Left to Right – Peter Thurlow, The Honorable Bruce Selya, and his wife Cindy Selya The Honorable Bruce M. Selya, U.S. Court of Appeals, First Circuit, spoke at the New York Intellectual Property Law Association’s monthly meeting on Friday, May 21, 2004. In addition to his responsibilities on the U.S. Court of Appeals, Judge Selya sits on the Judicial Panel on Multi-District Litigation (Judicial Panel).Judge Selya’s presentation dealt with his work on the Judicial Panel, which he entitled “What You Always Wanted To Know About The Judicial Panel on Multi-District Litigation But Were Afraid to Ask.” Judge Selya made clear that the views expressed were his own, and that he did not speak for the Judicial Panel or the First Circuit.
The Judicial Panel was created in 1968, Judge Selya noted, to identify actions pending in one or more federal courts involving one or more common questions of fact, to determine whether any such actions should be transferred to a single district for pretrial proceedings,and to select a judge (or judges) before whom such pretrial proceedings shall be conducted.At or before the conclusion of pretrial proceedings, the transferred action is remanded by the Judicial Panel to the district from which it was transferred. The common types of actions that the Judicial Panel considers include air and common disasters, antitrust, contract, employment practices, and patent and trademark issues. Judge Selya noted, for example, that approximately 114,000 asbestos-related cases and 2,200 Bridgestone/Firestone tire-related cases were pending throughout the country in one or more federal courts. The Judicial Panel transferred all of these cases to federal courts in Philadelphia and Indianapolis, respectively.
The Supreme Court has weighed in on the scope of the statute in 28 U.S.C.
§ 1407, which sets forth the powers and duties of the Judicial Panel. Judge Selya noted that in Lexecon, Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26 (1998), the Court held that a district court conducting pretrial hearings pursuant to Section 1407 has no authority to invoke Section 1404(a) to assign a transferred case to itself for trial. Judge Selya further noted that, practically speaking, there are strong policy reasons for a transferee court to transfer to itself for trial cases previously assigned to it by the Judicial Panel under Section 1407. For example, during the time of the Section 1407 assignment, the transferee judge gains a solid understanding of both the facts and the legal issues involved in the case, and it makes sense for cases that have not been resolved prior to trial to be tried by the judge with the greater understanding of the case. The Judicial Panel has been vigorous, Judge Selya noted, in its efforts to secure legislation restoring the self-transfer authority. Congress apparently agrees. The Senate recently passed a “Lexecon Fix Bill” which restores the self-transfer authority, and the House is considering a similar bill.
