Using State Test Cases to Settle Multidistrict Litigation? A Comment on “Mass Litigation Governance in the Post-Class Action Era”

Abstract

Professor Glover has argued that federal multidistrict litigation would benefit from the use of full state test cases in determining the settlement value of the litigation. This comment briefly explains why federal bellwether trials—at least before judges and juries of transferor districts—are more likely to assist in the settlement of federal multidistrict litigation: First, state cases that could not have been structured to permit federal subject matter jurisdiction are not likely to be diverse enough to allow the parties to assess the value of multidistrict litigation. By contrast, cases in which federal bellwether trials will be held can be selected from the whole range of federal cases consolidated in the multidistrict litigation. Second, neither judges nor plaintiffs’ counsel—in either state or federal court—are likely to be receptive to efforts to require attorneys in state court to participate in the resolution of federal multidistrict litigation. Finally, because federal bellwether trials by definition take place in federal court, they are likely to provide more accurate data about the settlement value of federal multidistrict litigation than would equally diverse state test cases.