I read the Court’s opinion
Comments
I think I need to digest the Court’s opinion more to respond to what you say in point #2, except to say that it’s somewhat in tension with what you say in point #4 for mass torts.
Mass cases are overwhelming resolved through informal coordination and settlement across borders. And even when a single MDL or statewide MCL is responsible for the coordination, the impact of a multimillion dollar verdict in Fen-Phen or the GMO rice litigation in one state carries more weight across the country than whether a case has to be filed in one court or another, subject to that court’s state law. As I noted with Howard, even here, where cases were filed in several different jurisdictions, the parties agreed to informal coordination before a special master in NY. So, in practice, concerns about horizontal federalism interests–including which state tries a case or precludes another, at least for mass tort claims, are somewhat overstated. Because of the stakes involved, cases are rarely tried in any court; they’re mediated, coordinated, shared, and sometimes, literally sliced up and served to attorneys around the country as common benefit work to be tried and settled “in a box.”
But, as you note in point #4, these are good reasons why these cases belong in federal court, without the limitations of Rule 4(k)(1)(A). (This seemed to be what Justice Breyer was struggling with in the oral argument.) I just don’t see any amendments to that rule happening any time soon. And I worry about the practical impact of a decision like this on our already burdened MDL system, which hears almost 40% of all cases now pending in federal court, but is currently the only place where courts can resolve such cases without worrying about personal jurisdiction.
A question for you and others: what about cases involving foreign defendants? Short of filing claims in MDL proceedings first, if that’s possible, and then moving to certify a class, how will those cases proceed?
Posted by: Adam Zimmerman | Jun 19, 2017 4:54:11 PM