Mechanics of Motion Practice

Judicial Panel on Multidistrict LitigationJan 1, 1997
175 F.R.D. 589 (J.P.M.L. 1997)

1997


THE MECHANICS OF MOTION PRACTICE BEFORE THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION


by EARLE F. KYLE, IV[fn1][fn1] Earle F. Kyle, IV (B.A., Macalester College; M. Planning, Hubert H. Humphrey Institute of Public Affairs; J.D., University of Minnesota Law School) practices complex litigation and employment law with Lockridge Grindal Nauen Holstein P.L.L.P. in Minneapolis. The author wishes to thank his firm's former librarian, Karen E. Westwood, for her research assistance, Vivian M. Challen, Chief Deputy Clerk of the Panel, and David F. Herr, Esq. (Maslon Edelman Borman Brand, LLP, Minneapolis, and author of MULTIDISTRICT LITIGATION (Little, Brown Co. 1986 Supp. 1996)) for his invaluable comments.

The Judicial Panel on Multidistrict Litigation ("Panel") is neither a trial court, appellate tribunal, nor (as some have called it) a mysterious "Super Court." Rather, it is simply a special judicial creature comprised of seven federal district or appellate court judges; no two of whom may be from the same circuit, and one of whom serves as Chair.

Members of the Panel maintain a full docket in their respective courts while serving on the Panel part-time. Each member is appointed by the Chief Justice of the United States Supreme Court, and serves for a term of indefinite duration (three current members have been serving since 1990). The Panel has a permanent staff of attorneys and clerks who process filings and monitor district court dockets to identify cases that appear to be suitable for Panel action.

See note 75, infra.

In its 30-year history since its inception in 1968 to deal with the avalanche of nearly 2,000 antitrust suits filed against the electrical equipment manufacturers in the early 1960s, the Panel has essentially performed the same main function: it decides-either on motion or sua sponte whether to transfer federal district court civil cases involving common questions of fact for coordinated or consolidated pretrial proceedings.

See Robert A. Cahn, A LOOK AT THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, 72 F.R.D. 211,211 n. 1 (1976), citing Peterson and McDermott, MULTIDISTRICT LITIGATION: NEW FORMS OF JUDICIAL ADMINISTRATION, 56 A.B.A.J. 737 (1970). Mr. Cahn was the Executive Attorney for the Panel, and Executive Editor of the MANUAL FOR COMPLEX LITIGATION at the time of publication of his aforecited article.

The Panel also considers "multicircuit petitions for review" under 28 U.S.C. § 2112(a)(3). Under this statute, the Panel may consolidate cases pending before different appellate courts which are on appeal from decisions of administrative agencies. In addition to this and its § 1407 transfer powers, the Panel was also empowered by Congress to select and appoint judges to serve on the Special Court which hears and administers cases arising under the Regional Rail Reorganization Act of 1973 ( 45 U.S.C. § 719(b)). See In re Litig. Under Regional Rail Reorganization Act of 1973, 373 F. Supp. 1401 (J.P.M.L. 1974) (ordering that the situs of the Special Court be in the District of Columbia). Effective as of January 17, 1997, the Special Court was dissolved. On that date, any cases still pending before the Special Court were assigned to the U.S. District Court for the District of Columbia. See 28 U.S.C. § 719(b)(2) (West Supp. 1997) (and "Notice of Dissolution" published therein).

As a matter of convenience, the terms "consolidation" and "coordination" are used interchangeably throughout this article, although they connote distinct procedures. The transferee court, not the Panel, decides whether the transferred cases will be consolidated or coordinated. See In re Penn Cent. Sec. Litig., 322 F. Supp. 1021, 1022-23 n. 4 (J.P.M.L. 1971) (Panel would not in its order of transfer, specify that only coordinated, rather than consolidated, pretrial proceedings should be held in the transferee court). Management of consolidated proceedings is discussed generally throughout the MANUAL FOR COMPLEX LITIGATION (THIRD) (1995) (hereinafter "MANUAL"). Certain cases that cannot be consolidated can nevertheless enjoy the same advantages of efficiency and judicial economy as consolidated pleadings by coordinating related litigation. See, e.g., MANUAL at pp. 256-61.

See generally 28 U.S.C. § 1407.

Panel § 1407 transfer orders, and the Rules that govern them, are meant to achieve efficiency and judicial economy by providing convenience to the parties and witnesses, and promoting the efficient conduct of "complex litigation."

The Panel Rules are published in U.S.C.A. following § 1407 and in U.S.C.A. following the Federal Rules of Civil Procedure. See also FEDERAL CIVIL JUDICIAL PROCEDURE AND RULES, pp. 296-304 (West 1997). As a matter of convenience, citation to these Rules herein appears in the form, "J.P.M.L.R.", and are also reprinted here at Appendix A.

See MANUAL at § 10.1 (defining "complex litigation" as litigation involving many parties in numerous related cases, litigation involving large numbers of witnesses and documents and extensive discovery, and cases involving complex legal and case management issues; aligning objectives of complex litigation management with the objectives of Fed.R.Civ.P. 1-to bring about the just, speedy, and inexpensive determination of every action); In re Chevron U.S.A., Inc., 109 F.3d 1016, 1018 (5th Cir. 1997) ("The trial court has in our view quite properly categorized this litigation as complex. The mere fact that there are potentially some 3,000 claimants in and of itself complicates traditional dispute resolution. Additionally, when large number of claimants assert both property damage claims and claims for personal injury as well as claims for injunctive relief, it removes any question that may linger regarding the complexity of the task visited upon the lawyers and the trial court."). See also In re Nat'l Student Marketing Litig., 368 F. Supp. 1311, 1316 (J.P.M.L. 1972) ("The basic purpose underlying the enactment of 28 U.S.C. § 1407 was to secure, in multidistrict civil litigation, the `just, speedy and inexpensive determination of every action.'"), citing Fed.R.Civ.P. 1. The essential purpose of the statute is to avoid "piecemeal litigation." See In re Food Lion, Inc. Fair Labor Standards Act Effective Scheduling Litig., 73 F.3d 528, 532 (4th Cir. 1996).

Consolidated or coordinated pretrial proceedings resulting from Panel transfer orders can provide tremendous benefits. Parties can save time and expense by avoiding duplicative discovery and minimizing the burden on non-parties who may be compelled to testify or produce documents in similar actions scattered around the country. However, while Panel action may serve a "greater litigation good" and meet strong national needs of system-wide judicial economy, those "macro-litigation benefits" are not always universally celebrated.

For example, if you are the respondent to a transfer motion or counsel for a party in a "tag along" action (a case subject to transfer by the Panel and consolidation with cases previously transferred and consolidated), the Panel can seize control of your case, thrust you into someone else's litigation halfway across the country, and relegate you to "100th chair" status in an already over-lawyered mass litigation where coveted "lead counsel," "liaison counsel" and "executive committee" court-appointed case management and litigation leadership positions have already been divvied up.

See J.P.M.L. Rules 1, 12, 13.

See MANUAL at § 20.02 (section entitled, "Role of Counsel in Complex Litigation").

Such scenarios are real. In a vast range of colorfully re-named cases-from the sublime, to the arguably unsavory — Panel action affects thousands of lawyers and clients around the country every year in cases involving a variety of subject matters. Indeed, practically no kind of federal civil case is exempt from Panel action. In the vast majority of those cases, requests for transfer are granted (even though they may not be transferred to the place requested, discussed below).

See, e.g., In re Infant Formula Antitrust Litig., 1992 WL 503465 (N.D. Fla. 1992).

See, e.g., In re Toilet Seat Antitrust Litig., 387 F. Supp. 1342 (J.P.M.L. 1975).

The Panel has acted on cases involving: private antitrust and securities claims; common disaster cases; patent, copyright and trademark actions; bankruptcy litigation; consumer fraud actions; employment cases; litigation seeking to enjoin airline fare increases; civil environmental prosecutions; franchise claims; and products liability cases, just to name a few.

The only type of federal civil case beyond the reach of the Panel are actions in which the United States is a claimant in a case arising under the antitrust laws. 28 U.S.C. § 1407(g).

See § IV notes, infra.

In 1995, the Panel transferred 12,768 cases originally filed in 92 transferor courts to 33 transferee districts for inclusion in coordinated or consolidated pretrial proceedings, and declined to transfer only 84 actions. These statistics reflect an increasing trend. Last year, the Panel acted on 16,855 cases, declining to transfer only 61 of those cases. Since the Panel's creation in 1968, it has centralized 109,410 cases for pretrial proceedings (with district courts within the Eastern District of Pennsylvania historically receiving the overwhelming majority of transferred cases). Given the numbers, some working understanding of the power and mechanics of this judicial body should be within every litigator's arsenal.

Report of the Director, JUDICIAL BUSINESS OF THE UNITED STATES COURTS, at 31-32 Tables S-21 S-22 (1995).

See Report of the Director, JUDICIAL BUSINESS OF THE UNITED STATES COURTS at 29 Tables S-21 and S-22 (1996), attached hereto as Appendixes B and C.

Id.

The scope of the Panel's powers and that of transferee courts in keeping cases for trial has been the focus of recent media attention (See Rex Bossert, MDL "Power Grab," Nat'l L.J., Sept. 1, 1997 at 1), and is the subject of a case now pending before that United States Supreme Court. See Lexecon v. Milberg Weiss Bershad Hynes Lerach, 102 F.3d 1524 (9th Cir. 1996), cert, granted, ___ U.S. ___, 117 S.Ct. 1818, 137 L.Ed.2d 1026 (1997). See Blake M. Rhodes, THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION: TIME FOR RETHINKING, 140 Univ. Pa. L. Rev. 711, n. 4 (1991) ("In addition to the Panel's obvious impact on an action it transfers, the Panel may affect cases in subtler ways.").

Whether to seek transfer and consolidation or coordination of any given federal case is a complex question. The many legal and strategic issues that surround whether to seek transfer and consolidation of a case (including whether transfer and coordination or consolidation are even legally or logistically feasible, and the full myriad of issues associated with whether and how to seek remand of a transferred case), and the complexities of managing and litigating a "MDLed" case, are not the focus of this article. Instead, this article simply aims to provide an overview of the Rules governing practice before the Panel, a guide to what should be contained in a transfer motion, and some special considerations about the power of and practice before the Panel.

Parts I and II of this article cover admission to practice, and what should be filed (and where) in support of a transfer motion. Parts III and IV set forth the factors considered by the Panel in determining whether and where to transfer related cases. Part V discusses the procedure for obtaining, and strategic considerations associated with, hearing before the Panel. Arguments commonly advanced and factors considered by the Panel in opposition to a transfer motion are analyzed in Part VI. Part VII covers a variety of transfer issues, including: what impact a MDL motion has upon pending cases which may be subject to a transfer order; choice of law and law of the case issues faced by transferee and transferor courts; strategic considerations regarding state court actions which are beyond the reach of the Panel; the Panel's power to transfer tag-along actions; and, appeal of Panel orders. Parts VIII and IX discuss termination (by settlement, dismissal or otherwise) of cases in transferee courts, and options available to the Panel and transferee and transferor courts to remand transferred cases for trial. Finally, other strategic considerations for practice before the Panel are addressed in Part X.

I. Admission to Practice

As long as you are a member in good standing of the bar of any federal district court, you may practice before the Panel. Even if the case is transferred to a jurisdiction in which you are not admitted, Rule 6 expressly allows you to continue your representation of your client in the jurisdiction to which your case is transferred without the need to retain local counsel. As a matter of deference and good form, however, you should inquire of the transferee court whether that court would like you to move for admission pro hac vice so that the court can insure that you are familiar and comply with the local rules.

J.P.M.L.R. 6.

II. What And Where to File

File all papers with the "Clerk of the Panel"; do not file papers directly with any of the Panel judges. Papers which must be filed with the Clerk include:

Filings with the Panel should be sent to: Clerk of the Panel, Judicial Panel on Multidistrict Litigation, Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Room G-255, North Lobby, Washington, D.C. 20002. The telephone number for the Clerk is (202) 273-2800.

J.P.M.L. Rules 7(a), 8(a), 8(b).

J.P.M.L. Rules 7(a) 8(c).

J.P.M.L. Rules 7(a), 10(e), 11(e), 12(b).

J.P.M.L. Rules 7(a), 12(c), 14(f)(ii).

J.P.M.L. Rules 7(a) 13(e).

J.P.M.L. Rules 7(a) 15.

J.P.M.L. Rules 7(a) 17(a).

• proof of service; • a notice of appearance; • a notice regarding the litigation status of cases subject to transfer (including any pending motions that may render Panel action moot); • any notice of opposition; • a notice of the related action(s); • any application for extension of time; and, • a notice of presentation or waiver of oral argument. In addition to one original copy of the foregoing, an original and 11 copies of the underlying brief (and "schedule of actions" subject to transfer, discussed infra) in support of the transfer motion must also be filed with the Clerk of the Panel. Note that unlike motion practice in many federal courts, proposed orders are not included among the papers filed with the Panel.

The motion and its supporting papers must also be filed in each district court in which an action is pending that will be affected by the motion. As a practical matter, that means both the court from which the case is transferred, the court to which the case is sought to be transferred into, and any other court that may be affected by the transfer must receive a copy of the motion papers.

28 U.S.C. § 1407(c); J.P.M.L.R. 7(c).

While Panel Rules do not require that a copy of a Panel transfer motion be filed in any related state court action, it may be strategically advantageous to provide counsel for the state court litigants with a courtesy copy of the transfer motion so they can consider removing the state court case to federal court in order to allow the Panel to treat the removed case as a tag-along action. This approach is further discussed in § II(B), infra.

Within eleven days of filing a transfer motion, counsel for each party must notify the Clerk, in writing, of the name of the attorney designated to receive service of all pleadings, notices, orders and other papers relating to practice before the Panel on the matter. Thereafter, the Clerk will prepare and issue a "Panel Service List" for use by the Panel and attorneys, which list must be attached to the proof of service affidavit in future filings.

J.P.M.L. Rules 8(c) 8(d).

A. The Notice of Motion and Motion

Each fact or averment in the motion must be set forth in separate, numbered paragraphs so that the respondent(s) to the motion may clearly and specifically admit or deny the averments. The motion should be accompanied by a notice of motion indicating that the motion is being filed and that a hearing date will be set by the Clerk.

B. Schedule of Actions

The brief must be accompanied by a schedule, which must contain:complete name • the (without abbreviations such as "et al.") of each case subject to the transfer motion; • an indication of the district court in which each case is pending; • the civil action number of each case; and, • the name of the judge assigned to each case. While seemingly rudimentary, the foregoing should be strictly adhered to; you will be notified by the Clerk of any deficiencies in your filing which must be cured before your motion can be fully considered by the Panel.

As a practical matter, delay of Panel action caused by filing deficiencies can have consequences more significant than mere inconvenience. For instance, as discussed below, a transferor court need not await the outcome of a motion filed with the Panel before ruling on a dispositive motion. If, however, a motion to transfer the case and consolidate it with a case pending in another jurisdiction is timely, and properly, filed with the Panel, and if the Panel orders transfer before the transferor court rules on the pending dispositive motion, then the dispositive motion will be heard and decided by the transferee court (whose decision may be more favorable than how the transferor court may have ruled). Indeed, if the transferor court disposes a case subject to transfer before the Panel rules on a pending transfer motion, then the transfer motion will be rendered moot. Thus, detail and timing in filings with the Panel are quite important.

As discussed below, the prospect of unfavorable rulings that may issue from a transferee judge is not a factor considered by the Panel in deciding a transfer motion. See note 88, infra.

See, e.g., In re Temporomandibular Joint (TMJ) Implants Litig., 844 F. Supp. 1553, 1554 n. 3 (J.P.M.L. 1994) (five motions before Panel, one of which was filed too late to be considered by Panel at hearing was instead treated as potential tag along action).

C. The Brief and Exhibits

Briefs, exclusive of exhibits, are limited to 20 pages, but exceptions are occasionally granted. Exhibits in excess of 25 pages must be bound separately from the accompanying brief and should include, among other things, copies of the relevant pleadings from the cases subject to transfer and consolidation. The brief must contain a background of the litigation and concisely stated factual and legal contentions.

While the facts and legal issues in the cases subject to transfer and consolidation may be complex, the contents of the brief should be set forth simply and clearly. Generally, the main objectives of the brief should be to: 28 U.S.C. § 1407

• identify the movant and describe the nature of cases subject to transfer; • identify the factual and legal commonalities among the cases at issue; • explain how and why transfer and consolidation will achieve judicial economy and advance the purposes of , and, conversely, what harm or inefficiency may result from failure to transfer and consolidate the cases; • articulate a compelling basis for transferring the cases at issue to a particular district for assignment to a specific judge. The opening brief is filed with the motion. Responsive briefs may be filed within 20 days thereafter. Any reply brief must be filed within 5 days after the lapse of time for filing response briefs.

III. Whether to Transfer: Factors

There are four critical threshold elements the Panel looks for when deciding whether cases should be transferred for consolidated or coordinated pretrial proceedings, namely:

1. the cases must be federal civil actions;
2. the cases must be pending in different federal judicial districts;
3. one or more common questions of disputed fact must exist among the cases (fact issues need not be common to all parties); and,
4. whether efficiency will be achieved, and whether the resources of the parties, their counsel and the judiciary will be conserved by transfer and consolidation.

These elements are embodied within the plain language of the statute, which provides, in relevant part:


When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for coordinated or consolidated pretrial proceedings. Such transfers shall be made by the judicial panel on multidistrict litigation authorized by this section upon its determination that transfers for such proceedings will be for the convenience of parties and witnesses and will promote the just and efficient conduct of such actions.
28 U.S.C. § 1407(a) (emphasis added).

Because the absence of any of these elements will make the Panel's application of the statute inappropriate, failure to show that these elements are satisfied may result in denial of a transfer motion. Thus, a brief in support (or opposition) to a transfer motion should preliminarily address whether these elements are met. In addition to these basic points, the Panel also considers several other factors in deciding whether to transfer cases, including:

However, the Panel may, sua sponte consider and order transfer, despite any infirmities in a brief, or whether a motion or brief is submitted at all. See 28 U.S.C. § 1407(c)(i); J.P.M.L.R. 11(a).

The Panel's esteem for the MANUAL is no coincidence; several Panel members and staff counsel participated in drafting the original version and have served on its editorial board. See note 4, supra.

Where only a few cases are subject to a transfer motion, the movant has a higher burden to prove that the facts are sufficiently complex and the discovery is sufficiently extensive and potentially duplicative as to warrant transfer and consolidation. See, e.g., In re Magic Marker Sec. Litig., 470 F. Supp. 862, 865 (J.P.M.L. 1979).

See MANUAL at 252-53 and notes.

Id. See also In re Gas Vent Pipe Antitrust Litig., 380 F. Supp. 799, 800 (J.P.M.L. 1974) (transfer order issued mainly to cover potential tag-along actions).

See MANUAL at 252-53 and notes.

Id.

For example, federal courts in separate class actions could issue rulings that may have res judicata or collateral estoppel effect on an identically defined class in the other action. See In re Telectronic Pacing Systems, Inc., 1997 WL 221310, *13 (S.D. Ohio 1997); In re Temporomandibular Joint (TMJ) Implants Litig., 844 F. Supp. 1553, 1554 (J.P.M.L. 1994); In re Hotel Telephone Charge Antitrust Litig., 374 F. Supp. 1402, 1403 (J.P.M.L. 1974) (Panel transferred case to eliminate possibility of inconsistent class determinations).

Since the main thrust of the transfer statute concerns pre-trial discovery, a case that is trial ready-verses newly filed cases, or cases that are not too far along in discovery-may not be appropriately subject to Panel action. See MANUAL at 252-53 notes.

• the nature of the cases and ability of the transferee court to employ procedural devises developed in the MANUAL to facilitate efficient pretrial activities; • the number of cases subject to transfer (as few as two cases can be consolidated and transferred; while there is no upper limit, whether consolidation would create serious management problems because of the size and complexity of the proceedings is also a factor considered by the Panel); • the number of parties involved in the cases at issue; • the likelihood of potential tag-along actions; • precedent for whether the Panel has transferred similar actions in the past; • the likelihood of duplicative discovery and motion practice in the cases at issue; • the likelihood of inconsistent or conflicting pretrial rulings in the absence of consolidation; and, • how far advanced each cases is procedurally.

While none of the foregoing factors alone is conclusive as to the transfer issue, transfer briefs should address whether the totality of each factor weighs in favor or against transfer.

For further discussion of these factors see Note, THE JUDICIAL PANEL AND THE CONDUCT OF MULTIDISTRICT LITIGATION, 87 Harv. L. Rev. 1001 (1974); Wilson W. Herndon Ernest R. Higginbotham, COMPLEX MULTIDISTRICT LITIGATION-AN OVERVIEW OF 28 U.S.C.A. § 1407, 31 Baylor L. Rev. 33 (1979).

IV. Where to Transfer: Factors

The Panel is not constrained by venue limitations. It can transfer cases anywhere. Indeed, where cases should be transferred is typically more vehemently debated at hearing and on brief than whether the cases should be transferred and consolidated.

In choosing a transferee court, the Panel has considered, among other things:

See, e.g., In re Air Crash off Long Island, New York, on July 17, 1996, 965 F.Supp. 5 (S.D.N.Y. 1997) (referencing the Panel's consolidation of 25 wrongful death cases filed around the country regarding the crash of TWA Flight 800 to the Southern District of New York.); In re Delta Airlines Crash at Boston, Mass., on July 31, 1973, 373 F. Supp. 1406 (J.P.M.L. 1974) (ordering transfer of litigation to district in which crash occurred, rather than district in which majority of victims had resided).

However, the Panel has held in some cases that there is often no need to inconvenience witnesses regardless of the location of the transferee court since depositions can and should be taken at locations convenient to those witnesses. See In re Asbestos Prod. Liab. Litig., 771 F. Supp. 415, 422 (J.P.M.L. 1991) ("We remain sensitive to the concerns of some parties that § 1407 transfer will be burdensome or inconvenient. We note that since § 1407 transfer is primarily for pretrial, there is usually no need for the parties and witnesses to travel to the transferee district for depositions or otherwise. Furthermore, the judicious use of liaison counsel, lead counsel and steering committees will eliminate the need for most counsel ever to travel to the transferee district. And it is most logical to assume that prudent counsel will combine their forces and apportion their workload in order to streamline the efforts of the parties and witnesses, their counsel, and the judiciary, thereby effectuating an overall savings of cost and a reduction of inconvenience to all concerned."; citations omitted); In re New York City Municipal Sec. Litig., 572 F.2d 49, 50 (2nd Cir. 1978) ("transfer of an action under Section 1407 does not mean that all discovery must take place in the transferee district. For example, depositions of witnesses may still occur where they reside.").

See In re Baldwin-United Corp. Litig., 581 F. Supp. 739, 741 (J.P.M.L. 1984); In re Upjohn Co. Antibiotic "Cleocin" Prod. Liab. Litig., 450 F. Supp. 1168, 1170-71 (J.P.M.L. 1978); In re Penn Cent. Sec. Litig., 322 F. Supp. 1021, 1023 n. 4 (J.P.M.L. 1971).

See In re Temporomandibular Joint (TMJ) Implants Litig., 844 F. Supp. 1553, 1554 (J.P.M.L. 1994); In re Republic Nat'l-Realty Equities Sec. Litig., 382 F. Supp. 1403, 1406 (J.P.M.L. 1974).

Compare In re Regents of Univ. of Calif., 964 F.2d 1128, 1136 (Fed. Cir. 1992) (among other factors favoring transfer, chosen transferee court was centrally located forum for counsel located on both coasts of the United States), with In re Anthracite Coal Antitrust Litig., 436 F. Supp. 402, 403 (J.P.M.L. 1977) (only if inconvenience of counsel would impinge on convenience of parties or witnesses would convenience of counsel become a factor to be considered by the Panel in deciding whether to order transfer).

• where documents or other things that may be subject to discovery are located; • the convenience of the parties and witnesses; • the location of the corporate headquarters of the defendant; • whether any one or more of the cases is pending in the proposed transferee court; and, • convenience and location of counsel for the parties. Each of the foregoing factors looks for the "center of gravity" of the litigation. Additionally, the Panel may consider: • number of cases pending on the respective dockets of the potential transferee courts; • level of respective interest of the potential transferee courts in receiving the cases; • which among the cases subject to transfer was filed first; • the ease with which the transferee court can implement effective case management procedures that will facilitate effective and efficient pretrial litigation of the actions; and, • the relative experience of the potential transferee courts in the particular subject matter at issue. The Panel has not only transferred cases to judges familiar with particular types of litigation, but Panel members themselves have served as transferee judges in some cases. Given the possibility that members of the Panel might serve as the transferee judge, it is worthwhile to know who currently serves on the Panel. For further discussion of the factors considered in deciding both whether and where transfer is appropriate, see David F. Herr, MULTIDISTRICT LITIGATION pp. 69-174 (Little, Brown Co. 1986 Supp. 1996).

V. Hearings

Hearing may be held before the Panel, and may be scheduled whenever and wherever desirable or necessary in the judgement of the Chair of the Panel.

The geographic location of and convenience of counsel are almost never considered by the Panel in deciding where to hold hearings. Since cases subject to Panel action are often national in scope, there rarely is one central place for hearings that would be convenient for all counsel of record anyway. Thus, where hearings are held is a matter vested within the sole discretion of the Panel.

See note 67, supra.

Often, moreover, actual hearings before the Panel are usually quite brief, if they occur at all. Only one half hour is allotted for argument, and that time "shall be divided equally among those with varying viewpoints."

See John T. McDermott, THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, 57 F.R.D. 215, 228 (1972) ("hearings generally are limited to oral argument as to whether or not, in the opinion of the particular attorney, transfer would be to the benefit or detriment of his client and to which district transfer would seem to him to be most appropriate.").

J.P.M.L.R. 16(e).

In multiparty and class action cases in which dozens (if not hundreds) of cases are subject to Panel action, the pro rata division of time for argument may be so de minimis as to render meaningless the value of oral argument. As such, heightened importance is often placed on the content of the briefs, with emphasis focused upon the transfer and consolidation factors discussed herein.

VI. Opposing Transfer

While any opposition to a transfer motion or a conditional transfer order should obviously be timely filed, failure to interpose a brief in opposition to transfer is not necessarily fatal. There is no "default" rule. The Panel considers even unopposed transfer motions on their merits, and has occasionally sionally denied unopposed transfer motions. However, Panel Rule 10(c) expressly states that failure to respond shall be taken as acquiescence in the transfer motion. Even if that implication is intended, it is always good form to file some response to the motion, even if it is merely a notice of joinder or non-opposition to the motion. Also, failure to file a response to a motion bars the non-responding party from giving oral argument at any hearing on the motion.

See Panel Rule 10(g) (prohibiting a joinder motion from adding any action to the motion).

See J.P.M.L.R. 16(c).

Any respondent to a transfer motion must specifically admit or deny (in whole or part) the averments in the motion seeking transfer, and must do so in separately numbered paragraphs corresponding to those in the transfer motion.

J.P.M.L.R. 9(b).

Any brief submitted in opposition to a transfer motion should also address the above-referenced transfer factors considered by the Panel. Most importantly, a brief in opposition to a transfer motion should address whether the aforementioned threshold statutory elements are met, and whether application of any of those elements favors opposing, rather than granting transfer.

See note 50, supra, and accompanying text.

Additionally, consideration should be given to whether the purposes of the statute cannot be achieved because discovery is complete, the case is trial ready, nor transfer is sought for some improper purpose (such as: blatant "forum shopping"; the movant is attempting to "cure" venue infirmities or other procedural defects in the originally filed action), or, the movant is attempting to avoid or "undo" adverse pretrial rulings issued by the transferor court(s).

See In re Midwest Milk Monopolization Litig., 441 F. Supp. 930 (J.P.M.L. 1977).

Id.

See In re Beef Indus. Antitrust Litig., 419 F. Supp. 720, 722 (J.P.M.L. 1976) (prospect of unfavorable ruling by transferee court or possibility that another district judge may be more favorably disposed to litigants' contentions are not factors properly considered by Panel in deciding transfer motions), rev'd on other grounds, 600 F.2d 1148 (5th Cir. 1979), reh'g denied, 616 F.2d 569 (5th Cir. 1980).

VII. Transfer Mechanics A. Impact on Pending Cases

The question most frequently asked by judges and lawyers of the Clerk of the Panel is, "What effect does the filing of a transfer motion or order to show cause have on my pending case?" Answer: "none."

The mere filing of a § 1407 motion with the Panel does not affect the pretrial proceedings in the court in which the pre-transfer cases are pending. Indeed, a Panel transfer order is only effective when it is filed in the office of the clerk of the district court of the transferee district: only at that point does jurisdiction vest in the transferee court and divest in the transferor courts. As a practical matter, this means that discovery and dispositive motion practice in the pre-transfer courts will proceed until a Panel transfer order is operative.

J.P.M.L.R. 18.

While it may seem sensible to stay discovery in cases that may be transferred by the Panel, district courts will commonly refuse to grant a motion to stay discovery pending the outcome of a Panel transfer motion. Indeed, if action in any court is stayed, it likely will be action before the Panel: sometimes the Panel will, in the interests of comity and good will, wait for a transferor court to rule on a pending motion — such as a motion to dismiss — before ruling on the transfer motion since the outcome of a dispositive motion in the transferor court obviously has the potential of rendering Panel action moot.

Compare In re Plumbing Fixture Cases, 298 F. Supp. 484, 496 (J.P.M.L. 1968) ("The successful use of Section 1407 requires cooperation among the Courts and by the Panel in an atmosphere of trust, confidence, comity and good will."), with Boudreaux v. Met Life Ins. Co., 1995 WL 83788 (E.D. La. 1995) (granting motion to stay proceedings in tag-along action pending outcome of Panel conditional transfer order).

B. Choice of Law

As noted, the courts will rarely suspend pretrial litigation while a Panel transfer motion is pending (a tag-along action may be an exception). Even if a dispositive or other motion is pending in the transferor court, and the Panel orders transfer before a ruling on the motion is issued, the transferee court can "pick up" and decide the motion. However, complex choice of law issues can arise in such instances.

For example, where the basis for a motion to dismiss is forum non conveniens or improper venue, those issues may be rendered moot if the case is transferred by the Panel pursuant to § 1407 since venue considerations do not apply in "MDLed" cases.

However, as noted, "convenience of the parties and witnesses" is a factor — albeit a very minor one-the Panel considers in deciding whether a case should be transferred. See note 64, supra, and accompanying text.

In other instances: "In diversity cases, the law of the transferor district follows the case to the transferee district. Where the claim or defense arises under federal law, however, the court must consider whether to apply the law of its circuit or that of the transferor court, keeping in mind that statutes of limitations may present unique problems."

MANUAL at 253-54 (citations omitted). See also In re NASDAQ Market Makers Antitrust Litig., 929 F. Supp. 174, 176-77 (S.D.N.Y. 1996) ("Where a case is transferred to a district court for consolidation pursuant to 28 U.S.C. § 1407 . . . `a transferee federal court should apply its interpretations of federal law, not the constructions of federal law of the transferor circuit.' . . . Indeed, in the absence of a single body of law for unified proceedings, `[t]he conduct of multidistrict litigation, which is invariably time consuming as it is, will grind to a standstill while transferee judges read separate briefs, each based on the case law of a transferor circuit, on a single issue of federal law.' . . . The law of the Second Circuit will be applied here where the circuits are in conflict, to avoid potential conflicts in interpretation and to uphold the efficiency sought by 28 U.S.C. § 1407.") (citations omitted); cf, In re United Mine Workers of America Employee Ben. Plans Litig., 854 F. Supp. 914, 915-22 (D.D.C. 1994) (rule that district court must apply law of transferor forum following transfer was not limited to diversity actions, but, rather, applied to federal question cases as well).

Finally, choice of law issues are not considered by the Panel in determining whether transfer is appropriate or to what court transfer should be ordered. Instead, this is an issue that transferee and appellate courts must struggle with and resolve.

See In re General Motors Class E Stock Buyout Sec. Litig., 696 F. Supp. 1546, 1547 n. 1 (J.P.M.L. 1988).

See Robert A. Ragazzo, TRANSFER AND CHOICE OF FEDERAL LAW: THE APPELLATE MODEL, 93 Mich. L. Rev. 703 (1995). See also In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1176 (D.C. Cir. 1987), cert, granted, 485 U.S. 986, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988), affd 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed.2d 113 (1989). Korean Air has been cited by at least one court as "the leading case on choice of law in multidistrict transfers." In re Donald J. Trump Casino Sec. Litig.-Ta Mahal Litig., 7 F.3d 357, n. 8 (3rd Cir. 1993), cert, denied, 510 U.S. 1178, 114 S.Ct. 1219, 127 L.Ed.2d 565 (1994).

C. Law of the Case

What occurs after a case has been transferred is beyond the scope of this article. However, law of the case considerations warrant brief mention because the nature of certain decisions in the transferor court may have some impact upon shaping an argument for whether a case should be transferred at all. For example, favorable decisions in the transferor court may motivate an MDL party to oppose transfer. If transfer is successful over such opposition, that party may want to argue in the transferee court that prior decisions of the transferor court are now "law of the case"; or, at a minimum, the transferee court should respect decisions entered by the transferor courts under the doctrine of comity.

Unlike the non-MDL circumstance in which a court order or decision in a case may have stare decisis, res judicata, collateral estoppel, or law of the case affect on future decisions in the case or other actions involving the same parties and issues, once the Panel has ordered transfer and that order has become effective, it is up to the transferee court to decide whether to adopt and allow to remain in effect orders previously entered by the transferor courts.

See MANUAL at 252-53 notes.

Similarly, once a case is remanded upon the completion of pretrial proceedings in the transferee court, the transferor court has the power to vacate or mondify rulings made by the transferee court — subject to the practical reality that such action may undermine and be contrary to the spirit and purpose of § 1407 transfer and consolidation in the first place.

See MANUAL at 256.

Of course, law of the case issues have no bearing on the ability of the Panel to order transfer. Rather, this is an issue solely for the transferee court to consider upon receipt of the transferred cases, and for the transferor courts to deal with upon remand.

See In re Regents of Univ. of Calif., 964 F.2d 1128, 1131-33 (Fed. Cir. 1992).

For more on this complex issue, see Joan Steinman, LAW OF THE CASE: A JUDICIAL PUZZLE IN CONSOLIDATED AND TRANSFERRED CASES AND IN MULTIDISTRICT LITIGATION, 135 U. Pa. L. Rev. 595 (1987).

D. Transmission of the File

Upon receipt of a transfer order from the clerk of the transferee court, the clerk of the transferor court will send the original file and certified copy of the docket sheet to the clerk of the transferee court. If any claim, cross-claim or counterclaim is retained in or remanded to the transferor court, then only a copy (rather than the original) of those papers will be sent to the transferee court.

E. State Court Actions

The Panel has no power over state court actions. It cannot transfer state court cases for consolidation with other state court cases or with other federal cases. Mindful of that reality, some parties who have either opted out of federal cases or have otherwise independently filed an individual or class action case in state court have attempted to "artfully craft" their state court pleading so as to avoid being hauled into a large, consolidated federal action. But that doesn't always work.

Subject to the limitations of the Anti-injunction Act, courts have used the All Writs Act to enjoin or remove parallel state court litigation that might frustrate a case pending in the federal court. Once a state court action is removed by a defendant to federal court, it is then subject to consolidation and transfer by the Panel.

28 U.S.C. § 2283. This statute proscribes federal courts from issuing "an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments."

28 U.S.C. § 1651. This statute empowers federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

See MANUAL at 261-62 notes.

See In re NASDAQ Market Makers Antitrust Litig., 929 F. Supp. 174 (S.D.N.Y. 1996); In re Antibiotic Drugs, 299 F. Supp. 1403, 1405 (J.P.M.L. 1969) (rejecting argument that because cases which were removed to federal court originated in state court they should not be transferred).

Even absent removal, however, the Panel has considered the pendency of state court actions (and where they are located) in determining where to transfer related federal cases. This approach is consistent with the guidance of the MANUAL.

See, e.g., In re Oil Spill by "Amoco Cadiz" off Coast of France on March 16, 1978, 471 F. Supp. 473, 478-79 (J.P.M.L. 1979) (possibility of promoting state/federal coordination of pretrial proceedings is a factor in selecting transferee district).

See MANUAL at pp. 259-62 (regarding coordination of state and federal cases).

F. Tag-along Actions

"Tag-along actions" are cases that arise after the Panel has transferred other, related actions. The new, tag-along case is subject to transfer with the previously transferred and consolidated cases by what is known as a "conditional transfer order." As the name implies, this type of order is issued to transfer a case on the condition that the parties in the transferor court tag-along action are unable to show why their case should not be transferred and consolidated with the previously transferred and consolidated cases. This is typically a battle not worth fighting. Once a conditional transfer order is issued, it is usually a foregone conclusion that the tag-along case will be transferred and consolidated absent exceptional circumstances (such as discovery in the tag-along case has closed and the case is now trial ready).

Conditional transfer orders are typically quite short, setting forth basic procedural history, identifying the factor(s) that warrant transfer of the tag-along cases (often simply stating that cases appear to involve questions of fact which are common to the actions previously transferred), ordering transfer, and setting forth the timing for the effective date of the order.

See, e.g., In re Orthopedic Bone Screw Prod. Liability Litig., 1997 WL 83672 (J.P.M.L. Feb. 20, 1997) (involving the transfer and consolidation of more than 2,000 cases).

Once the Panel is advised or becomes aware of a potential tag-along action, the Clerk will enter a conditional order transferring the new action to the transferee court. That order, however, will not become effective, if at all, for 15 days. Any notice of opposition must be filed within that time, and any motion to vacate the conditional order must be filed within 15 days thereafter. If such opposition and motion is timely filed, the conditional order will not be forwarded to the transferee court until further order of the Panel.

J.P.M.L. Rules 12(c) 12(d). Filing the notice of opposition will stay Panel action on the conditional transfer order for 15 days. If a motion to vacate the conditional transfer order is not timely filed thereafter, the stay will be lifted and the close will be transferred.

Id.

Thereafter, full briefing and hearing on the conditional order may be had and if the new action will be transferred, the conditional order then becomes effective.

J.P.M.L.R. 12(d).

G. Appeal

Panel decisions are not appealable as a matter of right. If a party disagrees with a Panel decision ordering transfer, review may be obtained by extraordinary writ pursuant to § 1407(e) and 28 U.S.C. § 1651. Reversal or vacation of a Panel transfer order is rare and, more often than not, unlikely in any given case. As for appeal of a Panel order denying transfer: forget it. Such an order is not appealable.

VIII. Termination

The vast majority of "MDLed" cases are "terminated" by settlement or dismissal in the transferee court, rather than remanded to the transferor courts for separate trials. Moreover, neither the Panel, parties, nor the transferee court are under any duty to keep transferor courts advised of the pretrial activities that occur in the transferee court. As such,each transferor court receiving a remanded case (potentially several years after it was originally filed) may face a significant "learning curve" regarding the merits, discovery issues, and other matters associated with the case in order to be prepared for trial. Because the parties in the remanded actions also face the potential challenge of several trials in different jurisdictions (and risk varying, inconsistent verdicts), cases are often settled or otherwise terminated in the transferee court, or the transferee court transfers the cases to itself under § 1404 or § 1406 for trial.

IX. Remand

When discovery is over, and if the cases have not been terminated in the transferee court, then the Panel, parties and transferee and transferor courts are faced with the daunting prospect of remand to the courts in which the cases were originally filed. While the Panel is expressly empowered under § 1407 to remand previously transferred and consolidated cases, the opinion of the transferee court as to whether remand is appropriate is given great deference.

Moreover, either the transferee or transferor court may, independent of Panel remand action, transfer the cases for trial to either the transferee or transferor court pursuant to 28 U.S.C. § 1404 or 28 U.S.C. § 1406. Unlike § 1407 Panel transfers, however, §§ 1404 and 1406 authorize transfer only if personal jurisdiction and venue lie in the transferee court. If those conditions are met, then the transferee court may invoke its power to transfer the cases to itself for trial. Often factors similar to those discussed above under § 1407 are considered by courts making transfer orders under § 1404.

This statute provides, inter alia: "For the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. sec; 1404.

This statute allows a district court to transfer a case filed in the wrong division or district to the proper court. See 28 U.S.C. § 1406.

See MANUAL at 251 n. 783.

See, e.g., Washington Nat'l Life Ins. Co. of N.Y. v. Morgan Stanley Co., Inc., 974 F.Supp. 214, 220-21 (S.D.N.Y. 1997). Conversely, transfers under § 1406 focus mainly upon the statutory consideration of whether the case was filed in the wrong judicial district or division. Notably, even though a case filed in the wrong division or district would otherwise preclude the court before whom the case was filed from taking any action in the case for lack of jurisdiction (except dismissal under Fed.R.Civ.P. 12(b)(1) or (2) or (3) or (6)) § 1406 expressly allows even courts that lack personal jurisdiction over the parties to transfer cases to the proper forum. See, e.g., Cellutech, Inc. v. Centennial Cellular Corp., 871 F.Supp. 46, 50-51 (Dist.Col. 1995).

While the purpose of §§ 1404, 1406 and 1407 is to promote efficiency and judicial economy, the mechanics of transfer and remand don't always run like clockwork. For example, in Washington National Life Insurance Company of New York v. Morgan Stanley Company, Inc., plaintiff filed his complaint in federal district court in New York. The defendants filed a motion seeking to transfer the case to Nebraska pursuant to § 1404. The motion was heard by the Magistrate, who issued a report and recommendation that defendants' motion be granted. However, before the report and recommendation could be considered by the Judge, the Panel simultaneously — like "ships passing in the night" — ordered the case transferred to Louisiana pursuant to § 1407. Thereafter, the Louisiana court recommended to the Panel, and the Panel ordered, remand of the case back to New York.

974 F.Supp. 214 (S.D.N.Y. 1997).

X. Conclusion

A brief in support or opposition to Panel action need only sway four of the seven members of the Panel. As such, strong and compelling argument should not be sacrificed for rigid and mechanical application of the factors discussed herein. The equities of whether a case should be transferred fit within "the almost subjective determination by the Panel as to whether transfer will serve the convenience of parties and witnesses and will promote the just and efficient conduct of the cases."

28 U.S.C. § 1407(d) ("The concurrence of four members shall be necessary to any action by the panel.").

John T. McDermott, THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION, 57 F.R.D. 215, 220 (1972). See also Herr, MULTIDISTRICT LITIGATION, supra, at 48 ("Rather than a mere fulfillment of a formal requirement, however, the brief should be viewed as an opportunity for persuasion.").

While the Panel may, sua sponte, order transfer over all opposition, it is often strategically advisable to muster as much support as possible for your position on the transfer issue (for or against) from counsel involved in or that may be affected by Panel action.

See In re Natural Gas Liquids Regulation Litig., 434 F. Supp. 665, 667 (J.P.M.L. 1977) (Panel may order transfer even if no party favors transfer); In re Asbestos and Asbestos Insulation Material Prod. Liab. Litig., 431 F. Supp. 906, 909 (J.P.M.L. 1977).

Ultimately, the Panel "has extremely broad discretion in the selection of the transferee district and in the selection of the transferee judge to whom the cases are to be assigned." No party has a "right" to a transfer, and "[n]o single factor determines which district is selected as the one to which the actions will be transferred." Thus, the equities of transfer are important. Knowing the mechanics of motion practice before the Panel, and understanding the factors considered by the Panel in deciding whether and where to transfer cases for consolidated or coordinated pretrial proceedings, will greatly enhance the effectiveness of motion practice before this interesting and important tribunal.

See John T. McDermott, THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION. 57 F.R.D. 215, 221 (1972).

In re New York City Mun. Sec. Litig., 439 F. Supp. 267, 270 (J.P.M.L. 1977), writ denied, 572 F.2d 49 (2nd Cir. 1978).

MANUAL at 253.

See In re Commonwealth Oil/Tesoro Petroleum Sec. Litig., 458 F. Supp. 225, 229 (J.P.M.L. 1978) (Panel must consider multidistrict litigation as a whole in light of purposes of 28 U.S.C. § 1407).

Appendix A UNITED STATES CODE ANNOTATED TITLE 28. JUDICIARY AND JUDICIAL PROCEDURE PART IV — JURISDICTION AND VENUE CHAPTER 87 — DISTRICT COURTS; VENUE RULES OF PROCEDURE OF THE JUDICIAL PANEL ON MULTIDISTRICT LITIGATION I. GENERAL RULES

Rule 1. Definitions

As used in these Rules "Panel" means the members of the Judicial Panel on Multidistrict Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, Title 28, United States Code.

"Clerk of the Panel" means the official appointed by the Panel to act as Clerk of the Panel and shall include those deputized by the Clerk of the Panel to perform or assist in the performance of the duties of the Clerk of the Panel.

"Chairman" means the Chairman of the Judicial Panel on Multidistrict Litigation appointed by the Chief Justice of the United States pursuant to Section 1407, or the member of the Panel designated by the Panel to act as Chairman in the absence or inability of the appointed Chairman.

A "tag-along action" refers to a civil action pending in a district court and involving common questions of fact with actions previously transferred under Section 1407.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 2. Keeping Records and Files

(a) The records and files of the Panel shall be kept by the Clerk of the Panel at the offices of the Panel. Records and files may be temporarily or permanently removed to such places at such times as the Panel or the Chairman of the Panel shall direct. The Clerk of the Panel may charge fees, as prescribed by the Judicial Conference of the United States, for duplicating records and files. Records and files shall be transferred to the Federal Records Center pursuant to Government Services Administration Authority to Dispose Records.

(b) In order to assist the Panel in carrying out its functions, the Clerk of the Panel shall obtain the complaints and docket sheets in all actions under consideration for transfer under 28 U.S.C. § 1407 from the clerk of each district court wherein such actions are pending. The Clerk of the Panel shall similarly obtain any other pleadings and orders that could affect the Panel's decision under 28 U.S.C. § 1407.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 3. Place of Filing of Papers

All papers for consideration by the Panel shall be submitted for filing to the Clerk of the Panel by mailing or delivering to:

Clerk of the Panel Judicial Panel on Multidistrict Litigation Thurgood Marshall Federal Judiciary Building One Columbus Circle, N.E., Room G-255, North Lobby Washington, D.C. 20002

No papers shall be left with or mailed to a Judge of the Panel. (Added May 3, 1993, eff. July 1, 1993.)

Rule 4. Failure to Comply with Rules

The Clerk of the Panel shall, when a paper submitted for filing is not in compliance with the provisions of these Rules, file such paper and advise counsel of the deficiencies and a prompt time frame for full compliance. If full compliance is not accomplished within the established time frame, the non-complying paper may be stricken by order of the Chairman of the Panel.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 5. Practice

Where not fixed by statute or rule, the practice shall be that heretofore customarily followed by the Panel.

(Added May 3, 1993, eff. July 1, 1993.)

II. RULES FOR MULTIDISTRICT LITIGATION UNDER 28 U.S.C. § 1407

Rule 6. Admission to Practice Before the Panel and Representation in Transferred Actions

Every member in good standing of the Bar of any district court of the United States is entitled without condition to practice before the Judicial Panel on Multidistrict Litigation. Any attorney of record in any action transferred under Section 1407 may continue to represent his or her client in any district court of the United States to which such action is transferred. Parties to any action transferred under Section 1407 are not required to obtain local counsel in the district to which such action is transferred.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 7. Manner of Filing of Papers

(a) An original of the following papers shall be submitted for filing to the Clerk of the Panel: a proof of service pursuant to Rule 8(a) and (b) of these Rules, a notice of appearance pursuant to Rule 8(c) of these Rules, a status notice pursuant to Rules 10(e), 11(e) and 12(b) of these Rules, a notice of opposition pursuant to Rules 12(c) and 14(f)(ii) of these Rules, a notice of related action pursuant to Rule 13(e) of these Rules, an application for extension of time pursuant to Rule 15 of these Rules, or a notice of presentation or waiver of oral argument pursuant to Rule 17(a) of these Rules. An original and eleven copies of all other papers shall be submitted for filing to the Clerk of the Panel. The Clerk of the Panel may require that additional copies also be submitted for filing.

(b) When papers are submitted for filing, the Clerk of the Panel shall endorse thereon the date for filing.

(c) Copies of motions for transfer of an action or actions pursuant to 28 U.S.C. § 1407 shall be filed in each district court in which an action is pending that will be affected by the motion. Copies of a motion for remand pursuant to 28 U.S.C. § 1407 shall be filed in the Section 1407 transferee district court in which any action affected by the motion is pending.

(d) Papers requiring only an original may be faxed to the Panel office with prior approval of the Clerk of the Panel. No papers requiring multiple copies shall be accepted via fax.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 8. Service of Papers Filed

(a) All papers filed with the Clerk of the Panel shall be accompanied by proof of previous service on all other parties in all actions involved in the litigation. Service and proof of service shall be made as provided in Rules 5 and 6 of the Federal Rules of Civil Procedure. The proof of service shall indicate the name and address of each person served and shall indicate the party represented by each. If a party is not represented by counsel, the proof of service shall indicate the name of the party and the party's last known address. The proof of service shall indicate why any person named as a party in a constituent complaint was not served with the Section 1407 pleading. The original proof of service shall be filed with the Clerk of the Panel and copies thereof shall be sent to each person included within the proof of service. After the "Panel Service List" described in subsection (d) of this Rule has been received from the Clerk of the Panel, the "Panel Service List" shall be utilized for service of responses to motions and all other filings. In such instances, the "Panel Service List" shall be attached to the proof of service and shall be supplemented in the proof of service in the event of the presence of additional parties or successor counsel.

(b) The proof of service pertaining to motions for transfer of actions pursuant to 28 U.S.C. § 1407 shall certify that copies of the motions have been mailed or otherwise delivered for filing to the clerk of each district court in which an action is pending that will be affected by the motion. The proof of service pertaining to a motion for remand pursuant to 28 U.S.C. § 1407 shall certify that a copy of the motion has been mailed or otherwise delivered for filing to the clerk of the Section 1407 transferee district court in which any action affected by the motion is pending.

(c) Within eleven days of filing of a motion to transfer, an order to show cause or a conditional transfer order, each party or designated attorney shall notify the Clerk of the Panel, in writing, of the name and address of the attorney designated to receive service of all pleadings, notices, orders and other papers relating to practice before the Judicial Panel on Multidistrict Litigation. Only one attorney shall be designated for each party. Any party not represented by counsel shall be served by mailing such pleadings to the party's last known address. Requests for an extension of time to file the designation of attorney shall not be granted except in extraordinary circumstances.

(d) In order to facilitate compliance with subsection (a) of this Rule, the Clerk of the Panel shall prepare and serve on all counsel and parties not represented by counsel, a "Panel Service List" containing the names and addresses of the designated attorneys and the party or parties they represent in the actions under consideration by the Panel and the names and addresses of the parties not represented by counsel in the actions under consideration by the Panel. (e) If following transfer of any group of multidistrict litigation, the transferee district court appoints liaison counsel, this Rule shall be satisfied by serving each party in each affected action and all liaison counsel. Liaison counsel designated by the transferee district court shall receive copies of all Panel orders concerning their particular litigation and shall be responsible for distribution to the parties for whom he or she serves as liaison counsel.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 9. Form of Papers Filed

(a) Averments in any motion seeking action by the Panel shall be made in numbered paragraphs, each of which shall be limited, as far as practicable, to a statement of a single factual averment.

(b) Responses to averments in motions shall be made in numbered paragraphs, each of which shall correspond to the number of the paragraph of the motion to which the responsive paragraph is directed. Each responsive paragraph shall admit or deny wholly or in part the averment of the motion, and shall contain the respondent's version of the subject matter when the averment or the motion is not wholly admitted.

(c) Each pleading filed shall be:

(i) flat and unfolded;
(ii) plainly written, typed in double space, printed or prepared by means of a duplicating process, without erasures or interlineations which materially deface it;
(iii) on opaque, unglazed, white paper (not onionskin);
(iv) approximately 8 1/2 × 11 inches in size; and
(v) fastened at the top-left corner without front or back covers.
(d) The heading on the first page of each pleading shall commence not less than three inches from the top of the page. Each pleading shall bear the heading "Before the Judicial Panel on Multidistrict Litigation," the identification "MDL Docket No." and the descriptive title designated by the Panel for the litigation involved. If the Panel has not yet designated a title, an appropriate descriptive title shall be used.

(e) The final page of each pleading shall contain the name, address and telephone number of the attorney or party in active charge of the case.

(f) Except with the approval of the Panel, each brief submitted for filing with the Panel shall be limited to twenty pages, exclusive of exhibits. Absent exceptional circumstances, motions to exceed page limits shall not be granted. Exhibits exceeding a cumulative total of 25 pages shall be bound separately from the accompanying pleading.

(g) Proposed Panel orders shall not be submitted with papers for filing. (Added May 3, 1993, eff. July 1, 1993.)

Rule 10. Motion Practice

(a) All requests for action by the Panel under 28 U.S.C. § 1407 shall be made by written motion. Every motion shall be accompanied by:

(i) a brief in support thereof in which the background of the litigation and factual and legal contentions of the movant shall be concisely stated in separate portions of the brief with citation of applicable authorities; and
(ii) a schedule giving
(A) the complete name of each action involved, not shortened by the use of references such as "et al." or "etc.";
(B) the district court in which each action is pending;
(C) the civil action number of each action; and
(D) the name of the judge assigned each action, if known.
(b) The Clerk of the Panel shall notify recipients of a motion of the filing date, caption, MDL docket number, briefing schedule and pertinent Panel policies.

(c) Within twenty days after filing of a motion, all other parties shall file a response thereto. Failure of a party to respond to a motion shall be treated as that party's acquiescence to the action requested in the motion.

(d) The movant may, within five days after the lapse of the time period for filing responsive briefs, file a single brief in reply to any opposition.

(e) Motions, their accompaniments, responses, and replies shall also be governed by Rules 7, 8 and 9 of these Rules.

(f) With respect to any action that is the subject of Panel consideration, counsel shall notify the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel.

(g) A joinder in a motion shall not add any action to the previous motion.

(h) Once a motion is filed, any responsive pleading that purports to be a "motion" in the docket shall be filed by the Clerk of the Panel as a response unless the "motion" adds an action. The Clerk of the Panel, upon designating such a pleading as a motion, shall acknowledge that designation by the distribution of a briefing schedule to all parties in the docket. Response time resulting from an additional motion shall ordinarily be extended only to those parties directly affected by the additional motion. An accelerated briefing schedule for the additional motion may be set by the Clerk of the Panel to conform with the hearing schedule established by the Chairman.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 11. Show Cause Orders

(a) When transfer of multidistrict litigation is being considered on the initiative of the Panel pursuant to 28 U.S.C. § 1407(c)(i), an order shall be filed by the Clerk of the Panel directing the parties to show cause why the action or actions should not be transferred for coordinated or consolidated pretrial proceedings. Any party or counsel in such actions shall notify the Clerk of the Panel of any other federal district court actions related to the litigation encompassed by the show cause order. This notification shall include not only additional actions pending at the time of the issuance of the show cause order but also all future-filed related federal actions.

(b) Any party may file a response to the show cause order within twenty days of the filing of said order unless otherwise provided for in the order. Failure of a party to respond to a show cause order shall be treated as that party's acquiescence to the Panel action contemplated in the order.

(c) Within five days after the lapse of the time period for filing a response, any party may file a reply limited to new matters.

(d) Responses and replies shall be filed and served in conformity with Rules 7, 8 and 9 of these Rules.

(e) With respect to any action that is the subject of Panel consideration, counsel shall promptly notify the Clerk of the Panel of any development that would partially or completely moot the matter before the Panel.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 12. Conditional Transfer Orders for "Tag-Along Actions"

(a) Upon learning of the pendency of a potential "tag-along action," as defined in Rule 1 of these Rules, an order may be entered by the Clerk of the Panel transferring that action to the previously designated transferee district court on the basis of the prior hearing or hearings and for the reasons expressed in previous opinions and orders of the Panel in the litigation. The Clerk of the Panel shall serve this order on each party to the litigation but, in order to afford all parties the opportunity to oppose transfer, shall not send the order to the clerk of the transferee district court for fifteen days from the entry thereof.

(b) Parties to an action subject to a conditional transfer order shall notify the Clerk of the Panel within the fifteen-day period if that action is no longer pending in its transferor district court.

(c) Any party opposing the transfer shall file a notice of opposition with the Clerk of the Panel within the fifteen-day period. If a notice of opposition is received by the Clerk of the Panel within this fifteen-day period, the Clerk of the Panel shall not transmit said order to the clerk of the transferee district court until further order of the Panel.

(d) Within fifteen days of the filing of its notice of opposition, the party opposing transfer shall file a motion to vacate the conditional transfer order and brief in support thereof. The Clerk of the Panel shall set the motion for hearing at the next appropriate session of the Panel. Failure to file and serve a motion and brief shall be treated as withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the order to the clerk of the transferee district court.

(e) Conditional transfer orders do not become effective unless and until they are filed with the clerk of the transferee district court.

(f) Notices of opposition and motions to vacate orders of the Panel and responses thereto shall be governed by Rules 7, 8, 9 and 10 of these Rules.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 13. Miscellaneous Provisions Concerning "Tag-Along Actions"

(a) Potential "tag-along actions" filed in the transferee district require no action on the part of the Panel and requests for assignment of such actions to the Section 1407 transferee judge should be made in accordance with local rules for the assignment of related actions. (b) Upon learning of the pendency of a potential "tag-along action" and having reasonable anticipation of opposition to transfer of that action, the Panel may direct the Clerk of the Panel to file a show cause order, in accordance with Rule 11 of these Rules, instead of a conditional transfer order.

(c) Failure to serve one or more of the defendants in a potential "tag-along action" with the complaint and summons as required by Rule 4 of the Federal Rules of Civil Procedure does not preclude transfer of such action under Section 1407. Such failure, however, may be submitted by such a defendant as a basis for opposing the proposed transfer. The inability of the Clerk of the Panel to serve a conditional transfer order on all defendants or their counsel shall not render the transfer of the action void but can be submitted by such a defendant as a basis for moving to remand as to such defendant.

(d) A civil action apparently involving common questions of fact with actions under consideration by the Panel for transfer under Section 1407, which was filed or came to the attention of the Panel either after the initial hearing before it or too late to be included in the initial hearing, will be treated by the Panel as a potential "tag-along action."

(e) Any party or counsel in actions previously transferred under Section 1407 or under consideration by the Panel for transfer under Section 1407 shall promptly notify the Clerk of the Panel of any potential "tag-along actions" in which that party is also named or in which that counsel appears.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 14. Termination and Remand

In the absence of unusual circumstances —

(a) Actions terminated in the transferee district court by valid judgment, including but not limited to summary judgment, judgment of dismissal and judgment upon stipulation, shall not be remanded by the Panel and shall be dismissed by the transferee district court. The clerk of the transferee district court shall send a copy of the order terminating the action to the Clerk of the Panel but shall retain the original files and records unless otherwise directed by the transferee judge or by the Panel.

(b) Each transferred action that has not been terminated in the transferee district court shall be remanded by the Panel to the transferor district for trial, unless ordered transferred by the transferee judge to the transferee or other district under 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406. In the event that the transferee judge so transfers an action under 28 U.S.C. § 1404(a) or 1406, no further action of the Panel shall be necessary to authorize further proceedings including trial. Actions that were originally filed in the transferee district require no action by the Panel to be reassigned to another judge in the transferee district at the conclusion of the coordinated or consolidated pretrial proceedings affecting those actions.

(c) The Panel shall consider remand of each transferred action or any separable claim, cross-claim, counterclaim or third-party claim at or before the conclusion of coordinated or consolidated pretrial proceedings on

(i) motion of any party,
(ii) suggestion of the transferee district court, or
(iii) the Panel's own initiative, by entry of an order to show cause, a conditional remand order or other appropriate order.
(d) The Panel is reluctant to order remand absent a suggestion of remand from the transferee district court. If remand is sought by motion of a party, the motion shall be accompanied by:

(i) an affidavit reciting
(A) whether the movant has requested a suggestion of remand from the transferee district court, how the court responded to any request, and, if no such request was made, why;
(B) whether all common discovery and other pretrial proceedings have been completed in the action sought to be remanded, and if not, what remains to be done; and
(C) whether all orders of the transferee district court have been satisfactorily complied with, and if not, what remains to be done; and
(ii) a copy of the transferee district court's final pretrial order, where such order has been entered.

Motions to remand and responses thereto shall be governed by Rules 7, 8, 9 and 10 of these Rules.

(e) When an order to show cause why an action or actions should not be remanded is entered pursuant to subsection (c), paragraph (iii) of this Rule, any party may file a response within twenty days of the filing of said order unless otherwise provided for in the order. Within five days of filing of a party's response, any party may file a reply brief limited to new matters. Failure of a party to respond to a show cause order regarding remand shall be treated as that party's acquiescence to the remand. Responses and replies shall be filed and served in conformity with Rules 7, 8 and 9 of these Rules.

(f) Conditional Remand Orders

(i) When the Panel has been advised by the transferee district judge, or otherwise has reason to believe, that pretrial proceedings in the litigation assigned to the transferee district judge are concluded or that remand of an action or actions is otherwise appropriate, an order may be entered by the Clerk of the Panel remanding the action or actions to the transferor district court. The Clerk of Panel shall serve this order on each party to the litigation but, in order to afford all parties the opportunity to oppose remand, shall not send the order to the clerk of the transferee district court for fifteen days from the entry thereof.
(ii) Any party opposing the remand shall file a notice of opposition with the Clerk of the Panel within the fifteen-day period. If a notice of opposition is received by the Clerk of the Panel within this fifteen-day period, the Clerk of the Panel shall not transmit said order to the clerk of the transferee district court until further order of the Panel.
(iii) Within fifteen days of the filing of its notice of opposition, the party opposing remand shall file a motion to vacate the conditional remand order and brief in support thereof. The Clerk of the Panel shall set the motion for hearing at the next appropriate session of the Panel. Failure to file and serve a motion and brief shall be treated as a withdrawal of the opposition and the Clerk of the Panel shall forthwith transmit the order to the clerk of the transferee district court.
(iv) Conditional remand orders do not become effective unless and until they are filed with the clerk of the transferee district court.
(v) Notices of opposition and motions to vacate such orders of the Panel and responses thereto shall be governed by Rules 7, 8, 9 and 10 of these Rules.
(g) Upon receipt of an order to remand from the Clerk of the Panel, the parties shall furnish forthwith to the transferee district clerk a stipulation or designation of the contents of the record or part thereof to be remanded and furnish the transferee district clerk all necessary copies of any pleading or other matter filed so as to enable the transferee district clerk to comply with the order of remand.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 15. Applications for Extensions of Time

Any application for an extension of time to file a pleading or perform an act required by these Rules must be in writing, must request a specific number of additional days and may be acted upon by the Clerk of the Panel. Such an application will be evaluated in relation to the impact on the Panel's calendar as well as on the basis of the reasons set forth in support of the application. Any party aggrieved by the Clerk of the Panel's action on such application may submit its objections to the Panel for consideration. Absent exceptional circumstances, no extensions of time shall be granted to file a notice of opposition to either a conditional transfer order or a conditional remand order. All applications for extensions of time shall be filed and served in conformity with Rules 7, 8 and 9 of these Rules.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 16. Hearings

(a) Hearings shall be held as ordered by the Panel. The Panel shall convene whenever and wherever desirable or necessary in the judgment of the Chairman. The Chairman shall determine which matters shall be set for hearing at each session and the Clerk of the Panel shall give notice to counsel for all parties involved in the litigation of the time, place and subject matter of such hearing.

(b) No transfer or remand determination regarding any action pending in district court shall be made by the Panel when any party timely opposes such transfer or remand unless a hearing has been held or unless the matter has been submitted on the briefs in accordance with Rule 17 of these Rules. Unless otherwise ordered by the Panel, all other matters before the Panel, such as a motion for reconsideration, shall be considered and determined upon the basis of the papers filed.

(c) Except for leave of the Panel on a showing of good cause, only those parties to actions scheduled for hearing who have filed a motion or written response to a motion or order shall be permitted to appear before the Panel and present oral argument. (d) Counsel for those supporting transfer or remand under Section 1407 and counsel for those opposing such transfer or remand are to confer separately prior to the hearing for the purpose of organizing their arguments and selecting representatives to present all views without duplication.

(e) Unless otherwise ordered by the Panel, a maximum of thirty minutes shall be allotted for argument in each new group of actions being considered for Section 1407 treatment and a maximum of twenty minutes shall be allotted for arguments in all other matters. The time shall be divided equally among those with varying viewpoints. Counsel for the moving party or parties shall generally be heard first.

(f) So far as practicable and consistent with the purposes of Section 1407, the offering of oral testimony before the Panel shall be avoided. Accordingly, oral testimony shall not be received except upon notice, motion and order of the Panel expressly providing for it. Proof may be submitted as provided in the Federal Rules of Civil Procedure.

(g) After an action or group of actions has been set for hearing, it may only be continued by order of the Panel on good cause shown.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 17. Notice of Presentation or Waiver of Oral Argument, and Matters Submitted on the Briefs

(a) At such time in advance of the date of the hearing as required by the Clerk of the Panel in the notice of hearing, counsel shall notify the Clerk of the Panel in writing of one of the following: (1) counsel will waive oral argument, if all other counsel in the matter set for hearing waive oral argument; (2) counsel will present oral argument, regardless of whether any other counsel in the matter set for hearing presents oral argument; or (3) counsel waives oral argument. All notices of presentation or waiver of oral argument shall be filed and served in conformity with Rules 7 and 8 of these Rules.

(b) If all parties to a matter set for hearing waive oral argument, the matter shall be submitted for decision by the Panel on the basis of the papers filed. If a party is not present when a matter to be heard is called at the hearing, the matter shall not be rescheduled and that party's position shall be treated as submitted for decision by the Panel on the basis of the papers filed, unless otherwise ordered by the Panel.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 18. Effect of the Pendency of an Action Before the Panel

The pendency of a motion, order to show cause, conditional transfer order or conditional remand order before the Panel concerning transfer or remand of an action pursuant to 28 U.S.C. § 1407 does not affect or suspend orders and pretrial proceedings in the district court in which the action is pending and does not in any way limit the pretrial jurisdiction of that court. A transfer or remand pursuant to 28 U.S.C. § 1407 shall be effective when the transfer or remand order is filed in the office of the clerk of the district court of the transferee district. (Added May 3, 1993, eff. July 1, 1993.)

Rule 19. Transfer of Files

(a) Upon receipt of a certified copy of a transfer order from the clerk of the transferee district court, the clerk of the transferor district court shall forward to the clerk of the transferee district court the complete original file and a certified copy of the docket sheet for each transferred action.

(b) If an appeal is pending, or a notice of appeal has been filed, or leave to appeal has been sought under 28 U.S.C. § 1292(b) or a petition for an extraordinary writ is pending, in any action included in an order of transfer under 28 U.S.C. § 1407, and the original file or parts thereof have been forwarded to the court of appeals, the clerk of the transferor district court shall notify the clerk of the court of appeals of the order of transfer and secure the original file long enough to prepare and transmit to the clerk of the transferee district court a certified copy of the docket sheet.

(c) If the transfer order provides for the separation and simultaneous remand of any claim, cross-claim, counterclaim, or third-party claim, the clerk of the transferor district court shall retain the original file and shall prepare and transmit to the clerk of the transferee district court a certified copy of the docket sheet and copies of all papers except those relating exclusively to separated and remanded claims.

(d) Upon receipt of an order to remand from the Clerk of the Panel, the transferee district court shall prepare and send to the clerk of the transferor district court the following:

(i) a certified copy of the individual docket sheet for each action being remanded;
(ii) a certified copy of the master docket sheet, if applicable;
(iii) the entire file for each action being remanded;
(iv) a certified copy of the final pretrial order, if applicable; and
(v) a "record on remand" to be composed of those parts of the files and records produced during coordinated or consolidated pretrial proceedings which have been stipulated to or designated by counsel as being necessary for any or all proceedings to be conducted following remand. It shall be the responsibility of counsel originally preparing or filing any document to be included in the "record on remand" to furnish on request sufficient copies to the clerk of the transferee district court.
(e) The Clerk of the Panel shall be notified when any files have been transmitted pursuant to this Rule.

(Added May 3, 1993, eff. July 1, 1993.)

III. RULES FOR MULTICIRCUIT PETITIONS FOR REVIEW UNDER 28 U.S.C. § 2112(A)(3)

Rule 20. Filing of Notices

(a) An original of a notice of multicircuit petitions for review pursuant to 28 U.S.C. § 2112(a)(3) shall be submitted for filing to the Clerk of the Panel by the affected agency, board, commission or officer. The term "agency" as used in Section III of these Rules shall include agency, board, commission or officer.

(b) All notices of multicircuit petitions for review submitted by the affected agency for filing with the Clerk of the Panel shall embrace exclusively petitions for review filed in the courts of appeals within ten days after issuance of an agency order and received by the affected agency from the petitioners within that ten day period.

(c) When a notice of multicircuit petitions for review is submitted for filing to the Clerk of the Panel, the Clerk of the Panel shall file the notice and endorse thereon the date of filing.

(d) Copies of notices of multicircuit petitions for review shall be filed by the affected agency with the clerk of each circuit court of appeals in which a petition for review is pending that is included in the notice.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 21. Accompaniments to Notices

(a) All notices of multicircuit petitions for review shall be accompanied by:

(i) a copy of each involved petition for review as the petition for review is defined in 28 U.S.C. § 2112(a)(2); and
(ii) a schedule giving
(A) the date of the relevant agency order;
(B) the case name of each petition for review involved;
(C) the circuit court of appeals in which each petition for review is pending;
(D) the appellate docket number of each petition for review;
(E) the date of filing by the court of appeals of each petition for review;
(F) the date of receipt by the agency of each petition for review.
(b) The schedule in Subsection (a)(ii) of this Rule shall also be governed by Rules 20, 22 and 23(a) of these Rules.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 22. Service of Notices

(a) All notices of multicircuit petitions for review shall be accompanied by proof of service by the affected agency on all other parties in all petitions for review included in the notice. Service and proof of service shall be made as provided in Rule 25 of the Federal Rules of Appellate Procedure. The proof of service shall state the name and address of each person served and shall indicate the party represented by each. If a party is not represented by counsel, the proof of service shall indicate the name of the party and his or her last known address. The original proof of service shall be submitted by the affected agency for filing with the Clerk of the Panel and copies thereof shall be sent by the affected agency to each person included within the proof of service.

(b) The proof of service pertaining to notices of multicircuit petitions for review shall certify that copies of the notices have been mailed or otherwise delivered by the affected agency for filing to the clerk of each circuit court of appeals in which a petition for review is pending that is included in the notice.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 23. Form of Notices

(a) Each notice of multicircuit petitions for review shall be

(i) flat and unfolded;
(ii) plainly written, typed in double space, printed or prepared by means of a duplicating process, without erasures or interlineations which materially deface it;
(iii) on opaque, unglazed white paper (not onionskin);
(iv) approximately 8 1/2 × 11 inches in size; and
(v) fastened at the top-left corner without front or back covers.
(b) The heading on the first page of each notice of multicircuit petitions for review shall commence not less than three inches from the top of the page. Each notice shall bear the heading "Notice to the Judicial Panel on Multidistrict Litigation of Multicircuit Petitions for Review," followed by a brief caption identifying the involved agency, the relevant agency order, and the date of the order.

(c) The final page of each notice of multicircuit petitions for review shall contain the name, address and telephone number of the individual or individuals who submitted the notice on behalf of the agency.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 24. Random Selection

(a) Upon filing a notice of multicircuit petitions for review, the Clerk of the Panel or designated deputy shall randomly select a circuit court of appeals from a drum containing an entry for each circuit wherein a constituent petition for review is pending. Multiple petitions for review pending in a single circuit shall be allotted only a single entry in the drum. This random selection shall be witnessed by the Clerk of the Panel or a designated deputy other than the random selector. Thereafter, an order on behalf of the Panel shall be issued, signed by the random selector and the witness,

(i) consolidating the petitions for review in the court of appeals for the circuit that was randomly selected; and
(ii) designating that circuit as the one in which the record is to be filed pursuant to Rules 16 and 17 of the Federal Rules of Appellate Procedure.
(b) A consolidation of petitions for review shall be effective when the Panel's consolidation order is filed at the offices of the Panel by the Clerk of the Panel.

(Added May 3, 1993, eff. July 1, 1993.)

Rule 25. Service of Panel Consolidation Order

(a) The Clerk of the Panel shall serve the Panel's consolidation order on the affected agency through the individual or individuals, as identified in Rule 23(c) of these Rules, who submitted the notice of multicircuit petitions for review on behalf of the agency. (b) That individual or individuals, or anyone else designated by the agency, shall promptly serve the Panel's consolidation order on all other parties in all petitions for review included in the Panel's consolidation order, and shall promptly submit a proof of that service to the Clerk of the Panel. Service and proof of that service shall also be governed by Rule 22 of these Rules.

(c) The Clerk of the Panel shall serve the Panel's consolidation order on the clerks of all circuit courts of appeals that were among the candidates for the Panel's random selection.

(Added May 3, 1993, eff. July 1, 1993.)

Appendix B

Table S-21 Cases Transferred by Order of the Judicial Panel on Multidistrict Litigation, Cumulative from September 1968 Through September 30, 1996 12 Months Ended September 30, 1996 Cumulative 1968-1996 Total Pend- ing Circuit and in Transfer- ee District Into District Out of District Into District Out of District District TOTAL 16,094 16,094 92,179 92,179 48,258 1st 12 154 251 4,100 314 2nd 43 1,730 2,545 9,410 351 3rd 6,075 968 56,343 3,732 23,705 4th 66 981 1,243 7,654 5th 211 4,442 954 14,170 579 6th 260 5,856 1,621 29,572 503 7th 149 299 1,293 4,666 508 8th 19 161 582 3,211 378 9th 92 821 1,605 7,066 236 10th 32 214 1,599 2,908 152 11th 8,505 443 22,158 5,372

DC — 25 1,975 318 31 ME — 47 4 431 — MA 9 59 174 3,299 32 NH — 15 28 179 — RI — 27 — 140 — PR 3 6 45 51 282 CT — 170 339 1,696 72 NY, N — 11 4 714 72 NY, E 19 121 1,044 1,598 95 NY, S 24 1,390 1,158 4,598 180 NY, W — 37 — 746 — VT — 1 — 58 — DE — 56 29 126 — NJ 57 410 211 1,435 123 PA, E 6,635 428 55,920 1,141 23,514 PA, M — 57 18 404 — PA, W, 13 17 165 543 68 VI — — — 83 — ND 28 55 224 1,472 56 NC, E — 60 9 353 6 NC, M 9 15 18 213 10 NC, W — 20 49 306 — SC 16 342 847 1,528 69 VA, E 13 151 48 2,027 13 VA, W — 139 — 678 — WV, N — 3 1 47 — WV, S — 196 47 1,030 — LA, E 7 68 300 956 13 LA, M — 13 8 418 — LA, W — 127 9 754 — MS, N — 11 6 103 6 MS, S — 29 — 1,794 — TX, N — 205 145 718 — TX, E 185 278 326 2,066 524 TX, S 19 3,633 146 7,018 36 TX, W — 78 14 343 — KY, E — 8 53 246 — KY, W — 25 80 331 — MI, E 80 1,197 264 1,899 186 MI, W 2 9 4 105 3 OH, N — 4,405 128 25,543 — OH, S 174 17 1,067 534 308 TN, E — 55 2 406 — TN, M 4 21 10 200 6 TN, W — 119 13 308 — IL, E* — — — 9 — IL, C 25 71 28 957 37 IL, S — 59 — 285 — IN, N — 44 — 183 — IN, S 1 13 178 1,407 4 WI, E — 23 6 341 — WI, W — 50 33 196 — AR, E — 5 6 212 6 AR, W — 6 — 71 — IA, N — 5 4 82 — IA, S — 10 5 1,014 — NB 19 73 299 703 372 MO, E — 41 104 366 — MO, W — 9 164 295 — NE — 8 — 235 — ND — — — 199 — SD — 4 — 34 — AK — 3 — 174 — AZ 4 64 47 694 22 CA, N 31 36 494 1,284 60 CA, E — 62 11 312 — CA, C 54 115 603 1,635 134 CA, S 3 116 65 411 5 HI — 18 14 427 — ID — 6 2 164 — MT — 31 4 128 5 NV — 87 125 356 — OR — 205 6 742 — WA, E — 33 — 130 — WA, W — 45 234 608 10 GUAM — — — 1 1 CO — 38 116 756 30 KS — 33 1,187 414 2 NM — 43 4 482 — OK, N — 5 13 637 — OK, E — 4 7 38 — OK, W — 64 143 330 — UT 12 25 19 225 13 WY 20 2 110 26 107 AL, N 8,486 57 21,836 355 21,094 AL, M — 23 — 84 — AL, S 1 9 20 161 93 FL, N — 31 26 347 — FL, M — 140 34 1,193 6 FL, S 10 66 124 841 125 GA, N 8 54 118 927 29 GA, M 1 9 23 120 1 GA, S — 40 — 1,344 — Source: Report of the Director, Judicial Business of the United States Courts (1995)

Appendix C

Table S-22 Cumulative Summary of Multidistrict Litigation During the Twelve-Month Periods Ended September 30, 1994 Through 1996 12 Months 12 Months Totals as of Ended Totals as of Ended Totals as of Sept. 30, 1994 Sept 30, 1995 Sept 30, 1995 Sept. 30, 1996 Sept 30, 1996 (Adjusted) Total Actions Subject to Section 1407 Proceedings 79,206 13,349 92,555 16,855 109,410 Total Terminations 36,398 2,824 39,222 21,930 61,152 Total Actions Pre- senting Pending and Subjected to Section 1407 Pro- ceedings 42,808 53,333 48,258 Actions Transferred 63,318 12,767 76,085 16,094 92,179 Actions Originally Filed in Transferee Districts 15,888 582 16,470 761 17,231 Actions Terminated by Transferee Courts 32,727 2,714 35,441 21,675 57,116 Actions Reassigned to Transferor Judges within Transferee Court 279 0 279 0 279 Actions Remanded By the Panel 3,392 110 3,502 255 3,757 Source: Report of the Director, Judicial Business of the United States Courts (1995)

APPOINTMENT UNITED STATES COURT OF VETERANS APPEALS IN RE: RULES ADVISORY COMMITTEE January 7, 1998 MISC. NO. 1-98

Before NEBEKER, Chief Judge, and KRAMER, FARLEY, HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges

ORDER

It is ORDERED that the composition of the Court's Rules Advisory Committee is changed as follows:

Richard C. Thrasher, Esq., is appointed as a member of the Committee vice Richard B. Standefer, Esq.

DATED: January 7th, 1998

BY THE COURT: FRANK Q. NEBEKER Chief Judge MISC. ORDER NO. 3-97 WAS THE LAST IN THE SERIES FOR 1997

NOTICE: Court rules and related materials supplied by the courts are included. Since all rules and amendments may not have been supplied, the clerk of the appropriate court should be consulted to determine the current rules.