The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation

Notre Dame Law Review Volume 88 | Issue 2 Article 5 12-1-2012 The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation Andrew D. Bradt Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Andrew D. Bradt, The Shortest Distance: Direct Filing and Choice of Law in Multidistrict Litigation, 88 Notre Dame L. Rev. 759 (2012). Available at: http://scholarship.law.nd.edu/ndlr/vol88/iss2/5 This Article is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . \\jciprod01\productn\N\NDL\88-2\NDL205.txt unknown Seq: 1 4-FEB-13 12:48 THE SHORTEST DISTANCE: DIRECT FILING AND CHOICE OF LAW IN MULTIDISTRICT LITIGATION Andrew D. Bradt* The amount of multidistrict litigation (MDL) in the federal courts is skyrocketing, particularly in the areas of mass torts and products liability. One significant reason for the explosion of MDL has been the difficulty of maintaining nationwide or multistate class actions in these areas, due in large part to the choice-of-law problems created by operation of many different states’ laws to plaintiffs’ claims. One comparative benefit of MDL is that individual cases within the consolidated pretrial proceedings retain their “choice-of-law identity”—that is, that transfer of a case into a pending MDL does not change the choice-of-law rules that would otherwise apply to a plaintiff’s case had it proceeded in its original home forum. In other words, the case carries the choice-of-law rules of the original forum state with it into the MDL. Because MDL is purportedly a consolidation only for pretrial proceedings, unlike a class action, the application of different choice-of-law rules to different plaintiffs’ claims does not render the MDL proceeding itself infeasible. This framework, however, is in disarray due to the advent and increasing popularity of a practice called “direct filing.” In direct filing, plaintiffs bypass the transfer process and file their cases directly into an MDL court. Amid the growing popularity of this practice, the question of what choice-oflaw rules ought to apply to direct-filed cases has been left unaddressed. This  2012 Andrew D. Bradt. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Assistant Professor of Law, University of California-Berkeley School of Law, . Thanks to those who have generously given comments and assistance, including David Barron, Andrea Bjorklund, Steve Burbank, Steve Bundy, Stella Burch Elias, Joe Cecil, Glenn Cohen, Daniel Coquillette, Christine Desan, Tom Donnelly, Katherine Florey, Mark Gergen, Jacob Gersen, Maria Glover, Jim Greiner, Hon. Robert Katzmann, Herma Hill Kay, Emery Lee, John Manning, Daniel Meltzer, Frank Michelman, Rafael Pardo, Teddy Rave, David Rosenberg, Bill Rubenstein, Erin Sheley, Jed Shugerman, Joseph Singer, Matthew Stephenson, Susannah Tobin, Molly van Houweling, Tobias Wolff, Andrew Woods, and Patrick Woolley. Thanks also to Davis Doherty, Harvard Law School Class of 2012, who provided excellent research assistance. 759 \\jciprod01\productn\N\NDL\88-2\NDL205.txt 760 unknown Seq: 2 notre dame law review 4-FEB-13 12:48 [vol. 88:2 paper seeks to expose and resolve the problem by permitting direct filing, but requiring plaintiffs to declare a proper home district whose choice-of-law rules would apply to their claims. Such an approach would both preserve the efficiency benefits of direct filing, and be consistent with the values of federalism and litigant autonomy underlying the choice-of-law framework in diversity cases. INTRODUCTION Aggregate litigation and choice of law are poor bedfellows. Aggregate litigation is driven by the need to resolve many cases efficiently in a single consolidated proceeding by emphasizing the commonalities of cases.1 Choice of law demands attention to the uniqueness of individual cases, requiring analysis of potentially conflicting state policies and interests in light of the particular circumstances of cases.2 Aggregation seeks sameness, while choice of law focuses on particularity. When aggregation of cases based on state law proceeds in a federal court under diversity jurisdiction, the complexity increases. Federal courts sitting in diversity must respect states’ choice-of-law rules because those rules represent states’ choices about the scope of their laws in cases in which they have regulatory interests,3 and in order to ensure that diversity jurisdiction does not change the substantive law that would otherwise apply to a plaintiff’s case.4 As numerous commentators have observed, choice of law matters to the outcomes and values of cases, but it also represents differences in states’ approaches to regulating disputes in which they have interests.5 For aggregation and choice of law to coexist peacefully, and to avoid running afoul of these federalism considerations, the aggregation mechanism must accommodate the individual nature of cases within the collective. In other words, federal aggregation struc1 See Edward F. Sherman, Aggregate Disposition of Related Cases: The Policy Issues, 10 REV. LITIG. 231 (1991). 2 See Joseph William Singer, A Pragmatic Guide to Conflicts, 70 B.U. L. REV. 731, 731–32 (1990). 3 See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487 (1941); see also KERMIT ROOSEVELT, CONFLICT OF LAWS 156 (2009). 4 See Van Dusen v. Barrack, 376 U.S. 612 (1964); see also Larry Kramer, Choice of Law in Complex Litigation, 71 N.Y.U. L. REV. 547, 576 (1996) ( “[T]he mere existence of federal jurisdiction does not justify modifying the parties’ substantive rights”); Linda Silberman, The Role of Choice of Law in National Class Actions, 156 U. PA. L. REV. 2001, 2034 (2008) (“[A]ggregation should not distort the underlying substantive rights of the parties”). 5 See, e.g., Kramer, supra note 4, at 553–54; Patrick Woolley, Choice of Law and the Protection of Class Members in Class Suits Certified Under Federal Rule of Civil Procedure 23(b)(3), 2004 MICH. ST. L. REV. 799, 833 (2004). R \\jciprod01\productn\N\NDL\88-2\NDL205.txt 2012] unknown Seq: 3 the shortest distance 4-FEB-13 12:48 761 tures should seek choice-of-law neutrality for the cases within in the aggregate. Given these issues, it should come as no surprise, then, that choice of law has presented a seemingly intractable problem for the nationwide, diversity-based, mass-tort class action.6 Indeed, the federal courts, where most large class actions are now litigated due to the Class Action Fairness Act of 2005 (CAFA),7 have come to a consensus that the operation of choice-of-law rules demands that di (...truncated)