The U.S. Judicial Panel on Multidistrict Litigation meets several times a year to hear lawyers explain why cases pending in two or more district courts belong in just one and which district court should handle them during pretrial stages.  Lately, the Panel has rebuffed more than half of the motions to transfer (see here also), holding the multiple cases simple or unlike enough to stay where they started.

But Blawgletter takes keyboard in hand today to type of something else.  Two something elses, in fact.

Both arise often in MDL matters.  And both vex plaintiffs' lawyers who find themselves outside the groups that MDL judges appoint to manage the sprawling litigation.

The first concerns suits that the outsiders file in state court but that the defendants remove to federal court in hopes that they will merge into the mass of MDL cases and thus prove more manageable.  Motions to reverse the removals promptly follow.  But district courts often sit on the motions.

The other something else relates to fees and expenses.  In some MDLs, especially ones involving dozens and even thousands of cases, the MDL judges order all the plaintiffs and their counsel to set aside a percentage of money they receive by settlement or judgment.  The funds in the kitty will pay for the work and reimburse the expenses that members of a plaintiffs leadership committee devote to furthering the common good of all plaintiffs.

You can see why the outsider lawyers don't like these things and why the insiders don't mind them at all.

In In re Zyprexa Products Liability Litig., No. 07-3815-cv (2d Cir. Feb. 3, 2010), one of the outsiders had had enough.  The firm had 2,000 or so individual cases and wanted remands of several dozen.  It also objected to having to contribute three percent of the proceeds from the cases it believed belonged back in state court to the common MDL fund.  The district court lacked jurisdiction, the firm argued, and so lacked juridical power to issue orders in the remand-worthy cases.

The Second Circuit held that it lacked jurisdiction over the appeal because the orders in question had not matured into a final judgment.  It also chose not to take up the firm's complaints by way of mandamus.

One member of the panel, U.S. District Judge Lewis A. Kaplan, concurred.  He opined that the case warranted an "advisory" opinion that, while denying mandamus relief, illuminated the court's views of the important issues at stake.  He went on to advise that, in his view, MDL judges have broad discretion to postpone ruling on motions to remand in favor of tending to more pressing matters of case management and that they also act within their authority by setting up a common fund to compensate lawyers whose work benefits all plaintiffs.

We concur, too.