Shutterstock_183258623A Question of Efficiency

Will quick review of a final judgment in just one of many cases that make up a large multi-district litigation bog the MDL process down  — or make it work better?

Defense lawyers insist that consolidation of cases before a single district judge (by the U.S. Judicial Panel on Multidistrict Litigation) changes the general rule that a final judgment against a party gives it (the party) the right to take an immediate appeal. The Supreme Court will decide the issue in the coming Term. See Supreme Court Takes LIBOR Case.

While the outcome in the Supreme Court may not turn formally on the efficiency question, the issue has practical importance for clients and lawyers who participate in the MDL process.

Who Gains from Interlocutory Review

Defendants will normally not want appeals from final judgments in individual cases for the simple reason that, by definition, they will have won in the district court handling the MDL. An appeal puts that victory at risk.

If the defendants can hang on to the win, they can use it to drive down the settlement value of the entire MDL. They potentially could save tens of millions if not billions of dollars.

Plaintiffs, on the other hand, want the opposite. Prompt review by a court of appeals will give them a chance to overturn an adverse ruling. It will also reduce pressure to accept a low-ball settlement.

What the System Wants

Allowing interlocutory appeals from final judgments makes more sense from the perspective of the federal judicial system. The system wants just and right outcomes. Its ability to get them depends on correct determinations of legal issues. Review of a ruling by a single district judge on a key matter of law by a panel of appellate judges enhances the likelihood that the MDL process will yield a fair result.

Blawgletter said as much recently to a reporter from Policy and Regulatory Report, Ryan Lynch. Defendants "are having trouble", we said, with the prospect of an immediate appeal "because they  now have risk that they would prefer not to have. It's not that there is any inefficinecy  happening. It is that there is the potential that they are going to suffer a loss on something that they have [so far] won."