased the likelihood that nationwide mass torts would be
consolidated in a single federal forum that defendants presume will at least
be less parochial than California.
The MDL statute does not overruleKlaxon. But for those sympathetic
to Hart’s position, MDL judges might be counted on to interpret states’
choice-of-law rules in ways that will be less biased toward application of
forum law than state judges might be. The result, paradoxically, may be that
federal control promotes more respect for different states’ laws than
consolidation in a single state court, which may be more inclined to apply itsown
law to govern the whole nation. Handling nationwide disputes at the federal
level would, therefore, limit the spillover effects that inevitably occur when
states attempt to apply their own substantive law or procedural rules
tocativity that crosses state lines, even if it comes with a little osomthing out
around the edges.307 In the end, channeling nationwide litigation into a
snigle federal court may be a defensible theory of allocating cases between
local and national courts.
As Edward Purcell has taught us, however, the principal shortcoming
in Hart’s thinking was that he dismissed the problems oifntrastate
disuniformity, and the system of vertical forum shopping by defendants it
fos(2004) (elaborating on the idea that federal courts should decide issues of federal law and state
courts should decide issues of state law).
304 Henry M. Hart, Jr.,The Relations Between State and Federal La w, 54 COLUM. L. REV.
489, 514–15 (1954); see PURCELL, BRANDEIS, supra note 9, at 251–52 (describing how Hart
viewed state courts when choice of law was at issue).
305 PURCELL, BRANDEIS, supra note 9, at 252.
306 Hart, supra note 304, at 515 (“The federal courts are in a peculiarly disinterested position
to make a just determination as to which state’s laws ought to apply where this is disputed.”).
307 See Issacharoff & Sharkey, supra note 30, at 1386–89 (arguing in support of the benefits
of national uniformity as against the dangers of state laws that cater to local concerns andbiases).
tered, which led to Erie itself.308 So although there is appeal in MDL’s
capacity to smooth out the differences instate law in nationwide disputes, it
comes with the risk that states’ regulatory interests and plaintiffs’
subsntative rights under state law will be subverted in service of the goal of ie-ff
cient resolution of cases. Each plaintiff may, of course, insist no fidelity to
Klaxon by opting for remand to the district in which the case was filed for a
trial under the law that would apply in that state. But the realities of MDL—
lengthy proceedings, centralized prosecution by the steering committee, and
settlements designed to discourage opting out—may make remand moreof
a theoretical possibility than an attractive option. If the MDL process works
unfairly in defendants’ favor, then there is a risk of replicating the defects
that provoked Erie.
In sum, regardless of one’s view of Klaxon, it is likely that the
contniued dominance of MDL, boosted byBristol-Myers, will advance the
federalization trend. Such federalization will not be complete, however, because
the MDL court must follow Klaxon when it is pertinent. The real question in
MDL will be whether its dominance will replicate the problem that unrd-e
girded Justice Brandeis’s opinion in Erie: whether the federal courts will be
overwhelmingly friendly to corporate defendants at the expense of pnl-ai
tiffs. The answer to that question depends less on whetheKrlaxon is
followed to the letter, and more on how MDL courts exercise the power they
now have. In short, if the cases are going to be centralized before a single
federal judge, and almost certainly resolved througha mass settlement, the
crucial question becomes how to ensure that those settlements are fuan-d
2. MDL’s Centralization Power
Although we have portrayed federal MDL as aggregation on defde-n
ants’ terms—at least when compared to a world where palintiffs can bring
nationwide litigation in the state court of their choosing—it is not only
defendants who benefit. Consolidating nearly all litigation arising out of a
nationwide course of conduct in a single federal forum, rather than allowing
plaintiffs to maintain parallel aggregate litigation in state courts, may also
work to the advantage of the judicial system, society, and even plaintiffs
Some potential benefits are obvious, like the efficiencies that can be
gained by avoiding duplicative pretrial proceeding,s such as discovery and
308 PURCELL, BRANDEIS, supra note 9, at 248 (“Hart elevated Erie to the rank of first
principles by stripping it of political and social content and by denying the Progressive values that had
motion practice, and the legal fees and judicial resources that theyn-co
sume.309 By making nationwide or multistate aggregations impractical or
unattractive in state court,Bristol-Myers also mitigates a problemthat has
bedeviled MDL for years—how to handle parallel state court litigation31.0
Federal MDL judges and state judges managing parallel proceedings have,
for the most part, shown a remarkable ability to work together to coordinate
these matters as much aspossible.311 But reducing the need for such
intresystem coordination would undoubtedly yield savings for all involved and
avoid those instances where federal and state judges butt heads.
Beyond the savings from avoiding duplicative proceedings, complete
(or near complete) aggregation may actually create value for the parties
involved. Defendants are often willing to pay a peace premium for a global
settlement that can resolve all of the claims in a single transaction.312 Doing
so allows them to avoid the risk of adverse selection—that is, overpaying to
settle the weakest claims only to be left facing the strongest claims in
cnotinued litigation—as well as the negative publicity and drag on stock price
that is often disproportionate to the number of remaining cliams.313 Simply
put, defendants will often pay extra to put the whole dispute behind them,
and, indeed, often insist on very high participation thresholds as a condition
of any mass settlement3.14 Plaintiffs, therefore, stand to gain if they can
bundle all of their claims together and offer the defendant somethinpg- a
proaching total peace.315 Having nearly all of the claims consolidated in a
federal MDL, managed by a single plaintiffs’ steering committee, may make
it easier for plaintiffs to bundle them up than if many claims are also
pending in multiple parallel state-court proceedings.316 Additionally, this
centralization reduces opportunities for competing lawyers to use stat-ecourt
proceedings to attempt to sabotage or hold up a global settlement reached in
Indeed, some scholars have argued that anything short of complete
aggregation in mass torts leaves plaintiffs (and society) worse off.317 Although
some plaintiffs may prefer to control their own claims—either because they
have atypically strong claims or because they hope to strategically hold up a
global settlement in exchange for a side paymen—t doing so may come at
the expense of the group of plaintiffs as a whole and undermine the der-te
rent effect of mass-tort litigation.318 But one need not goso far to see that
there is strength in numbers, and procedures that facilitate aggregat—ion
even over the objection of some individuals—can increase plaintiffs’
collective leverage in settlement negotiation3s1.9 MDL will never go as faro-t
wards complete aggregation as the mandatory class action thatthese
scholars advocate. Plaintiffs who reside in the defendant’s home states may be
stuck in state court, unable to join the federal M32D0 LO. ther plaintiffs
might decide to take their chances suing alone in their home states, perhaps
315 Rave, Anticommons, supra note 32, at 1195.
316 See id. at 1202 (noting how consolidation in MDL can reduce transaction costs of bundling
claims for sale to the defendant).
317 David Rosenberg, Mandatory-Litigation Class Action: The Only Option for Mass Tort
Cases, 115 HARV. L. REV. 831, 847–53 (2002) [hereinafter Rosenberg, Only Option]; David
Rosenberg, Class Actions for Mass Torts: Doing Individual Justice by Collective Means, 62 IND. L.J.
561, 570–72 (1987).
318 Rosenberg, Only Option, supra note 317, at 847–63; see also Sergio P. Campos, Mass
Torts and Due Process, 65 VAND. L. REV. 1059, 1087 (2012) (“[L]aw enforcement in mass tort
litigation is a ‘public good’ . . . .”).
319 See Rave, Anticommons, supra note 32, at 1198–1201, 1248–49.
320 Nondiverse parties raising statel-aw claims cannot invoke the federal cou’rtsdiversity
jurisdiction. A determined plaintiffs’ lawyer who wanted to be in the federal MDL and not in state
court in the defendant’s home state may be able to structure an aggregation of plaintiffs from the
defendant’s home state to trigger federal jurisdiction underthe minimal diversity requirements of
CAFA’s mass-action provision by joining a large group of o-uotf-state plaintiffs along with the
home-state plaintiffs in a single complaint.28 U.S.C. § 1332(d)(
) (2012). There would have to
be more than one hundred total plaintiffs, more than one-third would have to be from out of state
to avoid CAFA’s home state exemption. Id. § 1332(d)(
). And the out-of-staters would have to be
content with the defendan’ts home state’s choice-of-law rules under Klaxon. But it is doable.A
single plaintiff from the same state as the defendant suing alone for product liability, however,
will be stuck in state court. U.S. CONST. art. III; 28 U.S.C. § 1332(a). And a plaintiffs’ lawyer who
preferred to litigate in the defendan’ts home state could easily keep an aggregation ocflaims in
state court there.
hoping to free ride on the MDL. And, of course, plaintiffs in MDL are not
bound by any global settlement unless they affirmatively opt into it; they
can always threaten to hold ou,t wait for remand, and take their claims to
trial. But by reducing the opportunities and incentives for rival plaintiffs’
lawyers to set up competing aggregations in the state courts of their choice
and forcing them to work together in MDLB,ristol-Myers may in some
ways actually strengthen the plaintiffs’ hand as a group and increase the
deterrent effect of their litigation.
Still, the near total aggregation of nationwide litigation in MDL also
comes with risks. Centralization of cases in MDL increases thpeower of
both the MDL judge and the cour-tappointed lawyers who manage the
liitgation on both sides. And new risks arise any time power is concentrated.
With potentially thousands of cases consolidated in an MDL, the judge
cannot simply let the plaintiffs run their own cases through their own
lwayers. Out of practical necessity, control over the course of the litigation is
centralized in a handful of lawyers on the cour-atppointed plaintiffs’
steering committee.321 Those lawyers make most of the important strategic
decisions on what discovery to pursue, which experts to hire, which cases to
push forward towards bellwether trials, and lead the negotiations toward
possible global settlements. So, although each plaintiff in the MDL has
hired his or her own lawyer, those lawyers typically have little input into
how their clients’ individual cases are litigated for as long as they remain
consolidated in the MDL.322 They are at the mercy of the lead lawyers until
the MDL judge determines that pretrial proceedings areover or the parties
reach some sort of global settlement agreement.
When so much power is consolidated in the hands of a small group of
lawyers, the usual risk of any princip-aalgent relationship arises: the lead
lawyers might sell out the plaintiffs in teh MDL by cutting a deal with the
defendant to settle on the cheap in exchange for generous fees.323 Of course,
the agency risks are not as stark as in a class action. The lead lawyers will
still have to pitch the deal to the plaintiffs, who must opt in to be bound, and
in an MDL, those plaintiffs will typically have their own lawyers. But even
when they are separately represented, MDL plaintiffs will often lack suif-f
cient information to evaluate the settlement offer, and their lawyers may not
321 See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 10.22 (2004) (describing how the
plaintiff’s steering committee operates).
322 See, e.g., Charles Silver, The Responsibilities of Lead Lawyers and Judges in Multidistrict
Litigations, 79 FORDHAM L. REV. 1985, 1986 (2011) (demonstrating that the lead lawyers are in
control for most of the MDL process).
323 See Burch, Monopolies, supra note 18, at 70–72 (identifying the danger of lead lawyers
selling out the plaintiffs in MDL litigation).
have the right nicentives to fully explain i3t.24 Indeed, some MDL
settelments contain powerful closure provisions designed to make it difficult for
plaintiffs to reject the settlement and to tie peripheral lawyers’ financial
incentives to their ability to deliver their entire inventories of plaintiffs.325 The
controversial In re Vioxx Products Liability Litigation settlement, for
example, required participating lawyers to withdraw from representing any client
who did not want to settle, essentially saying, “take the deal or find another
The more power that is concentrated in the hands of the lead lawyers,
the greater the risk that they will structure the deal with the defendant to
benefit themselves instead of the plaintiffs. And the more the lead lawyers
are able to suppress competitionfrom or co-opt rival lawyers, the greater
the chance that plaintiffs with atypically strong claims might findmt-he
selves with little choice but to accept a settlement that does not account for
the factors that make their claims so valuable, resulting in asort of
One of the limits on the power of lead lawyers in MDLs has been the
existence of competing power centers in parallel state court litigation.
Lawyers who have amassed substantial inventories of case—sinside or outside
of the MDL—can serve as a potent counterweight to the lead lawyers in the
MDL.327 And lawyers who haveassembled sizable state court
aggreagtions—like the one the plaintiffs tried to create in Bristol-Myers—have an
added degree of independence from the MDL lead lawyesr. Although these
outside lawyers often cooperate informally with the lawyers in the MDL,
sharing discovery, expert reports, trial materials, and the like, they are not
beholden to the MDL lead lawyers or shackled by their strategiic- dec
sions.328 These state court lawyers, operating on a different timetable in
front of a different judge, could often drive the litigation forward by pres-s
ing for trials in state court ahead of the MDL judge’s schedule for
bellweth324 Bradt & Rave, supra note 25, at 1281.
325 Rave, Closure Provisions, supra note 295.
326 Settlement Agreement § 220.127.116.11, In re Vioxx Prods. Liab. Litig., No. 0-5md-1657 (E.D.
La. Nov. 9, 2007).For competing takes on theVioxx settlement, compare Erichson & Zipursky,
supra note 266 (arguing that it violates several legal ethics rules), with Baker, supra note 34
(arguing that it is consistent with the ethics rules).
327 Richard A. Nagareda, The Preexistence Principle and the Structure of the Class Action,
103 COLUM. L. REV. 149, 168 (2003) (“What high-value damage claimants need is not so much a
‘day in court’ as the prospect of a different bargaining agent whose self-interest is not tied up with
the sale of [plaintiffs’] rights en masse so as to achieve maximum [closure].”).
328 MDL lead lawyers sometimes attempt to undercut or co-opt competing state-court lawyers
through common-benefit fee and settlement design, as Professor Burch has documentedB.urch,
Monopolies, supra note 18, at 112–19.
er trials, which may also help inform global settlement discussions32.9 And
lawyers who control substantial inventories of cases that they can manage
independently will often be in a position to push back against MDL lead
lawyers who might have gotten too cozy with the defendant or be willing to
shortchange some classes of plaintiffs.
If we are correct thatBristol-Myers will significantly limit plaintiffs’
ability to aggregate in state courts and that most plaintiffs will prefer MDL
to litigating on the defendant’s home turf, then Bristol-Myers may eliminate
some of these competing power centers and consolidate more control over
mass-tort litigation in the hands of MDL lead lawy3e30rsL.awyers who
might have tried to set up a competing nationwide aggregation in state court
will instead have to work through the MDL leadership structure, reducing
their independence and leverage.Although increased centralization of
liitgation in MDL has many benefits—not the least of which is making it
harder for state court lawyers to strategically hold up a dea—lit may also
weaken a potential competitive check on the lead lawyers in the MDL.
Discouraging parallel state-court aggregations also consolidates power
in the hands of the single federal judge tasked with overseeing the MDL.
This is, of course, exactly what MDL’s creators intended, as Judge Becker’s
quip about the dangers of “letting plaintiffs run their cases” illustrat3e31s.
But there is risk any time power is consolidated in the hands of a single
person. Indeed, some scholars have criticized MDL judges for acting impi-er
ously.332 Although we are generally optimistic about how MDL judges
exercise their power, we must admit that the formal mechanisms for checking
329 Id. at 136, 150–53. See generally J. Maria Glover, Mass Litigation Governance in the
Post-Class Action Era: The Problems and Promise of N-oRnemovable State Actions in Mul-ti
District Litigation, 5 J. TORT. L. 3 (2014) (focusing on the impact of state-court lawyers on MDL
330 Of course, Bristol-Myers will not eliminate all parallel sta-tceourt actions. Nationwide
aggregation is still possible in the defendant’s home state (and sometimes the only option for
residents of that state who are not diverse from the defendant). And plaintiffs can still sue individually
or in small groups in their home states if they can join a nodni-verse party. But by limiting their
scale and location, Bristol-Myers makes state-court aggregations less attractive to the major
players who could serve as the strongest counterweight to the MDL leadership.
331 Bradt, Radical Proposal, supra note 22, at 878.
332 See, e.g., Linda S. Mullenix,Dubious Doctrines: The Quasi-Class Action, 80 U. CIN. L.
REV. 389, 391 (2011) (criticizing MDL judges for enlarging their authority at the expense of pi-r
vate litigants); Martin H. Redish & Julie M. Karaba, One Size Doesn’t Fit All: Multidistrict
Litigation, Due Process, and the Dangers of Procedural Collectivism, 95 B.U. L. REV. 109, 110 (2015)
(arguing that the judicial process employed in MDL may violate the Due Process Clause;) Charles
Silver & Geoffrey P. Miller,The Quasi-Class Action Method of Managing Mult-iDistrict
Litigations: Problems and a Proposa,l 63 VAND. L. REV. 107, 111 (2010) (arguing that MDL judges
play an outsized role in choosing lead lawyers and setting their fees).
MDL judges are few and far betwe3e3n3. MDL judges have tremendous
flexibility and discretion in how they manage pretrial proceedings; indeed,
that is one of MDL’s great strengths in confronting the unique problems of
mass cases.334 But this broad discretion, combined with the fact that most
MDLs result in global settlementsw,ithout any sort of appealable final
judgment, often makes appellate review unavailable or unavailing.335
And even though the MDL judge cannot try transferred cases absent
the parties’ consent, plaintiffs are generally stuck in an MDL until the MDL
judge lets them go. The power to remand cases to the sdtriicts where they
were originally filed lies with the JPML. But the Panel seldom, if ever,
actually issues a remand order without the recommendation of the
judge.336 By making large-scale aggregation in state court impracticable and
decreasing the need for the MDL judge to cooperate with stat-ecourt
judges—and the ability of at least a subset of plaintiffs to potentially get
diffreent rulings from them—Bristol-Myers concentrates even more power in an
already powerful figure.
In short, the benefits of centralization to plaintiffs in terms of increased
leverage and the ability to offer peace in exchange for a premium create the
risks of agent disloyalty and individual plaintiffs getting short-changed. The
benefits to the judicial system and society of efficiency and -ctolo-ser
optimal deterrence come with the risk of concentrating power in the hands
of a single MDL judge. And the benefits to the defendant of the chance to
achieve a comprehensive resolution come with the risk of plaintiffs with
meritless claims coming out of the woodwork once a settlement n-is a
nounced, hoping for an easy payday. Whether the benefits of increased
centralization of power in MDL outweigh the risks will largely turn on how
MDLs are managed and resolved.Bristol-Myers thus increases the need to
focus on ensuring that MDL is both efficient and fair for all involved.
As MDLs have grown, a vibrant conversation has emerged about how
best to manage and resolve them. Scholar—sourselves included—have
offered proposals on matters as wide-ranging as how lead lawyers are chosen
333 See Bradt & Rave, supra note 25, at 1301–06 (arguing that we should trust MDL judges to
actively review mass settlement agreements to provide signals to plaintiffs).
334 See Pamela K. Bookman & David L. NollA,d Hoc Procedure, 92N.Y.U. L. REV. 767,
774, 840–45 (2017) (explaining how exceptional cases require ad hoc standards-based responses).
335 See Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place
in the Textbook Understandings of Procedure, 165 U. PA. L. REV. 1669, 1706 (2017) (discussing
obstacles to appellate review).
336 Burch, Remanding, supra note 21, at 418 (“[A]lthough parties may make remand requests
directly to the Panel, the Panel appears never to have granted a request without first receiving the
transferee judge’s blessing.”) (footnote omitted).
and compensated,337 how MDL judges handle choic-eof-law problems,338
how the litigation is financed,339 how bellwether trials are chosen and
managed,340 and the role of the MDL judge in supervising global settlements3.41
And, of course, with more cases consolidated in MDL proceedings, the
JPML’s choice of a transferee judge becomes all the more consequential.
With Bristol-Myers enhancing the already enormous footprint of MDL,
judges should take the opportunity to experiment with these proposals to
best guarantee that the power of MDL is deployed fairly.
Bristol-Myers professes modesty. It claims to have broken no new
ground in personal jurisdiction, but it in fact shifts the ground under one of
the fastest growing portions of the federal docket. By making aggregation in
state court impracticable or unattractive, Bristol-Myers will result, not in the
dispersal of cases in state courts around the country, but rather in the
wiedspread federalization of mass-tort litigation in MDL.
To some degree, Bristol-Myers is another move in the ongoing chess
match between lawyers on both sides in complex litigation. When
defendants successfully close off one avenue of aggregation, plaintiffs’ lawyers
open a new road.342 So it was here. When CAFA made nationwide mass-tort
class actions in state court a thing of the past, plaintiffs’ lawyers structured
non-class aggregations designed to avoid removal. Defendants countered
with a new strategy—to break up those aggregationsby attacking the state
court’s personal jurisdiction under the Supreme Court’s new restrictive
approach. This gambit was successful, and the results are likely to channel
more aggregate litigation into the federal courts under the auspices of MDL.
Defendants may have won this round, but there is no reason to believe
that it will be the lastone. With MDL now the best available playing field
for mass-tort litigation, both sides will continue to attempt to contort that
process to their best advantage. Indeed,as this Article and the burgeoning
scholarly work in this area demonstrate, there are many ways to subtlyn-i
fluence the process to the benefit of one’s client. From the ea-rsltyage
attempts to affect the choice of the MDL judge, to the staging of dispoisvite
motions, to the negotiation of settlement terms, opportunities aboundIn.
deed, those interested in wholesale changes to the MDL process might look
to persuade Chief Justice Roberts to make differeanptpointments to the
JPML or persuade the Rules Committee to intervene.343
We have also begun to see attempts to transform MDL litigation on the
whole, beyond the particulars of individual cas—esto “play for rules.3”44
After many years of unsuccessfully pushing legislation to “reform” class
action litigation with a bill entitled the “Fairness in Class Action Litigation
Act,” that bill reemerged in the Congresins 2017 after the Republicans
achieved unified control of the legislative and executive branch3e4s5. But
there was something different about this bill this time around: a brand new
section proposing numerous reforms to the nuts and bolts of MDL lait-ig
tion, including new requirements for pleading, bellwether trials, and
mandatory interlocutory appeals. The House passed the bill on a par-tlyine vote
without debating the proposals’ merits in hearings of any kind. Although the
legislation currently languishes in the Senate, the inclusion of the MDL
provisions signals a new front in the complex litigation wars.
And if MDL evolves too far to favor one side or the other, there isl-a
ways the possibility that aggrieved defendants or plaintiffs will mount a
frontal attack on MDL itself, arguing that the functionally nationwide
jurisdiction that MDL courts exercise in mass torts is unconstitutional forar-e
sons similar to those that convinced the Court inBristol-Myers. Although
we might not be persuaded, and consider it unlikely, one could certainly
imagine how a Supreme Court he-lblent on cutting back on the power of
MDL could find grounds for doing so by raising the argumnets against the
scope of MDL’s jurisdiction that have been ignored for the last fifty years.
343 Andrew D. Bradt & Zachary D. CloptoMn,DL v. Trump: The Puzzle of Pub-lLiacw
MDLs, 112 NW. U. L. REV. ONLINE 85, 89 (2018), https://scholarlycommons.law.northwestern.
344 Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
Change, 9 LAW & SOC’Y REV. 95, 100 (1974).
345 Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of
2017, H.R. 985, 115th Cong. (2017).
For the time being, at leasBt,ristol-Myers appears to have laid the
groundwork for a stable equilibrium where the major players will view
federal multidistrict litigation as the best available option for litigating and
ersolving mass torts. MDL has thus become the centerpiece of the civil
litigation system that its architects envisioned fifty years ago. And it is, indeed, a
powerful and flexible tool for resolvindgisputes that are nationwide in
scope. But the game is not over.
1 See, e.g., Katy Murphy ,As California Grows, Menlo Park and Other Bay Area Cities See Population Boom , SAN JOSE MERCURY NEWS (May 1, 2017 ), https://www.mercurynews.com/ 2017 / 05/01/as-california -grows-menlo-park-and-other-bay-area-cities- see- population-boom/ [https:// perma.cc/RQW6-QXBH].
2 Bristol-Myers Squibb Co. v. Superior Court , 137 S. Ct . 1773 , 1778 ( 2017 ).
3 See James M. Beck , Breaking News-Bristol-Myers Squibb Slams the Door on Litigation Tourism , DRUG & DEVICE L. BLOG (June 19, 2017 ), https://www.druganddevicelawblog.com/?s= Bristol-Myers+Squibb+Slams+the+Door+on+Litigation+Tourism [https://perma.cc/4EGQ-BYCR].
4 Brief for the Petitioner at 13, Bristol-Myers , 137 S. Ct . 1773 (No. 16 - 466 ).
5 Bristol-Myers , 137 S. Ct . at 1777.
6 Id. at 1781-82.
10 See, e.g., Ortiz v . Fibreboard Corp., 527 U.S. 815 , 81 ( 61999 ); Amchem Prods., Inc. v. Windsor, 521 U.S. 591 , 592 ( 1997 ); Stephen B . Burbank , The Class Action Fairness Act of 2005 in Historical Context: A Preliminary View , 156 U. PA. L. REV . 1439 , 1507 ( 2008 ) [hereinafter Burbank , Historical Context].
11 28 U.S.C. § 1332 (d) ( 2012 ) ; see STEPHEN B . BURBANK & SEAN FARHANG, RIGHTS AND RETRENCHMENT: THE COUNTERREVOLUTION AGAINST FEDERAL LITIGATION 140 ( 2017 ) (noting the “strategy of those proponents of CAFA[the Class Action Fairness Act of 2005] whose actual agenda, in vastly expanding the jurisdiction of federal courts to hear state law claims brought as class actions, was to ensure that the cases were not certified and went away”).
12 See Laura J. Hines & Steven S. Gensler ,Driving Misjoinder: The Improper Party Problem in Removal Jurisdiction, 57ALA . L. REV. 779 , 809 ( 2006 ) (describing mass joinders );Daniel Klerman & Greg Reilly , Forum Selling, 89 S. CAL. L. REV . 241 , 287 ( 2016 ) (same).
13 See, e.g., Robert Channick & Becky Yerak,Supreme Court Ruling Could Make It Harder to File Class-Action Lawsuits Against Companies, CHI . TRIB. (June 22, 2017 ), http://www.chicago tribune.com/business/ct-supreme -court-ruling-mass-actions- illinois- 0625 - biz-20170622-story.html [https://perma.cc/42WB-2XJG ]; Beck, supra note 3.
14 Bristol-Myers, 137 S. Ct . at 1781 , 1783 - 84 .
15 We will not spill that ink here. This Article is not about whether Bristol-Myers was right or wrong as a matter of personal jurisdiction theory or the right or wrong way to think about personal jurisdiction. It is about how Bristol-Myers fits into the world of complex litigation .
16 This is not to say that Bristol-Myers will have no impact on less complex litigation. Planitiffs may face new difficulties in cases involving multiple defendants, whonow might not all be amenable to jurisdiction in a single state, such as acses pled on a theory of market-share liability. Further, to the extent that states competed to attract mass-tort litigation to their courts, their ability
20 Emery G. Lee III et al., Multidistrict Centralization : An Empirical Examination, 12J . EMPIRICAL LEGAL STUD . 211 , 221 - 22 ( 2015 ).
21 See, e.g., Elizabeth Chamblee Burch, Remanding Multidistrict Litigation , 75 LA. L. REV. 399 , 414 ( 2014 ) [hereinafter Burch, Remanding] (explaining why defendants prefer MDL);Linda S. Mullenix, Aggregate Litigation and the Deathof Democratic Dispute Resolution , 107 NW. U. L. REV. 511 , 553 ( 2013 ) [hereinafter Mullenix, Death of Democratic] (same).
22 See Andrew D. Bradt , “A Radical Proposal”: The Multidistrict Litigation Act of 1968 , 165 U. PA. L. REV . 831 , 875 ( 2017 ) [hereinafter Bradt,Radical Proposal] (describing defendants' attempts to block the Multidistrict Litigation Act of 1968's (the “MDL statute”) passage) .
23 See John G. Heyburn II & Francis E. McGovern , Evaluating and Improving the MDL Process , LITIGATION , Summer/Fall 2012, at 26 , 26 (“ Overall, counsel believe that the panel is accomplishing its basic objective of easing the burdens of multiparty, multijurisdictional litigation on parties, counsel, and courts .”).
24 See Margaret S. Thomas, Morphing Case Boundaries in Multidistrict Litigation Settlements , 63 EMORY L.J. 1339 , 1346 - 47 ( 2014 ) (“As reliance on Rule 23 has diminished, MDL has ascended as the most important federal procedural device to aggregate (and settle) mass torts .”).
25 Andrew D. Bradt & D. Theodore Rave , The Information-Forcing Role of the Judge in Multidistrict Litigation , 105 CAL. L. REV. 1259 , 1270 ( 2017 ).
26 Burch, Remanding, supra note 21, at 400.
27 Bradt, Radical Proposal, supra note 22 , at 841.
28 U.S. CONST. amend. XIV, § 1; FED. R. CIV . P. 4 ( k ).
29 Andrew D. Bradt , The Long Arm of Multidistrict Litigatio,n59 WM . & MARY L. REV . 1165 , 1169 ( 2018 ) [hereinafter Bradt, Long Arm] .
30 See Geoffrey C. Hazard , Jr., Has the Erie Doctrine Been Repealed by Congress? , 156 U. PA. L. REV . 1629 , 1629 ( 2008 ) (contending that “CAFA asserts that, in certain types of cases, the judicious administration of state law is better entrusted to federal courts”)S;amuel Issacharoff & Catherine M. Sharkey , Backdoor Federalization, 53 UCLA L. REV. 1353 , 1354 ( 2006 ) (noting the trend in federalization).
31 See Bradt , Radical Proposal, supra note 22 , at 839 (“ The drafters believed that their creation would reshape federal litigation and become the primary mechanism for processing the wave of nationwide mass-tort litigation they predicted was headed the federal courts' way .”).
32 See, e.g., Samuel Issacharoff & D. Theodore RaveT , he BP Oil Spill Settlement and the Paradox of Public Litigation , 74 LA. L. REV. 397 , 413 - 18 ( 2014 ) (laying out the possible benefits of MDL for plaintiffs); D. Theodore Rave,Governing the Anticommons in Aggregate Litigation , 66 VAND. L. REV. 1183 , 1192 - 98 ( 2013 ) [hereinafter Rave, Anticommons] (pointing out that there are advantages for plaintiffs and the courts in MDL) .
33 See, e.g., Bradt & Rave, supra note 25.
34 See Lynn A. Baker , Mass Torts and the Pursuit of Ethical Finality, 85 FORDHAM L . REV. 1943 , 1952 ( 2017 ) (noting that the“cost of litigating [a plaintiff's] science- or medicine-intensive case may exceed $ 250 ,000”).
35 E.g., Howard M. Erichson , Informal Aggregation: Procedural and Ethical Implications of Coordination Among Counsel in Related Lawsuits, 50 DUKE L .J. 381 , 386 - 87 ( 2000 ); Rave, Anticommons, supra note 32, at 1192-93.
36 E.g., Judith Resnik , From “Cases” to “Litigation,” LAW & CONTEMP . PROBS., Summer 1991 , at 5, 21 [hereinafter Resnik, Cases to Litigation].
37 See generally Samuel Issacharoff & John Fabian Witt,The Inevitability of Aggregate Settlements: An Institutional Account of American Tort Law , 57 VAND. L. REV. 1571 ( 2004 ) (describing how defendants cut deals with private claims brokers to settle tort claims en masse in the days before formal aggregation procedures like the class action).
38 Burbank, Historical Context, supra note 10 , at 1486; David Marcus, The History of the Modern Class Action,Part I: Sturm Und Drang , 19531 - 980 , 90 WASH. U. L. REV. 587 , 599 ( 2013 ).
39 Robert H. Klonoff , The Decline of Class Action,s 90 WASH. U. L. REV. 729 , 731 ( 2013 ) [hereinafter Klonoff, Decline]; Linda S. Mullenix, Ending Class Actions as We Know Them: Rethinking the American Class Action, 64 EMORY L .J. 399 , 401 ( 2014 ).
40 Samuel Issacharoff , N.Y. Univ. Sch. of Law, Snapshot of MDL Caseload Statistic ,sAddress at Duke University School of Law (Oct. 8 , 2015 ), https://law.duke.edu/sites/default/files/ centers/judicialstudies/snapshot_mdl_caseload_statistics.pptx [https://perma.cc/R9NR-8H7L ] [hereinafter Issacharoff , Snapshot]; see Thomas D. Metzloff , The MDL Vortex Revisited , JUDICATURE , Autumn 2015 , at 36 , 40 (noting that MDL is “dominated by mass torts”); William B . Rubenstein,
49 Id. § 1407 (b); 15 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE § 3866 (4th ed. 2017 ) (noting that “the transferee may rule on all dispositive motions”).
50 28 U.S.C. § 1407 (a).
51 Lexecon Inc . v. Milberg Weiss Bershad Hynes & Lerach , 523 U.S. 26 , 34 ( 1998 ).
52 Burch, Remanding, supra note 21, at 400-01.
53 Bradt, Radical Proposal, supra note 22 , at 839.
54 Marcus, supra note 38, at 608.
55 FED. R. CIV . P. 23 , advisory committee note to 1966 amendments; Benjamin Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV . L. REV. 356 , 393 ( 1967 ).
56 Bradt, Less and More, supra note 43.
57 Burbank, Historical Context, supra note 10 , at 1489.
58 Stephen B. Burbank & Tobias Barrington Wolff , Redeeming the Missed Opportunities of Shady Grove , 159 U. PA. L. REV . 17 , 58 - 59 ( 2010 ); Richard S. Marcus, Bending in the Breeze: American Class Actions in the Twenty-First Century, 65 DEPAUL L . REV. 497 , 500 ( 2016 ).
59 See generally Arthur R. Miller , The Preservation and Rejuvenation of Aggregate Litigation: A Systemic Imperative , 64 EMORY L.J. 293 ( 2014 ) (providing a firsthand account).
60 Deborah R. Hensler , The Role of Multi-Districting in Mass Tort Litigation: An Empirical Investigation, 31 SETON HALL L . REV. 883 , 886 ( 2001 ); Resnik, Cases to Litigation, supra note 36, at 29-35.
61 Ortiz, 527 U.S. at 816; Amchem, 521 U.S. at 592. See generally RICHARD A. NAGAREDA, MASS TORTS IN A WORLD OF SETTLEMENT ( 2007 ).
62 See David Marcus , Erie, The Class Action Fairness Act, and Some Federalism Implications of Diversity Jurisdiction , 48 WM. & MARY L. REV . 1247 , 1281 ( 2007 ). We do not wish to overstate this point, as class action settlements are sometimes still used to resolve masstorts-though typically within an MDL. See, e .g., In re Nat'l Football League Players' Concussion Injury Litig., 821 F.3d 410 , 421 ( 3d Cir . 2016 ); In re Oil Spill by Oil Rig“Deepwater Horizon,” 910 F. Supp . 2d 891 , 900 (E.D. La . 2012 ), aff'd, 739 F.3d 790 ( 5th Cir . 2014 ). We are hard pressed, however, to think of many instances sinceAmchem and Ortiz where the federal courts allowed a mas-stort class action to be certified for litigation through trial, verdict, and appeal .
63 See generally AM. TORT REFORM ASS'N, BRINGING JUSTICE TO JUDICIAL HELLHOLES ( 2003 ), http/:/www.judicialhellholes.org/wp-content/uploads/2010/12/JH2003.pdf [https/:/perma. cc/G5U2-ZQK2] (listing and describing these judicial hellholes).
64 S. REP . NO. 109 - 14 , at 22- 27 ( 2005 ).
65 See In re Bridgestone/Firestone, Inc., Tires Prods . Liab. Litig,. 333 F.3d 763 , 766 - 67 ( 7th Cir . 2003 ), abrogated by Smith v . Bayer Corp., 564 U.S. 299 ( 2011 ).
66 BURBANK & FARHANG, supra note 11, at 139-41.
67 28 U.S.C. § 1332 (d).
68 S. REP . NO. 109 - 14 , at 24-27.
69 Burbank, Historical Context, supra note 10 , at 1528 ( noting that CAFA is motivated by“a desire to give the corporate defendant a choice to seek, not a neutral forum, but a more favorable forum”); Edward A . Purcell , Jr., The Class Action Fairness Act in Perspective: The Old and the New in Federal Jurisdictional Reform , 156 U. PA. L. REV . 1823 , 1918 ( 2008 ) [hereinafter Purcell, CAFA] (noting that CAFA's supporters' “institutional forum shopping was entirely typical, for they sought not general reform but specific advantage”).
70 Luke McCloud & David Rosenberg , A Solution to the Choice of Law Problem of Differing State Laws in Class Actions: Average Law, 79 GEO . WASH. L. REV. 374 , 374 ( 2011 ) ; Linda Silberman, The Role of Choice of Law in National Class Actio ,ns156 U. PA. L. REV . 2001 , 2034 ( 2008 ).
71 Genevieve G. York-Erwin, The Choice-of-Law Problem(s) in the Class Action Context , 84 N.Y.U. L. REV. 1793 , 1794 ( 2009 ) ; see , e.g., Cole v . Gen. Motors Corp., 484 F.3d 717 , 724 ( 5th Cir . 2007 ); In re Bridgestone/Firestone, Inc., 288 F.3d 1012 , 1015 - 16 ( 7th Cir . 2002 ).
72 See Samuel Issacharoff , Settled Expectations in a World of Unsettled Law: Choice of Law After the Class Action Fairness Ac ,t 106 COLUM. L. REV. 1839 , 1862 , 1867 ( 2006 ) (explaining why nationwide class actions will move into the federal courts under CAFA); Suzanna Sherry , Overruling Erie: Nationwide Class Actions and National Common Law , 156 U. PA. L. REV . 2135 , 2139 ( 2008 ) (noting that there is no one federal tort law to unite a nationwide class action).
73 See Zachary D. Clopton , Procedural Retrenchment and the Stat,es 106 CAL . L. REV. (forthcoming 2018 ) (manuscript at 22 n.203)https://papers.ssrn.com/sol3/papers.cfm?abstract_ id=2832124& download=yes (collecting cases).
74 Elizabeth J. Cabraser , Just Choose: The Jurisprudential Necessity to Select a Single Governing Law for Mass Claims Arising from Nationally Marketed Consumer Goods and Services, 14 ROGER WILLIAMS U. L. REV . 29 , 47 ( 2009 ) (describing the choice-of-law problem as the “coupde-grace” for mass-tort class actions); Kermit Roosevelt III,Choice of Law in Federal Courts: From Erie and Klaxon to CAFA and Shady Grove, 106 NW. U. L. REV. 1 , 49 ( 2012 ) (“Congress was plainly concerned that state courts were certifying too many class actions, and it plainly was hoping that fewer would be certified in federal court .”).
75 The degree of hostility in federal courts, ascompared to state courts, is still the subject of debate . See Thomas Willging & Shannon R. Wheatman ,Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make,? 81 NOTRE DAME L. REV . 591 , 593 ( 2006 ) (assessing whether federal courts display more hostility to class action litigation than state courts).
76 564 U.S. 338 , 356 ( 2011 ).
77 569 U.S. 27 , 34 ( 2013 ). Lower courts, however, seem resisatnt to applying Wal-Mart and Comcast in an extreme way, suggesting that they may not mean what those seeking to use them to the hilt say they mean . See Stephen B. Burbank & Sean Farhang,Class Actions and the Counterrevolution Against Federal Litigation , 165 U. PA. L. REV . 1495 , 1522 - 23 ( 2017 ) (describing narrower interpretations of those Supreme Court cases ).
78 See Klonoff , Decline, supra note 39 (detailing the heightened burdens imposed on class action plaintiffs in maintaining their class status);Joseph A . Seiner , The Issue Class, 56 B.C. L. REV . 121 , 130 ( 2015 ) (suggesting that decisions likeWal-Mart make it quite difficult to pursue class actions).
79 AT& T Mobility LLC v . Concepcion, 563 U.S. 333 , 352 ( 2011 ).
80 Issacharoff, Snapshot, supra note 40.
82 Willging & Lee, supra note 19, at 798.
83 Burch, Remanding, supra note 21, at 414 (“ Centralization likewise advantages defendants by making meaningful closure possible through a global settlement .”).
84 See, e.g., Castano v . Am. Tobacco Co., 84 F.3d 734 , 746 ( 5thir .C1996); In re RhonePoulenc Rorer, Inc., 51 F.3d 1293 , 1297 ( 7th Cir . 1995 ). But see Charles Silver, “We're Scared to Death”: Class Certification and Blackmai,l 78 N.Y.U. L. REV. 1357 , 1360 ( 2003 ) (questioning whether defendants are truly coerced into settlement).
85 See, e.g., In re Zoloft Prods. Liab. Litig., 176 F. Supp . 3d 483 , 490(E.D. Pa . 2016 ), aff'd, 858 F.3d 787 ( 3d Cir . 2017 ); Douglas G. SmithR,esolution of Common Questions in MDL Porceedings, 66 U. KAN. L. REV . 219 , 221 ( 2017 ) (discussing other examples).
86 See, e.g., Edward F. Sherman, The MDL Model for Resolving Complex Litigation if a Class Action Is Not Possible , 82 TUL. L. REV. 2205 , 2208 ( 2008 ) (explaining how the MDL process facilitates settlement).
87 See Troy A. McKenzie , Toward a Bankruptcy Model for Nonclass Aggregate Litigation , 87 N.Y.U. L. REV. 960 , 994 ( 2012 ) (“MDL practice can be frustratingly slow, and judges may effectively block plaintiffs from exiting by postponing adjudication of a motion to reman”d). Indeed, there is a heated debate among complex litigation scholars as to whether MDL more closeley- r sembles a roach motel or a black holeC . ompare Rubenstein, supra note 40 , at 146 (attributing
91 Geoffrey C. Hazard , Jr. , A General Theory of State-Court Jurisdiction , 1965 SUP. CT. REV . 241 , 271 - 72 (“ Pennoyer v. Neffarouses dismay and even despai .r. . . That it survives at all is some kind of monument to American legal thought” .); Albert A. Ehrenzweig, The Transient Rule of Personal Jurisdiction: The“Power” Myth and Forum Conveniesn, 65 YALE L .J. 289 , 310 ( 1956 ) (noting that “physical power fails completely as a rationale”).
92 Pennoyer, 95 U.S. at 733;see Wendy Collins Perdue, Sin, Scandal, and Substantive Due Process: Personal Jurisdiction and Pennoyer Reconsidered , 62 WASH. L. REV. 479 , 502 ( 1987 ).
93 Pennoyer, 95 U.S. at 722.
94 See, e.g., Hess v . Pawloski , 274 U.S. 352 , 356 ( 1927 ) (utilizing the legal fiction of implied consent to establish jurisdiction in a Massachusetts state court); Philip B . KurlandT,he Supreme Court, the Due Process Clause, and the In PersonamJurisdiction of State Courts, 25 U. CHI. L. REV . 569 , 573 ( 1958 ) (noting that“[t]he rapid development of transportation and communication . . . demanded a revision” of Pennoyer) .
95 Int'l Shoe Co . v. Washington, 326 U.S. 310 , 316 ( 1945 ).
96 Id. (quoting Milliken v . Meyer, 311 U.S. 457 , 463 ( 1940 )) ; see Kevin M. Clermont, Restating Territorial Jurisdiction and Venue for State and Federal Cour,ts66 CORNELL L . REV. 411 , 416 ( 1980 ).
97 See, e.g., Rush v . Savchuk , 444 U.S. 320 , 322 ( 1980 ); Shaffer v . Heitner , 433 U.S. 186 , 189 ( 1977 ) ; McGee v . Int'l Life Ins . Co., 355 U.S. 220 , 221 ( 1957 ). After a flurry of cases following International Shoe, the Court took a nineteen-year hiatus from deciding personal jurisdiction cases
259 See, e.g., Gonzales v . Raich , 545 U.S. 1 , 9 ( 2005 ) (allowing regulation of intrastate possession of marijuana); Wickard v . Filburn , 317 U.S. 111 , 129 ( 1942 ) (permitting regulation of homegrown wheat not intended for sale) .
260 Issacharoff & Sharkey, supra note 30, at 1356-57.
261 See, e.g., Cipollone v . Liggett Grp., Inc., 505 U.S. 504 , 530 ( 1992 ) (holding that state law personal injury claims were not preempted by federally mandated warnings about smoking).
262 E.g., Philip Morris USA v. Williams , 549 U.S. 34 , 6349 ( 2007 ) ; State Farm Mut . Auto. Ins. Co. v. Campbell, 538 U.S. 408 , 412 ( 2003 ) ; BMW of N. Am . Inc. v. Gore, 517 U.S. 559 , 563 ( 1996 ).
263 E.g., Exxon Mobil Corp . v. Allapattah Servs. In, c5 .45 U.S 546 , 549 ( 2005 ); Grable & Sons Metal Prods. Inc. v. Darue Eng'g & Mfg., 545 U.S. 308 , 310 ( 2005 ).
264 See, e.g., Kindred Nursing Ctrs ., L.P. v. Clark, 137 S. Ct . 1421 , 1425 ( 2017 ); AT& T Mobility LLC v . Concepcion, 563 U.S. 333 , 336 ( 2011 ).
265 See Purcell , CAFA, supra note 69, at 1921 ( “CAFA accelerated the growing centralization of American law .”).
275 S. REP . NO. 109 - 14 , at 27; Richard L. MarcusA, ssessing CAFA's Stated Jurisdictional Policy , 156 U. PA. L. REV . 1765 , 1766 ( 2008 ).
276 See Stephen B. Burbank , Aggregation on the Couch: The Strategic Uses of Ambiguity and Hypocrisy , 106 COLUM. L. REV. 1924 , 1942 ( 2006 ) (“[It should be] apparent to any sentient reader of the statute's statement of findings andpurposes . . . . [that] [t]hey are, at best, window dressing. Less charitably, they meet the philosopher Harry Frankfur'ts definition of 'bullshit,' because they are made with apparent indifference to their truth content.”) (footnote omitted).
277 Klaxon Co . v. Stentor Elec. Mfg. Co., 313 U.S. 487 , 496 - 97 ( 1941 ).
278 Silberman, supra note 70, at 2034; York-Erwin, supra note 71 , at 1794.
279 Edward Purcell elaborates:
285 Edward A. Purcell , Jr., The Story of Erie: How Litigants , Lawyers, Judges, Politics, and Social Change Reshape the Law , in CIVIL PROCEDURE STORIES 1 , 50 (Kevin M. Clermont ed., 2d ed. 2008 ) (“Brandeis's progressive orientation led him to the view that theSwift doctrine . . . . was one of the principal jurisprudential tools that the a-nptriogressive federal judiciary had used in shaping the law to favor corporate interests . . . . He was determined to see it abolished .”).
286 Black & White Taxicab & Transfer Co. v. Brown & Yellow Taxicab & Transfer Co., 276 U.S. 518 , 533 - 34 ( 1928 ) (Holmes , J., dissenting).
287 The Court drew much of its reasoning from Judge Calvert Magruder's opinion in Sampson v . Channell , 110 F.2d 754 , 761 ( 1st Cir . 1940 ). Judge Magruder notes, mellifluo,ustlhyat if a federal court could ignore a state's choice-of-law rules “then the ghost of Swift v. Tyson still walks abroad, somewhat shrunken in size, yet capable of much mischief.” Id. (citation omitted); see also Linda S. Mullenix, Federalizing Choice of Law for Mass-Tort Litigation , 70 TEX. L. REV. 1623 , 1647 ( 1992 ) (“Federalized choice-of-law standards, in the absence of federalized state choiceo-flaw, are a return to Swift-vintage forum-shopping opportunities.”) (footnote omitted).
288 Klaxon, 313 U.S. at 496. The Court specifically addressed concerns of federalism:
291 E.g. , Chang v . Baxter Healthcare Corp., 599 F.3d 728 , 732 ( 7th Cir . 2010 “ ) W(hen a diversity case is transferred by the multidistrict litigation panel, the law applied is that of the jus-ri diction from which the case was transferred . . . .”).
292 Bradt, Shortest Distance, supra note 231 , at 791-95; Alexandra Lahav , A Primer on Bel - wether Trials , 37 REV. LITIG. (forthcoming 2018 ).
293 Smith, supra note 85, at 228.
294 E.g., In re Viagra Prods. Liab. Litig., 658 F. Supp . 2d 950 , 968 (D. Minn . 2008 ) (granting summary judgment after excluding plaintiffs' expert under Daubert); In re Phenylpropanolamine (PPA) Prods . Liab. Litig., 289 F. Supp . 2d 1230 , 1236 - 38 (W.D. Wash . 2003 ).
295 None of the twelve publicly available nonc-lass MDL settlements surveyedby D. Theodore Rave in Closure Provisions in MDL Settlements, 85 FORDHAM L . REV. 2175 ( 2017 ) [hereinafter Rave, Closure Provisions], explicitly accounted for choice of law or drew distinctions among the states in which claimants lived or were injured when determining paymenOtsn.e, however, did condition the defendant's walkaway right on participation by timely claims and applied different time limits to claimants from different states, reflecting differences in the applicable statutes of limitations . Master Settlement Agreement § 10.02(B) ( 6) & app'x J, In re NuvaRing Prods . Liab. Litig., No. 08 -MD- 1964 , 2009 WL 4825170 ( E.D. Mo . Feb. 7 , 2014 ). Even in MDLs resolved by way of a class action settlement, courts have not insisted on fine-tuning settlement terms to differences in state law . See, e.g., Sullivan v. D.B. Invs ., Inc., 667 F.3d 273 , 304 ( 3d Cir . 2011 ) (upholding approval of settlement that made no distinction between antitrust plaintiffs from states that allowed indirect purchasers to recover and those that did not, noting tha“tstate law variations are largely 'irrelevant to certification of a settlement class'”).
296 Bradt, Shortest Distance, supra note 231.
297 Larry Kramer , Choice of Law in Complex Litigation , 71 N.Y.U. L. REV. 547 , 576 ( 1996 ).
298 Bradt, Shortest Distance, supra note 231 , at 764.
299 580 F. Supp . 690 , 713 (E.D.N .Y. 1984 ) ; see also PETER H . SCHUCK, AGENT ORANGE ON TRIAL: MASS TOXIC DISASTERS IN THECOURTS 128-29 ( 1988 ) (describing Judge Weinstein's “strikingly bold and inventive” approach to choice of law in the Agent Orange lawsuits ).
300 See, e.g., Geier v . Am. Honda Motor Co. , 529 U.S. 861 , 86 ( 52000 ) (holding that a Department of Transportation regulation preempted a stricter state rule).
301 Merrell Dow Pharm. , Inc. v. Thompson, 478 U.S. 8 , 04807 ( 1986 ) ; see Issacharoff & Sharkey, supra note 30, at 1412 (observing that state courts may disagree about interpretations of federal laws).
302 Issacharoff & Sharkey, supra note 30, at 1426-27.
303 Cf. State Farm, 538 U.S. at 431 (Ginsburg, J., dissenting) ( arguing that with respect to policing constitutional limitations on punitive damages,“unlike federal habeas corpus review of state-court convictions under 28 U .S.C.§ 2254 , the Court ' work[s] at this business [of checking state courts] alone,' unaided by the participation of federal district courts and courts of appea”ls) (alteration in original) (citation omitted) . See generally Barry Friedman, Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Cou , rt1s04 COLUM. L. REV. 1211
309 See, e.g., Richard D. Freer,Avoiding Duplicative Litigation: Rethinking Plaintiff Autonomy and the Court's Role in Defining the Litigative Unit , 50 U. PITT. L. REV . 809 , 813 ( 1989 ).
310 See DAVID F. HERR , ANNOTATED MANUAL FOR COMPLEX LITIGATION (FOURTH ) § 20 .3 ( 2017 ) ; Martin H. Redish, Intersystemic Redundancy and Federal Court Power: Proposing a Zero Tolerance Solution to the Duplicative Litigation Problem, 75 NOTRE DAME L . REV. 1347 , 1349 ( 2000 ); William W. Schwarzer et al., Judicial Federalism : A Proposal to Amend the Multidistrict Litigation Statute to Permit Discovery Coordination of Larg-Secale Litigation Pending in State and Federal Courts, 73 TEX. L. REV. 1529 , 1531 ( 1995 ).
311 Dunlavey v. TakedaPharm . Am., Inc., No. 6 : 12 -CV-1162, 2012 WL 3715456, at *2 ( W.D. La . Aug. 23 , 2012 ) (“Historically, coordination by and among both federal and the multiple state courts is common in MDL and mass tort litigation as is evidenced by the plethora of cases where coordination has been utilized .”); Catherine R. Borden & Emery G. Lee III , Beyond Transfer : Coordination of Complex Litigation in State and Federal Courts in the Twenty-First Century, 31 REV . LITIG. 997 , 1000 ( 2012 ) ; Francis E. McGovern,Toward a Cooperative Strategy for Federal and State Judges in Mass Tort Litigation, 148 U. PA. L. REV . 1867 , 1886 - 91 ( 2000 ).
312 E.g., Rave, Anticommons, supra note 32, at 1193-98; Charles Silver & Lynn A. Baker, Mass Lawsuits and the Aggregate Settlement Rule, 32 WAKE FOREST L . REV. 733 , 760 - 63 ( 1997 ).
313 See Issacharoff & Rave, supra note 32 (providing an example of the peace premium in action); Rave , Anticommons, supra note 32, at 1193-98 ( providing a fuller explanation of the dynamics at work ).
314 See Rave , Closure Provisions, supra note 295 , at 2179-81 ( finding walk-away thresholds in publicly available nonc-lass MDL settlements ranging from 85% to 100,%with most falling around 95%) .
337 E.g., Elizabeth Chamblee Burch,Judging Multidistrict Litigation , 90 N.Y.U. L. REV. 71 , 75 ( 2015 ); Burch, Monopolies, supra note 18; McKenzie, supra note 87 , at 1019-23; Silver & Miller, supra note 332.
338 E.g., Bradt, Shortest Distance, supra note 231.
339 E.g., Elizabeth Chamblee Burch ,Financiers as Monitors in Aggregate Litigation, 87 N.Y.U. L. REV. 1273 , 1277 ( 2012 ).
340 E.g., Robert G . Bone,Statistical Adjudication: Rights, Justice, and Utility in a World of Process Scarcity, 46 VAND. L. REV. 561 , 568 ( 1993 ); Edward K. Cheng, When 10 Trials Are Better Than 1000 : An Evidentiary Perspective on Trial Sampling, 16U0 . PA. L. REV. 955 , 957 ( 2012 ); Fallon et al., supra note 87 , at 2323; Alexandra D. Lahav , Bellwether Trials, 76 GEO. WASH. L. REV. 576 , 594 ( 2008 ); Jay Tidmarsh, Resurrecting Trial by Statistics, 99 MINN. L. REV. 1459 , 1464 ( 2015 ).
341 E.g., Bradt & Rave, supra note 25 , at 1284; Howard M. Erichson , The Role of the Judge in Non-Class Settlements , 90 WASH. U. L. REV. 1015 , 1026 ( 2013 ); Jeremy T. Grabill, Judicial Review of Private Mass Tort Settlements, 42 SETON HALL L. REV. 123 , 126 ( 2012 ).
342 Burbank, Historical Context, supra note 10 , at 1442.